The universal obligation of nuclear disarmament

Ministry of Foreign Affairs |
Minister of State | Aloysio Nunes Ferreira
Secretary-General | Ambassador Marcos Bezerra Abbott Galvão
Alexandre de Gusmão Foundation |
President | Ambassador Sérgio Eduardo Moreira Lima
Institute of Research on International Relations |
Director | Minister Paulo Roberto de Almeida
Center for Diplomatic History and Documentation |
Deputy Director | Ambassador Gelson Fonseca Junior
Editorial Board of the Alexandre de Gusmão Foundation |
President | Ambassador Sérgio Eduardo Moreira Lima
Members | Ambassador Ronaldo Mota Sardenberg
| Ambassador Jorio Dauster Magalhães e Silva
| Ambassador Gelson Fonseca Junior
| Ambassador José Estanislau do Amaral Souza
| Minister Eduardo Paes Saboia
| Minister Paulo Roberto de Almeida
| Minister Paulo Elias Martins de Moraes
| Professor Francisco Fernando Monteoliva Doratioto
| Professor José Flávio Sombra Saraiva
| Professor Eiiti Sato

The Alexandre de Gusmão Foundation (FUNAG) was established in 1971 as a public foundation linked to the Ministry of Foreign Affairs with a goal to provide civil society with information concerning global issues and the Brazilian diplomatic agenda. The mission of the Foundation is to foster awareness of domestic public opinion regarding international relations issues and Brazilian foreign policy

Antônio Augusto Cançado Trindade

The universal obligation of nuclear disarmament

Brasília – 2017

Publishing rights reserved to

the Alexandre de Gusmão Foundation

Ministry of Foreign Affairs

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Technical Staff:

Eliane Miranda Paiva

André Luiz Ventura Ferreira

Fernanda Antunes Siqueira

Gabriela Del Rio de Rezende

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Graphic Design:

Ademir da Rosa

Cover:

Nuclear test, Bikini Atoll, 1946.

Image located in the Swedish Army Museum in Stockholm, Sweden, by

A.A. Cançado Trindade.

Visual Planning and Layout:

Gráfica e Editora Ideal

Printed in Brazil 2017

T833 Cançado Trindade, Antônio Augusto.

A obrigação universal de desarmamento nuclear/ Antônio Augusto Cançado Trindade. – Brasília : FUNAG, 2017.

233 p. - (Direito internacional)

ISBN 978-85-7631-706-7

1. Arma nuclear. 2. Desarmamento nuclear. 3. Desarmamento nuclear controlado. 4. Segurança coletiva. 5. Tratado de Não Proliferação Nuclear (1968). 6. Corte Internacional de Justiça. 7. Nações Unidas (ONU). Conselho de Segurança. I. Título. II. Série.

CDD 341.167

Depósito Legal na Fundação Biblioteca Nacional conforme Lei n° 10.994, de 14/12/2004.

CONTENTS

Foreword

Sérgio Eduardo Moreira Lima

Preface

Sergio de Queiroz Duarte

Case study – Introductory note: The Case of the Nuclear Disarmament Obligations (Marshal Islands vs. United Kingdom et alii, 2016) and Dissenting Opinion of the author, Antônio Augusto Cançado Trindade

Documentary annex – International Court of Justice, Case of the Obligations Concerning Negotiations for the Cessation of the Nuclear Arms Race and Nuclear Disarmament (Judgement of 10.5.2016): Dissenting Opinion of Judge Antônio Augusto Cançado Trindade

Books by the Same Author

FOREWORD

Sérgio Eduardo Moreira Lima*

This is the moment when we must renew the goal of a world without nuclear weapons. The two superpowers that faced each other across the wall of this city came too close too often to destroying all we have built and all that we love. With that wall gone, we need not stand idly by and watch the further spread of the deadly atom. The time has come to secure all loose nuclear materials; to stop the spread of nuclear weapons; and to reduce the arsenals from another era. This is the moment to begin the work of seeking the peace of a world without nuclear weapons.

(Barack Obama, Berlin, Germany, July 24 2008)

Introduction

This book deals with a specific case brought before the International Court of Justice (ICJ) at the Hague, which decided against its admissibility and did not consider the merit of the reasons on which it was based. The case regards atomic armament and in particular tests with explosives in regions that were under the trusteeship of the United Nations. It is a good illustration of the challenge that the question of disarmament represents for humankind and of its threat to international peace and security, as well as of the weakness of the arrangements on reduction and control of arsenals and on the non-proliferation of nuclear weapons. It also demonstrates that not always the decisions of the highest international court of justice are in accordance with the expectations and the loftiest aspirations of the community of nations.

In order to examine the case it is fitting to recall the background of the question of disarmament and put it into context while evaluating its global meaning and its implications, including with regard to the evolution of Brazilian external policy on disarmament. The year 1945 marked the start of the atomic age and the end of World War II. This paradox defined the international order and the institutions responsible for it in the context of the system of the United Nations for the maintenance of peace and security. Over seventy years after the atomic attacks on Hiroshima and Nagasaki the world is still hostage to nuclear weapons.

Efforts toward disarmament have not been enough to bring security to mankind. Many countries are engaged in promoting sustainable development and overcoming the effects of poverty and lack of education in order to realize their aspirations of life with dignity. Nevertheless, well into the 21st century we are still vulnerable to the major threat of nuclear arsenals and fissile materials used for their production. In spite of the common obligation to achieve disarmament, nuclear deterrence continues to be a part of the defense doctrines of the five nuclear powers recognized by the Treaty on the Non-proliferation of Nuclear Weapons (NPT) – China, France, Russia, United Kingdom and United States – which are also the permanent members of the Security Council of the United Nations (UNSC). This question does not involve only states, but also societies and the individuals of whom they are composed. Civil society entities work in tandem with countries to help defend their interests and the respect for the rights of their peoples. In view of the limited progress in the field of disarmament, appeals have been made to the nuclear armed countries to honor unfulfilled commitments.

Rather than depending on a voluntary attitude, disarmament is an obligation that derives from Article VI of the NPT. This position was ratified by the International Court of Justice (ICJ) in 1996, through a unanimous decision by its judges that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.”²

Over two decades after this Advisory Opinion, the ICJ again was called upon to examine a dispute regarding compliance with Article VI of the NPT. The author³ of the Application lodged with the International Court of Justice was the Marshall Islands, a republic established in 1979 and formed by an archipelago on the Pacific Ocean. It invoked that article against the nine countries possessing nuclear weapons under the argument that disarmament is not being carried out. Despite the relatively small political expression of the country, its moral authority in defense of the claim is unquestionable in view of its history as a trusteeship territory of the United Nations. In 1945 the trusteeship was temporarily transferred to the United States together with the obligation to look after its territory and its population. However, from 1946 to 1958 the United States carried out more than 60 nuclear tests in the atmosphere of the territory, causing widespread damage and displacement of native populations to escape the radiological effects of the experiments.

The Marshall Islands argue that the nine states possessing nuclear arms are not complying with the provisions of Article VI, including those that did not accede to the NPT: India, Pakistan, Israel and North Korea. The legal action argues that the Treaty should be considered part of customary international law, which must be respected by all states, whether party to the NPT or not. The expectation of many of those that followed the proceedings was that the nature of the international system – which hampers the application of international law, especially with regard to the permanent members of the UNSC – would be put to the test, thus permitting to gauge the scope of the NPT and the requirements deriving from the obligations of nuclear disarmament.

In this connection, the Advisory Opinion of the ICJ could clarify questions such as whether the modernization of nuclear arsenals is consistent with “negotiations in good faith” to end the nuclear arms race. Another important question that could be clarified regards the interpretation of “lack compliance” with General Assembly resolutions on disarmament or refusal to participate in certain initiatives on disarmament, in order to ascertain if those are violations of the obligation contained in the NPT to pursue negotiations in good faith on nuclear disarmament. The regime of nuclear arms control and non-proliferation set by the NPT, particularly in its Article VI, is especially important because it is the only legally binding commitment on nuclear disarmament contained in a multilateral treaty. Nuclear weapons are not yet explicitly prohibited, unlike the other two categories of weapons of mass destruction – chemical and biological. In this context, the idea of negotiating a new convention to ban nuclear weapons has been gaining ground. A future instrument would institute a set of legal measures related to the manufacture, possession and use of nuclear weapons.

