“Good
faith is a fundamental principle of international law, without
which all international law would collapse,” declared Judge
Mohammed Bedjaoui during the first week of the PrepCom. Bedjaoui
was President of the International Court of Justice when it gave
its 1996 advisory opinion on nuclear weapons, and more recently,
Algerian Foreign Minister. He delivered the keynote address to
a conference, “Good Faith, International Law, and the Elimination
of Nuclear Weapons: The Once and Future Contributions of the International
Court of Justice,” held on 1 May at the Warwick Hotel in
Geneva.
A major portion of Judge Bedjaoui’s address was devoted
to the legal significance of the addition of the phrase “good
faith” to NPT Article VI, which requires each state party
to “pursue in good faith negotiations on effective measures
… relating to nuclear disarmament”. The phrase also
figures in the Court’s unanimous formulation of the obligation,
based on NPT Article VI, “to pursue in good faith and bring
to a conclusion negotiations on nuclear disarmament in all its
aspects.” He explained that general legal principles governing
good faith negotiation as applied in the NPT context include:
- sustained upkeep of the negotiation; awareness of the interests
of the other party; and a persevering quest for an acceptable
compromise, with a willingness to contemplate modification of
one’s own position
- refraining from acts incompatible with the object and purpose
of the NPT; proscription of every initiative the effect of which
would be to render impossible the conclusion of the contemplated
disarmament treaty
- respect for the integrity of the NPT; no selectivity regarding
which provisions to implement
- a general obligation of information and communication
- prohibition of abuse of process such as fraud or deceit
- prohibition of unjustified termination of negotiations
In related observations regarding “building confidence,”
Judge Bedjaoui stated: “Today more than ever, it is important
to attribute a more decisive role to the UN in the coherent, democratic
conduct of an integrated process of nuclear disarmament, with
a realistic and reasonable schedule.”
Judge Bedjaoui also offered some fascinating comments on the 1996
opinion’s treatment of the question of legality of threat
or use of nuclear weapons. He noted the “radical incompatibility
existing in principle between the use of nuclear weapons and respect
for international humanitarian law” reflected in the opinion.
And he attributed the Court’s failure to advise that threat
or use is illegal in all circumstances to the inability of some
judges to ignore the “pseudo-scientific chiaroscuro”
of a “clean” nuclear bomb raised by some states and
referred to in paragraph 95 of the opinion.
One of the conference panels considered the strategy of returning
to the International Court of Justice to seek its advice on the
legal consequences of the disarmament obligation. Phon van den
Biesen, an Amsterdam-based lawyer, advocate before the Court,
and vice president of the International Association of Lawyers
Against Nuclear Arms (IALANA), observed that the nuclear weapon
states “pretend there are no specific obligations”
flowing from the Court’s 1996 opinion. He said it is time
for civil society to rally as it did in supporting the request
for the first opinion, and for the UN General Assembly to “break
the stalemate and ask the Court to remind the world that international
law is not just text on paper, but agreed norms and obligations.”
Representatives of organizations sponsoring the conference explained
the emerging “good faith” campaign. Among them was
John Loretz, program director of the International Physicians
for the Prevention of Nuclear War (IPPNW). He said that the initiative
to return to the Court and the International Campaign for the
Abolition of Nuclear Weapons (ICAN) complement each other.
Other speakers addressing the conference were international lawyers
and law professors and NGO analysts. Peter Weiss, vice president
of IALANA and of the Fédération Internationale des
Droits de l’Homme, called the U.S. retrogression from the
13 practical steps for nuclear disarmament agreed at the 2000
NPT conference a “clear violation” of good faith.
Professor Marcelo Kohen of the Graduate Institute of International
and Development Studies, Geneva, defended the Court’s holding
in the 1996 opinion that states are required to “conclude”
negotiations on nuclear disarmament. While that term is not found
in Article VI, it is implied by the mandate to achieve the object
and purpose of the NPT.
Professor Karima Bennoune of Rutgers Law School, USA, surveyed
the human rights critique of nuclear weapons, which she said has
been underutilized in both the human rights and disarmament fields.
She commented: “As in the area of nuclear disarmament, in
the world of human rights, all too often we see clear and repeated
violations of Article 26 of the Vienna Convention on the Law of
Treaties which stipulates that ‘Every treaty in force is
binding upon the parties to it and must be performed by them in
good faith.’ States are rarely held accountable for these
abuses.” She concluded: “Ultimately, I think that
human rights and nuclear disarmament advocates should see a common
interest in a vigorous defense of the principle of good faith
in international legal process—as it is central to both
our sets of projects.”
Ambassador Jaap Ramaker, drawing on his experience as chair of
the Comprehensive Nuclear-Test-Ban Treaty (CTBT) negotiations
in 1996 when the treaty was adopted, identified political and
legal conditions that support successful negotiations. Among them
are: prior commitments to negotiation of a treaty (both the Partial
Test Ban Treaty and the NPT identify the CTBT as an objective);
commitments regarding completion of negotiation (the NPT 1995
Principles and Objectives specified 1996); establishment of a
proper negotiating mechanism; and clear circumscription of the
scope of the negotiations.
Speaking for the New York-based Lawyers’ Committee on Nuclear
Policy, I outlined the lack of compliance with the disarmament
obligation in the last decade. There have been no negotiations,
bilateral, plurilateral, or multilateral, on the reduction and
elimination of nuclear arsenals. The only arguable exception,
the two-page 2002 U.S.-Russian agreement, was more of a confidence-building
measure, lacking provisions on verification or irreversibility.
Jacqueline Cabasso, executive director of the California-based
Western States Legal Foundation, characterized the policy of the
nuclear weapon states, in particular the USA, UK, and France,
as “fewer but newer,” and increasingly “capacity-
based.” These states, she said, cling to the notion of “deterrence”
while the “threat” they seek to deter is an unknown
and uncertain future. They are modernizing and qualitatively improving
their “enduring” nuclear arsenals, both warheads and
delivery systems.
The day-long conference attracted 90 NGOs, students, and diplomats.
It was sponsored by the World Court Project to Abolish Nuclear
Weapons, a civil society coalition formed by IALANA, IPPNW, International
Peace Bureau, World Court Project UK, International Network of
Engineers and Scientists for Global Responsibility, Mayors for
Peace, and other groups, and by the World Federation of United
Nations Associations, the Simons Foundation, and the Stiftung
Europäische Friedenspolitik. A report and speakers’
papers will be available on www.lcnp.org. •
John Burroughs is executive director of the Lawyers’
Committee on Nuclear Policy and author of The Legality of Threat
or Use of Nuclear Weapons: A Guide to the Historic Opinion of
the International Court of Justice (1997).
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