A treaty of this kind is expected to be conceptually more precise and to provide the legal classification needed to delegitimize nuclear arms, thus contributing to their effective reduction and elimination. In any case, the treaty might set off a political process aimed at their prohibition by questioning their utility and acceptability. The merit of this process is the search for consensus on a non-discriminatory norm applicable to all possessors, including the non-signatories of the NPT. The initiative would have the additional advantage of deepening the dialogue on the issue and promote internal consultations that could permit a better informed and critical opinion at the national and international level.

Article VI of the NPT, Advisory Opinions of the ICJ, individual initiatives of interested states and the campaign for the complete prohibition of nuclear weapons are useful tools in the effort to reduce the value of nuclear armament and move forward toward disarmament.

The decision of the Court and the idea of this book

On October 5 2016, the International Court of Justice (ICJ), the main judicial organ of the United Nations, decided by 8 votes to 8 (plus the casting vote of its President) that it did not have to recognize its jurisdiction in the disarmament case involving the Marshall Islands against the United Kingdom and two other countries (India and Pakistan), under the argument that there was no legal dispute when the application was made, in April 2014. The Court’s tight decision with the President’s casting vote highlighted the differences of opinions expressed by the dissenting votes of half of the judges and surprised many observers. By not taking into consideration that the claim of the Marshall Islands is based on divergent positions that have for long divided the majority of nations, on the one hand, and a small group of military powers that possess nuclear arsenals, on the other, the Court’s decision frustrated the expectation that by examining the merit of the case the Court could have clarified questions that might contribute to a clear understanding of the obligations incumbent on the Parties to the NPT, particularly its Article VI.

The clash of views of the judges did not settle the question of determining whether the possessors of nuclear weapons are acting in conformity with the unanimous conclusion of the Court in its 1996 Advisory Opinion, when it recognized, in paragraph 5, the existence of an obligation, to be carried out in good faith, to bring to a conclusion negotiations leading to nuclear disarmament in all its aspects. As the judges holding dissenting opinions also demonstrated, the Court did not ascribe sufficient weight to the articulation of prior claims in multilateral forums and neither did it take into consideration the clearly divergent positions taken by the Marshall Islands and the respondent states in the legal proceedings after the start of the case.

Several specialists who followed the proceedings at the ICJ have voiced the expectation that the Court may, in the future, fulfill its responsibilities as the main judicial organ of the United Nations for the application of international law on fundamental questions regarding international peace and security, as in the case of nuclear weapons that affect the fate of the planet. These experts consider that the Court had convincingly fulfilled its function by issuing its Advisory Opinion in 1996, when it recognized the existence of an obligation to initiate and conclude negotiations leading to nuclear disarmament. Interest was expressed for the General Assembly to request from the Court a follow-up advisory opinion on the obligation to seek and conclude nuclear disarmament negotiations and an evaluation of compliance with that obligation on the part of states, in particular those that possess nuclear arsenals.⁴

The nuclear-weapon states recognize the need to seek the final objective of nuclear disarmament, but claim that current conditions do not permit its achievement (although, in fact, such “conditions” were never clearly spelled out). The states that did not accept the compulsory jurisdiction of the Court – China, DPRK, France, Israel, Russia and United States – ignored – or in the case of China, declined – the request of the Marshall Islands, submitted in accordance with the statutory norms of the ICJ, to appear voluntarily before the Court to defend their record with regard to nuclear disarmament. For their part, the three states that accepted the compulsory jurisdiction of the ICJ – India, Pakistan and United Kingdom – responded vigorously in several ways by invoking different arguments, mostly of a formal nature, against a judgment by the Court on the merit of the claims of the Marshall Islands. In that manner, the possessors of nuclear weapons managed to excuse themselves from defending substantively their positions with regard to the obligation to negotiate nuclear disarmament. Their posture was interpreted by analysts as representing a lack of commitment to the implementation and development of the relevant instruments of international law.

The frustration of the Republic of the Marshall Islands with the ICJ’s decision should not prevent public opinion from evaluating the pertinence and value of the initiative taken by authorities of that country. That action must be seen as a contribution to raising the awareness of the international community not only with regard to the tragic experience of the country, linked to its past under the United Nations trusteeship, but also to the importance of compliance, by the nuclear-weapon states, with the legal obligation to negotiate and achieve the complete elimination of nuclear arms. The initiative stimulates the debate on the issue.

The dissenting vote of the Brazilian Judge

Professor Antônio Augusto Cançado Trindade, a member of the International Court of Justice, was one of the judges who took a position in favor of examining the merits of the question and of the Court’s competence to consider it. He challenged the prevailing view that the Application by the Marshall Islands was not admissible because of there was an absence of prior dispute between the parties before the Court. By taking that position, he presented a Dissenting Vote questioning the formalistic approach which “hampers the very access to justice in a matter of concern for mankind as a whole.” Next, the Brazilian Judge made an authoritative examination of the Resolutions of the General Assembly of the United Nations on disarmament, highlighting not only the importance of the issue for the survival of civilization but also stressing the need for compliance with the obligation to negotiate and conclude a new treaty to prohibit nuclear weapons, as was the case with bacteriological and chemical weapons. He goes on to demonstrate the way in which the obligation of “nuclear disarmament emerged and became crystallized both in conventional and customary international law,” as well as the contribution of the United Nations in that direction.

Cançado Trindade’s Dissenting Vote is strengthened by evoking the humanistic values and the foundations of the Western and universal legal system. On that basis it develops a critical view on the strategy of deterrence and on national interest when such considerations are placed above the security of humankind and recalls the opinio juris comunis on the illegality of all weapons of mass destruction. After bringing up the principles of recta ratio that derive from human conscience and from the relationship between law and ethics, his Vote evaluates the contribution of the NPT Review Conferences and of the series of conferences on the humanitarian impact of nuclear weapons and concludes that the prohibition is a matter of jus cogens. Therefore the ICJ, the main judicial organ of the United Nations, should be expected to also have in mind basic humanitarian considerations.

Under the heading “Current world events” the Brazilian Judge also deals with episodes that are relevant to the examination of the question and their political impact on human conscience and analyses the repercussions of the issue in the United Nations, including the adoption by the General Assembly in 2016 of a resolution deciding to convene a conference to negotiate an instrument prohibiting nuclear weapons with a view to achieving a world free of such arms.⁵ In view of the importance of this question and of the relevance of his Dissenting Vote, Alexandre de Gusmão Foundation invited Professor Cançado Trindade to publish in full the original English text of his vote in that judgement known as “The Case of Nuclear Disarmament Obligations (Marshall Islands vs. United Kingdom et alii, 2016)” together with an Introductory Note to facilitate the understanding and the study of the issue.

The reason for the publication

The historic and moral basis for the April 24 2014 legal action by the Marshall Islands at the ICJ was the fact that its territory had been used for the site of 67 nuclear weapon tests carried out between 1946 and 1968, during the period of the trusteeship exercised by the United States under the mandate of the United Nations. The suits were initially against all nuclear-weapon states – China, DPRK, France, India, Israel, Pakistan, Russia, United Kingdom and United States – but because of the clause on the voluntary acceptance from the jurisdiction of the Court (art. 36(2) of the Statute of the ICJ)⁶ only three of them prospered – India, United Kingdom and Pakistan. The objective of the claims was not financial compensation for damages suffered but rather the recognition that the obligations of Article VI of the Treaty on the Non-proliferation of Nuclear Weapons had not been complied with. As we have seen before, this provision contains the commitment of the Parties to the Treaty 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.”

Why publish the Dissenting Vote in book format? First, because it deals with a very serious issue in view of the risk posed to life, to humanity, to states, to regions and to the planet. However, the inability to resolve it seems to lead to attitudes of accommodation and indifference with regard to this grave problem. Civil, society, including academia, must reflect about this dilemma and its treatment as well as about the fulfillment of the mission of competent national and international office holders, in accordance with treaties. Beyond legal reasons, the Dissenting Vote is in fact a reaction against conformity and a certain tendency to overlook the potential risks and the threat of nuclear arms. Moreover, the matter is of utmost interest to Brazilian foreign policy and for international affairs in view of its implications for global peace and security. Finally, the author of the vote is one of the great Brazilian jurists enjoying international recognition and is renowned for having put forth a deep reflection and a humanistic conception of international law derived from legal practice. Cançado Trindade is the first Latin American jurist to take part in one of the most prestigious collections of international public law due to the scope and importance of his work, especially in the field of human rights.⁷

The answer to the question posed at the opening of the preceding paragraph acquires an even wider significance because it involves political, legal and ethical arguments. One way or another, it has to do with the international order and the role of power in the relations among states. In view of the complexity of the question, FUNAG commissioned the Preface of this book to Ambassador Sergio de Queiroz Duarte, one of the most distinguished specialists in the field of nuclear disarmament, who was High Representative of the United Nations and Head of the United Nations Office for Disarmament Affairs (ODA) from 2007 to 2012, and previously held the positions of President of the 2005 NPT Review Conference and Chairman of the Board of Governors of the International Atomic Energy Agency (IAEA) for the period 1999-2000. From 1979 to 1985 Sergio Duarte was Alternate Representative of Brazil to the Conference on Disarmament in Geneva. A longtime collaborator with FUNAG, he authored recently the book Disarmament and related issues (2014) as part of the “Em Poucas Palavras” collection, where the question of disarmament is analyzed from a Brazilian perspective as one of the great global causes that inspired the action of statesmen, leaders, diplomats and civil society organizations.

Nuclear disarmament is a historic and morally uncomfortable formulation for the armed countries. They looked for other concepts like arms control and nuclear non-proliferation as a euphemism, a way to share the onus of the legal and moral obligation to disarm with other countries that might end up by developing a capacity to produce atomic devices for military purposes. It is clear that the greater the number of countries having this capability, the greater the probability of multiplication of armaments and the risk of their use. It is equally clear that in this case there is a greater risk that lethal arms and material may fall into the hands of terrorist groups. However, one cannot lose sight of the fact that the current problems derive from the interest of the superpowers – the United States and the former Soviet Union – to promote from the 1950’s onwards arms control and non-proliferation initiatives that resulted, in the following decade, in the signature by the three main nuclear powers (USA, USSR and UK) of the Treaty on the Non-proliferation of Nuclear weapons (NPT) in 1968.8

The NPT entered into force for its signatories in 1970. In the expression coined by Ambassador João Augusto de Araújo Castro, the treaty was an attempt at “freezing world power” to the advantage of the big powers, including because of restrictions imposed on development.⁹ It established an arbitrary division between the countries that by January 1 1968 had detonated an explosive nuclear device, on the one hand, and all remaining nations on the other. According to the Treaty, the latter formed a second category of countries not possessing nuclear armament. The objective was to promote the renunciation of the possibility to develop nuclear weapons and to legitimize the possessors of such arms, who would be able to keep their arsenals under the protection of international law. Araújo Castro and the Brazilian government were concerned about accepting a discriminatory norm that ironically divided the world between responsible and irresponsible countries, that is, respectively, the armed and the unarmed. Above all, the latter were the object of prohibitions that in principle would render more difficult, and even prevent, their access to technology and their ability to develop. Moreover, such a provision went against the westphalian principle of equality among nations recognized at the 1907 Hague Peace Conference with the contribution of the Head of the Brazilian Delegation, Rui Barbosa.

Despite the merit of these considerations and their importance for the establishment of a fairer international order in consonance with the universal values of multilateralism, the Brazilian government decided to request permission from the National Congress to accede to the NPT, in a change of course encouraged by the prospect of changes resulting from the fall of the Berlin Wall, the dissolution of the Soviet Union and the end of the bipolar international system. The following reasons were spelled out in the Message from the Executive: a) the changes in international relations, particularly with the end of the Cold War; b) the “transformations undergone by the NPT, which from an instrument of freezing of power is becoming a mechanism of progress toward disarmament and non-proliferation”; c) the shift in the strategic panorama with the end of the division between two military alliances predicated on nuclear deterrence and the inescapable trend toward globalization; d) the fact that “a new convergence of values and objectives among practically all members of the international community is being affirmed, aiming at guaranteeing security through non-aggressive means, by disarmament and the non-proliferation of weapons of mass destruction;” e) the transformation of the NPT at the 1995 Conference from a provisional agreement (25-year validity) into a permanent treaty of indefinite duration with a review mechanism every five years; f) Brazil should become a Party and have a seat at the Preparatory Committee in order to be able to influence the review process and shape it in accordance with our concerns. The Message to the Congress concluded by stating that the decision to become a party to the NPT “represents our willingness to bring the contribution expected from a country the size of Brazil to the consolidation of the common values of the international community in the fields of non-proliferation, disarmament and peaceful uses of nuclear energy.”¹⁰

On September 18 1998, on the occasion of the deposit of the instrument of accession to the Treaty on the Non-proliferation of Nuclear Weapons, Brazil stated, in the words of its then Minister of External Relations, that this was “the result of our firm commitment to use nuclear energy exclusively for peaceful purposes, as enshrined in the Brazilian Constitution.¹¹ We believe that Brazil has a positive role to play in the world… which must be proportional to our global interest.” He mentioned the example of the achievement by Brazil and Argentina with the creation of the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials (ABACC), substituting the logic of cooperation for that of confrontation. And he chided the nuclear-armed states, which share a great responsibility, about the fact that progress in the reduction of the arsenals “are still much below what is necessary to attain the objective of nuclear disarmament.” He reiterated the belief that disarmament and non-proliferation are indivisible concepts and that international cooperation or the peaceful uses of energy is one of the requirements of a stronger non-proliferation regime.¹²

After almost two decades since the accession to the NPT, it is fitting to ask about the evolution of the commitment that Brazil and other countries expected to receive from the nuclear weapon countries in exchange for changing its historic position in the hope of strengthening its voice in the search for a more adequate and effective non-proliferation regime that could contribute more efficiently to international peace and security. Brazil’s objective was the reduction of nuclear armament. However, the current situation is not encouraging, as can be seen in the reasons presented in the Dissenting Vote of Judge Cançado Trindade and corroborated by the statistics made available by specialized organizations, such as the Stockholm Peace Research Institute (SIPRI). According to the 2016 SIPRI Yearbook on Armament, Disarmament and International Security, despite a decrease in the total number of nuclear warheads in the world, the pace of reductions seems to be ever slower and none of the parties made significant reductions in its strategic nuclear forces since 2011.13 Moreover, both the United states and Russia are expanding their extensive and expensive programs of modernization of their launching systems, warheads and related industrial facilities. According to the same source, the same trend is visible in other nuclear weapon countries, although in this case the verification ability is hindered by “inadequate transparency.”¹⁴

In spite of the rhetoric of presidential candidate Barack Obama, quoted in the beginning of this book, and of his 2009 Prague speech already as president, the American arsenal was modernized and became more sophisticated, rather than reduced, during his eight years in the White House.¹⁵ At the Czech capital, president Obama warned that

(…) the existence of thousands of nuclear weapons is the most dangerous legacy of the Cold War (…) Today the Cold War has disappeared but thousands of nuclear weapons have not. In a strange turn of history, the threat of global nuclear war has gone down, but the risk of a nuclear attack has gone up. More nations have acquired these weapons. Testing has continued. Black market trade of nuclear secrets and nuclear materials abound. The technology to build a bomb has spread. Terrorists are determined to buy, build or steal one. Our efforts to contain these dangers are centered on a global non-proliferation regime, but as more nations and people break the rules, we could reach the point where the center cannot hold.

The election of Donald Trump to the presidency of the United States and challenges like those posed by North Korea, Iran, Russia and sectarian terrorism do not seem to signal a reduction of the growing investment in the modernization and replacement of American strategic arms with more sophisticated and lasting ones. At the same time, technological development and the advancements in offensive and defensive systems, including cyber systems, may change the security conditions as we know them today, as well as military doctrines and concepts, with an impact on international agreements. In any case, a serious danger to mankind persists, as Obama has warned us, together with the fear of a new nuclear arms race.

In a speech made on April 28 2015, during the Review Conference of the Parties to the Treaty on the Non-proliferation of Nuclear Weapons (NPT) the then Representative of Brazil to the United Nations, Antonio de Aguiar Patriota, criticized the lack of implementation of important commitments. He stated that Brazil is concerned with “the lack of real and irreversible progress in disarmament” and said further that Brazil “cannot accept that the burden of the NPT Regime continue to fall exclusively on the non-nuclear-weapon states, with the increasing imposition of obligations that affect only those who already faithfully comply with their Treaty obligations.¹⁶

At the close of the IX NPT Review Conference the Brazilian government expressed its frustration with the lack of consensus for the adoption of a substantive final document. Seventy years after the bombings of Hiroshima and Nagasaki, Brazil voiced its disappointment with the absence of progress in the implementation of Article VI of the Treaty regarding the commitments to nuclear disarmament and regretted the lack of decisions that would refer the debate of the issue to the General Assembly of the United Nations, particularly on effective measures leading to the prohibition and elimination of nuclear arsenals.

In October 2016, at the I Committee, Brazil sponsored together with Austria, Chile, Indonesia, Mexico, South Africa and New Zealand, among others, the draft resolution A/C.1/71/L.41 entitled “Taking forward multilateral disarmament negotiations” to convene a United Nations Conference in 2017 charged with negotiating a legally binding instrument to prohibit nuclear weapons, with a view to their complete elimination. The draft was adopted by the General Assembly on December 23 2016 as Resolution 71/258 with the affirmative vote of over two-thirds of member States. The Conference will be held in the first half of 2017. The organizational Session is scheduled for February 16, and the substantive Sessions for March 27 to 31 and June 15 to July 7.

The history of all efforts mentioned above, including the evolution of the Brazilian policy on the matter and the current situation of armaments and the programs of improvement of arsenals will help the reader to better understand disarmament and proliferation as well as to reflect on the prospects, both for nuclear-weapon states and for those that accepted the commitment not to produce such weapons, in accordance with the NPT. I am persuaded that the information contained in this book and the reasons presented in the Dissenting Vote of the Brazilian judge at the Hague in the case Marshall Islands vs. United Kingdom will enrich the reflection and the consequent analysis. This is the first title to appear in FUNAG’s International Law Collection.

PREFACE

Sergio de Queiroz Duarte*

Introduction

The territory of the Republic of the Marshall Islands is located in the region of the Pacific Ocean known as Micronesia. It comprises 29 coral atolls and more than one thousand islands and islets originally peopled by native populations and later occupied successively by Spaniards, Germans and Japanese. During World War II the United States conquered the islands. In 1947 they were declared “Strategic Territory” under American trusteeship and the United States committed to “promote the progress and the self-sufficiency of the inhabitants and for the purpose […] to protect them against the loss of their lands and resources.” In 1986 the islands obtained full sovereignty by means of an agreement of free association with that country and in 1991 the Republic of the Marshall Islands was accepted as a Member State of the United Nations.

Map of the territory of the Republic of the Marshall Islands

Castle Bravo nuclear test – March 1 1954

Still during the period of trusteeship, between 1946 and 1968 several of the atolls, particularly Bikini and Eniwetok, were used by the United States to carry out a total of 67 tests of nuclear weapons in the atmosphere. The inhabitants were transferred to other parts of the archipelago. The most powerful series of tests was the one known as Castle, between March 1 and May 1954, totaling 48 megatons. The first of such tests, codenamed Bravo, a 15 megaton thermonuclear detonation equivalent to one thousand times the power of the bomb used against Hiroshima¹⁸, created a crater 150 feet deep and over one mile in diameter. The fallout spread for over 42 square miles. The cloud resulting from the explosion contained 30 times more radioactive iodine than the Chernobyl and Fukushima disasters taken together.

The 67 experiments lasted for twelve years, during which the remaining islands and atolls also underwent serious damage. Some were completely evacuated by the American Navy. Food and drinking water were constantly contaminated. People vomited and their hair started to fall. Blisters and burns covered their skin. The incidence of cancer increased disproportionately as did that of infant malformations, cardiac, thyroid, lungs, bones and digestive tract diseases. Hundreds of tons of fish and other seafood caught by fishing vessels were contaminated and had to be destroyed.

The population of Bikini that had returned in 1969 was again evacuated in 1978 when excessive exposure to radiation was detected. Dwellers who had been transferred to other islands and later taken back to their homes had to leave them again in 1985. Up to the present moment radioactive cleansing and the setting of radiation limits both before and after the emancipation of the Marshall Islands are not considered satisfactory by the population of the new country.

The Free Association Agreement instituted a 150 million dollar fund as “total and final compensation” for all legal claims against the American government. A clause prohibited the inhabitants of the archipelago to seek further legal reparation from the United States and voided all existing legal demands. In 1998 a special Court was created to settle claims related to the nuclear tests. Up to now the amounts paid as compensation for personal and material damages caused by the tests are considered insufficient by the population and the government of the Marshall Islands.

Recent legal actions

In 2014 the Republic of the Marshall Islands filed two lawsuits: one before the International Court of Justice, in the Hague, against the nine countries possessing nuclear weapons (China, DPRK, United States, France, India, Israel, Pakistan, Russia and United Kingdom) and another before a federal American Court in San Francisco, against the government of the United States. Both claims were based on the text of the Treaty on the Non-proliferation of Nuclear Weapons (NPT) and on the unanimous Advisory Opinion of the ICJ that “there exists a legally binding obligation to pursue in good faith and bring to a conclusion negotiations for the cessation at an early date of the nuclear arms race and for nuclear disarmament, and on a treaty of general and complete disarmament under strict and effective international control”. Both lawsuits are also based on the so-called “humanitarian initiative” that gained weight in the international community since the 2010 NPT Review Conference.

Only three of the nine possessors of nuclear weapons – Pakistan, India and the United Kingdom – recognize the compulsory jurisdiction of the ICJ and for this reason they sent representatives to the Hague. The others – China, DPRK, France, Israel, Russia and the United States – were not represented at the proceedings. The DPRK, India, Israel and Pakistan are not Parties to the NPT.

The Court examined initially the preliminary exception raised by the United Kingdom, which claimed that there was no controversy between the parties and therefore the lawsuit was not admissible under the Statutes of the ICJ. The judges voted 8 to 9, including the vote of the President, to uphold the exception raised by the UK. In consequence, it was considered unnecessary to deal with the remaining preliminaries raised and the merit of the question was not examined.

Several judges presented separate opinions and votes. The Dissenting Vote of the Brazilian Judge Antônio Augusto Cançado Trindade is the most extensive and reasoned among the manifestations of the magistrates. After examining in detail the successive Resolutions of the General Assembly and the Security Council on questions of disarmament and international security, Cançado Trindade considered the strategy of nuclear deterrence groundless and questioned the legality of nuclear armament recalling the principle of juridical equality of states, the need for a people-centered approach and the fundamental right to life. He stressed that opinion juris became a key element in the formation of the norms of customary international law and “this diminished the unilateral influence of the most powerful states, fostering international law-making in fulfilment of the public interest and in pursuance of the common good of the international community as a whole”. In his view, a small group of states – such as the possessors of nuclear weapons – cannot overlook or minimize the reiterated resolutions adopted by the General Assembly and by the Security Council merely because they voted against or abstained. Once adopted, such resolution must be valid for all member States, as they are resolutions of the United Nations itself, and not only of the wide majority voting in favor. Therefore, he argued, they possess a normative value.

The final paragraph of Judge Cançado Trindade’s vote deserves to be quoted in full:

A world with arsenals of nuclear weapons, like ours, is bound to destroy its past, dangerously threatens the present, and has no future at all. Nuclear weapons pave the way into nothingness. In my understanding, the International Court of Justice, as the principal judicial organ of the United Nations, should, in the present Judgment, have shown sensitivity in this respect, and should have given its contribution to a matter which is a major concern of the vulnerable international community, and indeed of humankind as a whole.

The impact of the lawsuit

Although six among the nine accused states declined to send representatives to the Court for that judgment, it is impossible to deny the relevance of the current debate within the multilateral organs of the United Nations and civil society organizations on the legitimacy of the indefinite possession and constant improvement of nuclear arsenals, as well as on the legality of its use and the need for urgent and legally binding measures of nuclear disarmament. The very differences of opinion among the judges contained in their declarations and separate votes demonstrate the relevance of the issue. During the proceedings at the Court one of the points brought to the consideration of the magistrates was the degree of the commitment of the nuclear-weapon states to disarmament, as expressed by their votes and attitudes in multilateral forums. Not having examined the merit of the question, the Court did not take into account elements such as the positions of those states over time in the votes on relations at the General Assembly, their cooperation and participation in multilateral forums or the growth and improvement of their arsenals, as well as their defense and security policies that do not contemplate the possibility of disarmament and admit the use of nuclear weapons even against countries that do not possess them.

According to the opinion expressed by the Brazilian Judge, there exists a common understanding with regard to nuclear disarmament, making the international legislation (including the NPT) a part of customary international law and compulsory for all states, even those that are not party to that instrument. Therefore, all states, without exception, would be obliged to comply with the provisions of Article VI of that Treaty. The votes and divergent opinions of several judges regarding the conclusions of the Court suggest new paths in the multilateral treatment of the question. Two of the judges expressed doubts about the result of lawsuits in bilateral tribunals and speculated about the scope and competence of the international courts of law. It would be interesting, for example, to examine the hypothesis of the multilateral consideration of a decision by the ICJ in which a single state would be considered in breach of obligations contained in treaties on disarmament and arms control.¹⁹

The international community has long been concerned with the humanitarian and environmental aspects deriving from the existence and the possibility of use of weapons of mass destruction. The Charter of the United Nations does not mention nuclear arms because the first experimental detonation occurred on July 16 1945, inaugurating the proliferation of such weapons a little over two weeks after the adoption of that instrument, on June 26 of the same year. The first Resolution of the General Assembly, however, on January 1946, dealt with “the problems raised by the discovery of nuclear energy” and created a Commission charged, inter alia, with making proposals on the “elimination of nuclear weapons and other weapons adaptable to mass destruction.” Divergences due to the mistrust and hostility between the two main powers prevented any multilateral progress toward the elimination of nuclear armaments. Gradually, partial measures started to be adopted, all of them aiming at preventing other states from acquiring nuclear weapons. Even so, seven other nations came to possess them besides the two original proliferators. The other two categories of weapons of mass destruction – bacteriological (biological) and chemical – were eventually banned, respectively in 1972 and 1996, by means of instruments that are today recognized as part of customary international law. The use of chemical and bacteriological weapons became universally unacceptable because of their cruel and indiscriminate effects. For this reason, with the support of the member States of the United Nations, the Secretary-General appointed a committee charged with verifying allegations of use of chemical weapons in Syria, although that country was not a Party to the Convention that prohibited such weapons. As a result of international pressure, Syria adhered to that instrument.

During the last decade the interest of the international community for the humanitarian aspects related to the use of nuclear arms has grown considerably. The 2010 NPT Review Conference expressed unanimously concern with “the catastrophic humanitarian consequences of any use of nuclear weapons” and called upon all states “to comply with applicable international law, including international humanitarian law.” At the 2015 NPT Review Conference a “humanitarian pledge” to “stigmatize, prohibit and eliminate” nuclear weapons was supported by a large majority of states. Three international conferences, in 2013 and 2014, examined the consequences of nuclear weapon detonations from the angle of the specific characteristics of these military devices: not only their ability to extinguish in a cruel and indiscriminate way the life of large populations but also their effect on the environment, the economy and the welfare of future generations. The most recent of such conferences, held in Vienna, concluded that

the impact of a nuclear weapon detonation, irrespective of the cause, would not be constrained by national borders and could have regional and even global consequences, causing destruction, death and displacement as well as profound and long-term damage to the environment, climate, human health and well-being, socioeconomic development, social order and could even threaten the survival of humankind.

The texts of the main multilateral instruments in the field of nuclear armaments also show those concerns. Already in 1963 the Partial Test Ban Treaty (PTBT) mentioned the importance of avoiding the contamination of the human environment by radioactive substances and in 1996 the Comprehensive Test Ban Treaty (CTBT) stressed the contribution of that instrument to the protection of the environment. Although the latter Treaty has not yet formally entered into force²⁰, it created a strong standard of international behavior that does not admit the carrying out of experimental nuclear explosions.²¹ Since 1992 none of the two main powers has carried out such tests. With the exception of the DPRK, no other country did the same after 1998. The concern of the international community with the impact of the use of nuclear weapons is expressed in several multilateral texts, such as the Preamble of the 1967 Treaty of Tlatelolco, which mentions the “terrible” and “indiscriminate effects” of nuclear weapons, which constitute “an attack on the integrity of the human species and ultimately, may even render the whole earth uninhabitable”, as well as the Preamble of the 1970 NPT, which calls attention to “the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples.”

It is important to note that the Hague Court recognized the Republic of the Marshall Islands’ “special reason for concern” over nuclear armament. By recognizing the existence of a non-nuclear weapon State’s special interest in this question, the Court may have opened the way for other states actually or potentially affected by their accidental or willful use, beyond the current possessors, to invoke relevant reasons in support of their claims or the adoption of measures to settle such claims. In view of the possible planetary consequences of a nuclear detonation, wherever it may occur, any State may consider itself affected. The possibility that a new lawsuit based on humanitarian principles might be favorably accepted in the future cannot be excluded.

The result of the claims raised by the Marshall Islands demonstrates, however, the difficulty of making the nuclear armed countries legally accountable for their lack of compliance with disarmament obligations and to compel them to respect such commitment through legal action. Some commentators note that the International Court of Justice has avoided taking decisive action on matters regarding international security, particularly in what regards nuclear armament in cases that involve the interest of the big powers. Moreover, acceptance of the jurisdiction of the Court is voluntary.

As would be expected, mainstream media in nuclear armed states, including in more open societies, did not pay much attention to the judgment in the Hague on the Marshall Islands Application. Nevertheless, the contradictions inherent to the positions of the nuclear powers and their allies became evident to public opinion. Those countries profess to the committed to nuclear disarmament but do not show a clear willingness to achieve it. Much to the contrary, they systematically oppose, in international forums, any initiative aiming at the adoption of concrete, legally binding measures of disarmament and continue to justify the possession and the possibility of use of their atomic armament while increasing its destructive capability. Quantitative reductions made over time by the two main nuclear powers through bilateral agreements as well as unilateral limitations set by some others reflect the need to save and optimize financial resources rather than a real commitment with the remainder of the international community for the attainment of that objective. In fact, such reductions seem to be taken as an end in themselves and do not contemplate the final elimination of nuclear arsenals. Up to now, no nuclear weapon was ever destroyed or dismantled as a result of a multilateral agreement.

By challenging the legitimacy and the legality of the possession and use of nuclear arms, the Applications lodged by the Republic of the Marshall before the ICJ Islands show the emergence of a new approach to the complex and thorny question of nuclear disarmament on the eve of the start of a new cycle of review of the Treaty on the Non-proliferation of Nuclear Weapons. The first of three preparatory conferences will be held in April/May 2017 and the next review Conference shall take place in 2020.

At the 71st Session of the United Nations General Assembly in 2016 Brazil proposed together with Austria, Chile, Indonesia, Mexico, South Africa and New Zealand the negotiation of a legally binding instrument for the prohibition of nuclear weapons, leading to their complete elimination. Fifty-seven states co-sponsored a draft on which was adopted by 113 votes in favor, 38 against and 16 abstentions on December 23 2016 as Resolution 71/258. These results show some differences of perception and attitudes among nuclear states and also among those that have agreements with such states contemplating the use of nuclear weapons. France, Israel, United Kingdom, Russia and United States voted against the resolution, while China, India and Pakistan abstained. The DPRK voted in favor. Some former Soviet republics, such as Belarus and Kirghistan also abstained, as did Western European states such as Finland and Switzerland. The abstention of the Netherlands, a member of NATO, was at least in part motivated by the pressure of public opinion at its Parliament.

Participation in the future negotiation is open to all states and international organizations, as well as to representatives of civil society organizations. The Conference will be held for one week in March and three weeks in June and July 2017. Despite the initial negative reaction of some nuclear weapon states and their allies the result of the vote on Resolution 71/258 increased the optimism of the proponents of nuclear disarmament and may be attributed to a considerable extent to the influence of the global movement for the outlawing and final elimination of nuclear weapons. The initiative of new agreements in the field of disarmament is now in the hands of the non-possessors of atomic weapons, while possessors now find themselves on the defensive.²² For the first time the negotiation of an international instrument in the field of disarmament and security under the aegis of the United Nations to be subscribed by states will allow for the direct participation and contribution of non-governmental entities.

It is important that in this pioneering endeavor advocates of both sides of the argument avoid unnecessary and counter-productive confrontation and recriminations and instead utilize their power of persuasion to ensure constructive participation by all interested parties in the effort to enhance international security with the achievement of the complete elimination of atomic arms. Universality of international agreements in the field of disarmament and absolute trust that their provisions will be complied with in good faith are essential requirements for their effectiveness and permanence. Discriminatory agreements are doomed to failure as they fuel divergence and will not last for long. No pact can be successful if it does not contemplate adequately the legitimate interests of all its parties.

CASE STUDY – INTRODUCTORY NOTE

THE CASE OF NUCLEAR DISARMAMENT OBLIGATIONS (MARSHALL ISLANDS VS. UNITED KINGDOM ET ALII, 2016) AND DISSENTING OPINION OF THE AUTHOR, ANTÔNIO AUGUSTO CANÇADO TRINDADE²³

I – The Nuclear Weapons case before the ICJ

The case of Obligations Concerning Negotiations Relating to the Cessation of the Nuclear Arms Race and on Nuclear Disarmament (henceforth the Nuclear Weapons case) was brought before the International Court of Justice by the Marshall Islands on 24 April 2014. Originally, the Application lodged by Marshall Islands involved all nuclear-weapon states (China, DPRK, France, India, Israel, Pakistan, Russian Federation, United Kingdom and United States) but only three suits were carried forward (India, Pakistan and United Kingdom) based on the acceptance of the optional clause of compulsory jurisdiction of the Court [article 36 (2) of the Statutes of the ICJ].

1. The judgement of the ICJ

The three respondent states raised a number of preliminary exceptions regarding the jurisdiction and admissibility. The public hearings on the preliminary exceptions (with the presence of the applicant State, the Marshall Islands, and two of the respondents, the United Kingdom and India), took place before the ICJ from 9 to 16 March 2016. I shall concentrate on the lawsuit by the Marshall Islands against the United Kingdom in the following brief note on the proceedings. In its judgement of 5 October 2016, the ICJ started by drawing a brief historic account of the case, in particular with regard to the action of the United Nations on nuclear disarmament (paragraphs 15-21).

After referring to the other lawsuits brought by the Marshall Islands, the ICJ indicated, with regard to the cas d’espèce, that it would limit itself to the consideration of the preliminary exception raised by the United Kingdom, according to which the Marshall Islands had not demonstrated the existence, at the time of the Application, of a legal controversy between the contending parties in the dispute (paragraphs 22-25). According to the ICJ, the two recent speeches made by the Marshall Islands (at the 26 September 2013 High Level Meeting of the United Nations General Assembly, and at the 13 February 2014 Nayarit Conference on the Humanitarian Impact of Nuclear Weapons) were not sufficient, in its opinion, to demonstrate the existence of a legal dispute between the Marshall Islands and the United Kingdom concerning the obligation, either under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT, of 1968), or under corresponding customary international law.

By applying a high (and unprecedented) requirement to demonstrate the existence of a legal controversy, the ICJ understood that it was not demonstrated that the United Kingdom was aware of a dispute between itself and the Marshall Islands (awareness test). Thus, by rejecting the arguments of the Marshall Islands, the ICJ accepted the first preliminary exception raised by the United Kingdom and declared itself without jurisdiction to examine the suit under Article 36(2) of its Statute.

The Court considered therefore not necessary to take up the suit by the Marshall Islands. This was the first time ever that the ICJ declared that it did not have jurisdiction for the sole reason of the absence of a dispute. The unprecedented decision by the ICJ on the lack of jurisdiction because of the absence of a legal dispute was taken by 8 votes to 8, with the casting vote of its president. On the ocasion, I presented my extensive and forceful dissenting opinion.

2. The author’s dissidence

In my Dissenting Opinion, annexed to the Court’s judgement of 5 October of 2016, and composed of 21 parts, I stressed that the new and high requirement of the ICJ to demonstrate the existence of a legal dispute was unprecedented in the jurisprudence constante of the Hague Court (CPJI and ICJ), and is in contradiction with it since its historic beginnings. This new requirement (awareness test) – I added – besides being formalistic and artificial, creates an undue and regretful obstacle for the very access to justice in a matter of concern for humankind as a whole.

After demonstrating that contradiction, I went on, in my Dissenting Opinion, to examine the distinct series of resolutions of the UN General Assembly, in which it warns against the dangers of the nuclear arms race to humankind and to the survival of civilization. There are four such series of General Assembly resolutions, namely: a) resolutions on the importance of nuclear disarmament (1961-1981); b) resolutions on the freezing of nuclear weapons (1982-1992); c) resolutions on the condemnation of nuclear weapons (1982-2015); and d) resolutions on the follow-up of the 1996 Advisory Opinion of the ICJ (1996-2015).

Next, I pondered that those resolutions of the General Assembly call upon all states to comply promptly with the obligation to conclude a new Treaty on the Prohibition of Nuclear Weapons (as, for instance, do the already existing Conventions on bacteriological and chemical weapons) and recalled, in this connection, the Antarctic Treaty, the five Treaties establishing Denuclearized Zones (Tlatelolco, 1967; Rarotonga, 1985; Bangkok, 1995; Pelindaba, 1996 and Semipalatinsk, 2006) and their respective Protocols, as well as the status of Mongolia as a nuclear-weapon free country. I also examined the resolutions of the United Nations Security Council on the obligation to pursue negotiations in good faith about nuclear disarmament.

In effect, I recalled that, already in 1961 the General Assembly of the United Nations adopted, [through Resolution 1653(XVI)] the “Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons”, which remains contemporary today, 55 years later. In my perception – I continued in my Dissenting Opinion – the obligation of nuclear disarmament emerged and crystallized both in conventional and customary international law and the United Nations has been giving a most valuable contribution in that direction.

The fact that the Conventions on the Prohibition of Bacteriological Weapons (1972) and Chemical Weapons (1993) exist already for many years, while a Convention on Nuclear Weapons does not exist, is a legal absurdity. Positivists – I added – can only see the individual consent of states. It was precisely with the purpose of widening the horizon that I deemed it fit to formulate questions to the contending parties present (Marshall Islands, India and United Kingdom), at the public hearing before the Court of 16 March 2016, on the emergence of the opinio juris communis through the adoption of the series of United Nations General Assembly resolutions. The parties presented their responses in writing.

After recalling, in my Dissenting Opinion, that since the beginning of the nuclear age and up to present times the great thinkers of the world have started inquiring whether humankind has a future, I stated that it is imperative to pay attention to the respect to life and to humanist values. I reiterated the position that I have always upheld within the ICJ that the ultimate material source of international law is the universal juridical conscience. I recalled, moreover, that the Charter of the United Nations itself is attentive to peoples and to the safeguard of values that are common to humankind as a whole. Furthermore, the common denominator of the remarkable cycle of United Nations World Conferences in the 1990’s (in which I participated) was the concern with the living conditions of all human beings everywhere.

It was thus urgent – I warned in my Dissenting Opinion, – that the reasoning of the ICJ in a case as the present one went beyond the purely inter-state outlook and concentrated instead on peoples, and not on inter-state susceptibilities, in consonance with a necessarily humanist reasoning. I further warned that not even the inter-state mechanism of the contentieux before the ICJ can reduce into a strictly inter-state reasoning a case like the present one. Not at all; the principle of humanity must be taken into consideration, with the prevalence of the jus necessarium over the jus voluntarium. The general principles of law (prima principia) lie at the very foundations of any legal system – I added – and a case like the present one reveals that the raison d’humanité prevails over the raison d’État.

This being so, I proceeded in my Dissenting Opinion to a strong criticism of the strategy of deterrence through which the nuclear powers attempt to justify and impose their so-called “national security interests” upon the security of humankind as a whole. The opinio juris communis about the illegality of all weapons of mass destruction, including nuclear weapons, cannot be ignored. I added that, contrary to positivist thinking, there is an inter-relationship between law and ethics and humankind as such is also a subject of international law. Nuclear weapons are a contemporary manifestation of evil, in its perennial trajectory that goes back to the Book of Genesis.

The principles of recta ratio, that guide the lex praeceptiva, emanate from human conscience and affirm the ineluctable inter-relationship between law and ethics. In my Dissenting Opinion I also examine the contribution of the NPT Review Conferences (1975-2015) to opinio juris communis necessitatis by supporting the conventional and customary obligation of nuclear disarmament. Finally, in my Dissenting Opinion, I also examine the contribution of the series of Conferences on the Humanitarian Impact of Nuclear Weapons (Olso, 2013; Nayarit, at the start of 2014; and Vienna, at the end of 2014) which led to a better understanding of the devastating effects, also in the medium and long terms, of nuclear tests and detonations on the many victims.

It is, in sum, a jus cogens prohibition. Over time, the main organs of the United Nations, such as the General Assembly, the Security Council and the Secretary-General have brought consistent and remarkable contributions to nuclear disarmament. It is to be expected that the ICJ, as the main judicial organ of the U.N. also keep in mind basic considerations of humanity and their incidence on the examination of questions of both jurisdiction and admissibility as well as of substantive law.

A small group of countries – the possessors of nuclear weapons – cannot continue to ignore or minimize the many resolutions of the United Nations (supra) on the obligation of nuclear disarmament, valid for all member States of the U.N. It being so, my Dissenting Opinion takes a diametrically opposing position with regard to the (divided) majority of the ICJ, on the basis of fundamental principles and values. As I concluded in my Dissenting Opinion, the ICJ, as the principal judicial organ of the United Nations, should have displayed sensitivity on this matter, thus giving its contribution to nuclear disarmament, a question that constitutes one of the greatest concerns of the vulnerable international community, and in truth of humankind as a whole.

II – Current world events

During the period in which the three Nuclear Weapons cases (Marshall Islands vs. India, Pakistan and United Kingdom) were under examination at the International Court of Justice (ICJ) – from 24 April 2014 to 5 October 2016, – some pertinent events requiring attention took place in the world, as if by a conjunction of stars. Such facts seemed to show that the pains of conscience of nuclear detonations were finally surfacing and becoming manifest.

For instance, close to the start of the public hearings at the ICJ (in two of those three cases, i.e., Marshall Islands vs. India and United Kingdom) the president of France (François Hollande) acknowledged, during a visit to French Polynesia (Central Pacific) in the end of February 2016, the harmful effects (to human health and the environment) of three decades of French nuclear tests (from 1966 to 1996) on the Polynesian archipelago (a total of 193 nuclear tests), particularly in the atolls of Moruroa and Fangataufa, as well as the need to provide adequate reparation to the victims.

The French president (F. Hollande) acknowledged the “nuclear debt” of France vis-à-vis French Polynesia: without the 193 nuclear tests that were carried out there (1966-1996), – he podered, – “France would not possess nuclear weapons and, therefore, would not have nuclear deterrence.”²⁴ As a consequence of those nuclear tests, a large number of victims contracted different types of cancer and the environment was contaminated.

The French president promised to review the mechanism of reparations (which had been diminishing over the years and benefiting only a very small number of victims); he vowed to increase the reparations and public assistance to many more victims.²⁵ In order to settle the French “nuclear debt” to French Polynesia, the French president promised, in his speech of 22 February 2016 to take the necessary steps to increase the reparations due and also to render public medical services in oncology, for instance.²⁶

Another pertinent episode, – likewise demanding attention, – happened during the period of examination of the three aforementioned Nuclear Weapons cases, two months after the ICJ public hearings: the first visit of an incumbent president of the United States (Barack Obama) to Hiroshima on 27 May 2016, with immediate repercussion in international news.

The North-American president (B. Obama) characterized his visit to Hiroshima not as an apology, but as an initiative to warn against the dangers of nuclear weapons²⁷, and to awaken conscience as to the need to ensure that scientific progress is always accompanied by ethical considerations.²⁸ He stressed that technological progress must proceed together with “our own moral awakening” in the current nuclear age.²⁹

The North-American president did not make an apology, but expressed sympathy or solidarity with the victims and survivors of atomic bombs (in Hiroshima and Nagasaki), and warned against the “catastrophic consequences of nuclear weapons”.³⁰ Moreover, president B. Obama highlighted the need to cultivate the memory of the Hiroshima and Nagasaki atomic bombings³¹ and the resulting suffering that has extended for successive generations, as well as the importance of seeking “a world free of nuclear weapons”.³²

During his recent visit to Hiroshima, the North-American president B. Obama reiterated some of the points (such as the one about the “moral revolution”) that he had already taken up in his famous 2009 speech of Prague (for which he was awarded the Nobel Peace Prize). But he could have gone further in his Hiroshima visit: for example, he could finally have expressly acknowledged the existence of the obligation of nuclear disarmament and the responsibility for its fulfilment.³³ This is an obligation of all states in order to “ensure the survival of humankind”³⁴; after all, it is necessary to seek nuclear disarmament and not just the current control of armaments, by going beyond the existing nuclear status quo.³⁵

Still other pertinent facts that took place in the world during the period of the examination of the three Nuclear Weapon cases by the ICJ were the disturbing nuclear tests conducted by North Korea. The tests were promptly criticized in speeches of successive delegations at United Nations organs (cf. infra), calling all countries to work together for nuclear disarmament.

III - Repercussions at the United Nations

Soon after the delivery of the three judgments by the ICJ (of 5 October 2016) in the Nuclear Weapons cases (Marshall Islands vs. United Kingdom, India and Pakistan), the repercussions of the treatment of the matter were felt at the United Nations at the time of the submission of the Annual Report of the ICJ, as I could personally witness in the U.N. headquarters in New York. This happened not only on the occasion of the presentation (at the General Assembly and at the Security Council) of the aforementioned Annual Report 2015-2016 (the last two semesters), but also a few days later, when the I Committee of the General Assembly took a memorable decision.

It was triggered by a draft resolution originally submitted by a group of six countries (Austria, Brazil, Ireland, Mexico, Nigeria and South Africa). In a declaration made on 8 October 2016, the Secretary-General of the United Nations (Ban Ki-moon) pointed out that he had been the first UN Secretary-General to visit the Semipalatinsk nuclear test site and that was “a moving and terrifying experience” to have been “in the midst of this center of nuclear tests” of the former Soviet Union. He added that he was the first Secretary-General to participate in the ceremony at the Peace Memorial in Hiroshima.³⁶

In the debates of the I Committee of the General Assembly, several delegations urged that the vast sums of money spent on nuclear armament should be channeled to the struggle against poverty and in favour of development.³⁷ In eight meetings during more than ten days, over 150 delegations participated in the debates of the I Committee on a large number of questions, urging nuclear disarmament and considering aspects of the of international security.³⁸ Many delegations supported the convening of a conference (in 2017) to start the consideration of a Convention to prohibit nuclear weapons, against the resistance and opposition of the nuclear armed states.³⁹

At the aforementioned debates, there were also calls for the expansion of nuclear weapon free zones (cf. supra), in order to encompass also the Middle East.⁴⁰ Concern with current events in the Korean Peninsula was also expressed⁴¹ in view of the recent nuclear tests conducted by North Korea. At the close of protracted debates, the I Committee of the General Assembly adopted the Draft Resolution (doc. A/C.1/71/1.41)⁴² convening a United Nations Conference to negotiate a treaty on the prohibition of nuclear weapons, leading to their “complete elimination” to “achieve a world free of nuclear weapons”.⁴³

This draft resolution was adopted by the I Committee of the General Assembly on 27 October 2016, by 123 votes to 38, and 16 abstentions. Shortly after, the V Committee of the General Assembly started considering (beginning of November 2016) the budgetary implications of that proposal, before the taking of decision on it by the plenary of the General Assembly.⁴⁴ As one can see, the treatment of the theme of nuclear disarmament has had considerable repercussions at the United Nations, and it is necessary to keep attention to the next steps to be taken, to the benefit of humankind as a whole.

The Hague, 11.12.2016.

A.A.C.T.

DOCUMENTARY ANNEX – INTERNATIONAL COURT OF JUSTICE, CASE OF THE OBLIGATIONS CONCERNING NEGOTIATIONS FOR THE CESSATION OF THE NUCLEAR ARMS RACE AND NUCLEAR DISARMAMENT (JUDGEMENT OF 10.5.2016): DISSENTING OPINION OF JUDGE ANTÔNIO AUGUSTO CANÇADO TRINDADE

Dissenting opinion of Judge Cançado Trindade

Table of Contents

I. Prolegomena

II. The Existence of a Dispute before the Hague Court

1. Objective Determination by the Court

2. Existence of a Dispute in the Cas d’Espèce (case Marshall Islands versus United Kingdom)

3. The Threshold for the Determination of the Existence of a Dispute

4. Contentions in the Case of Marshall Islands versus United Kingdom

5. General Assessment

III. U.N. General Assembly Resolutions and Opinio Juris

1. U.N. General Assembly Resolutions on Nuclear Weapons (1961-1981)

2. U.N. General Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992)

3. U.N. General Assembly Resolutions on Nuclear Weapons as Breach of the U.N. Charter (Acknowledgment before the ICJ, 1995)

4. U.N. General Assembly Resolutions Condemning Nuclear Weapons (1982-2015)

5. U.N. General Assembly Resolutions Following up the ICJ’s 1996 Advisory Opinion (1996-2015)

IV. U.N. Security Council Resolutions and Opinio Juris

V. The Saga of the United Nations in the Condemnation of Nuclear Weapons

VI. U.N. Resolutions and the Emergence of Opinio Juris: The Positions of the Contending Parties

VII. Questions from the Bench and Responses from the Parties

VIII. Human Wickedness: From the XXIst Century Back to the Book of Genesis

IX. The Attention of the United Nations Charter to Peoples

X. Impertinence of the So-Called Monetary Gold “Principle”

XI. The Fundamental Principle of the Juridical Equality of States

XII. Unfoundedness of the Strategy of “Deterrence”

XIII. The Illegality of Nuclear Weapons and the Obligation of Nuclear Disarmament

1. The Condemnation of All Weapons of Mass Destruction

2. The Prohibition of Nuclear Weapons: The Need of a People-Centred Approach

3. The Prohibition of Nuclear Weapons: The Fundamental Right to Life

4. The Absolute Prohibitions of Jus Cogens and the Humanization of International Law

5. Pitfalls of Legal Positivism: A Rebuttal of the So-Called Lotus “Principle”

XIV. Recourse to the “Martens Clause” as an Expression of the Raison d’Humanité.

XV. Nuclear Disarmament: Jusnaturalism, the Humanist Conception and the Universality of International Law

XVI. The Principle of Humanity and the Universalist Approach: Jus Necessarium Transcending the Limitations of Jus Voluntarium

XVII. NPT Review Conferences

XVIII. The Establishment of Nuclear-Weapon-Free Zones

XIX. Conferences on the Humanitarian Impact of Nuclear Weapons (2013-2014)

1. First Conference on the Humanitarian Impact of Nuclear Weapons

2. Second Conference on the Humanitarian Impact of Nuclear Weapons

3. Third Conference on the Humanitarian Impact of Nuclear Weapons

4. Aftermath: The “Humanitarian Pledge”

XX. Final Considerations: Opinio Juris Communis Emanating from Conscience (Recta Ratio), Well Above the “Will”

XXI. Epilogue: A Recapitulation

I. Prolegomena

1. I regret not to be able to accompany the Court’s majority in the Judgment of today, 05.10.2016 in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus United Kingdom), whereby it has found that the existence of a dispute between the parties has not been established before it, and that the Court has no jurisdiction to consider the Application lodged with it by the Marshall Islands, and cannot thus proceed to the merits of the case. I entirely disagree with the present Judgment. As my dissenting position covers all points addressed in it, in its reasoning as well as in its resolutory points, I feel obliged, in the faithful exercise of the international judicial function, to lay on the records the foundations of my own position thereon.

2. In doing so, I distance myself as much as I can from the position of the Court’s split majority, so as to remain in peace with my conscience. I shall endeavor to make clear the reasons of my personal position on the matter addressed in the present Judgment, in the course of the present Dissenting Opinion. I shall begin by examining the question of the existence of a dispute before the Hague Court (its objective determination by the Court and the threshold for the determination of the existence of a dispute). I shall then turn attention to the distinct series of U.N. General Assembly resolutions on nuclear weapons and opinio juris. After surveying also U.N. Security Council resolutions and opinio juris, I shall dwell upon the saga of the United Nations in the condemnation of nuclear weapons. Next, I shall address the positions of the contending parties on U.N. resolutions and the emergence of opinio juris, and their responses to questions from the bench.

3. In logical sequence, I shall then, looking well back in time, underline the need to go beyond the strict inter-State dimension, bearing in mind the attention of the U.N. Charter to peoples. Then, after recalling the fundamental principle of the juridical equality of States, I shall dwell upon the unfoundedness of the strategy of “deterrence”. My next line of considerations pertains to the illegality of nuclear weapons and the obligation of nuclear disarmament, encompassing: a) the condemnation of all weapons of mass destruction; b) the prohibition of nuclear weapons (the need of a people-centred approach, and the fundamental right to life); c) the absolute prohibitions of jus cogens and the humanization of international law; d) pitfalls of legal positivism.

4. This will bring me to address the recourse to the “Martens clause” as an expression of the raison d’humanité. My following reflections, on nuclear disarmament, will be in the line of jusnaturalism, the humanist conception and the universality of international law; in addressing the universalist approach, I shall draw attention to the principle of humanity and the jus necessarium transcending the limitations of jus voluntarium. I shall then turn attention to the NPT Review Conferences, to the relevant establishment of nuclear-weapon-free zones, and to the Conferences on the Humanitarian Impact of Nuclear Weapons. The way will then be paved for my final considerations, on opinio juris communis emanating from conscience (recta ratio), well above the “will”, – and, last but not least, to the epilogue (recapitulation).

II. The Existence of a Dispute before the Hague Court

1. Objective Determination by the Court

5. May I start by addressing the issue of the existence of a dispute before the Hague Court. In the jurisprudence constante of the Hague Court (PCIJ and ICJ), a dispute exists when there is “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”⁴⁵. Whether there exists a dispute is a matter for “objective determination” by the Court; the “mere denial of the existence of a dispute does not prove its non-existence”⁴⁶. The Court must examine if “the claim of one party is positively opposed by the other”⁴⁷. The Court further states that “a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not be necessarily be stated expressis verbis”⁴⁸.

6. Along the last decade, the Court has deemed it fit to insist on its own faculty to proceed to the “objective determination” of the dispute. Thus, in the case of Armed Activities on the Territory of the Congo (D.R. Congo versus Rwanda, Jurisdiction and Admissibility, Judgment of 03.02.2006), for example, the ICJ has recalled that, as long ago as 1924, the PCIJ stated that “a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests” (case of Mavrommatis Palestine Concessions, Judgment of 30.08.1924, p. 11). It then added that

“For its part, the present Court has had occasion a number of times to state the following:

In order to establish the existence of a dispute, “it must be shown that the claim of one party is positively opposed by the other” (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and further, “Whether there exists an international dispute is a matter for objective determination” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 17, para. 22; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 122-123, para. 21; Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 18, para. 24) (para. 90).

7. Shortly afterwards, in its Judgment on Preliminary Objections (of 18.11.2008) in the case of the Application of the Convention against Genocide (Croatia versus Serbia), the ICJ has again recalled that

[i]n numerous cases, the Court has reiterated the general rule which it applies in this regard, namely: “the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings” (to this effect, cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 26, para. 44). (...) [I]t is normally by reference to the date of the filing of the instrument instituting proceedings that it must be determined whether those conditions are met.

(…) “What is at stake is legal certainty, respect for the principle of equality and the right of a State which has properly seised the Court to see its claims decided, when it has taken all the necessary precautions to submit the act instituting proceedings in time. (….) [T]he Court must in principle decide the question of jurisdiction on the basis of the conditions that existed at the time of the institution of the proceedings. However, it is to be recalled that the Court, like its predecessor, has also shown realism and flexibility in certain situations in which the conditions governing the Court’s jurisdiction were not fully satisfied when proceedings were initiated but were subsequently satisfied, before the Court ruled on its jurisdiction” (paras. 79-81).

8. More recently, in its Judgment on Preliminary Objections (of 01.04.2011) in the case of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination – CERD (Georgia versus Russian Federation), the ICJ has seen it fit, once again, to stress:

The Court recalls its established case law on that matter, beginning with the frequently quoted statement by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case in 1924: “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”. (Judgment n. 2, 1924, PCIJ, Series A, n. 2, p. 11). Whether there is a dispute in a given case is a matter for “objective determination” by the Court (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). “It must be shown that the claim of one party is positively opposed by the other” (South West Africa (Ethiopia and Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328; and, most recently, Armed Activities on the Territory of the Congo (New Application: 2002, D.R. Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 40, para. 90). The Court’s determination must turn on an examination of the facts. The matter is one of substance, not of form. As the Court has recognized (for example, Land and Maritime Boundary between Cameroon and Nigeria, Cameroon v. Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89), the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for. While the existence of a dispute and the undertaking of negotiations are distinct as a matter of principle, the negotiations may help demonstrate the existence of the dispute and delineate its subject-matter. The dispute must in principle exist at the time the Application is submitted to the Court (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v. United Kingdom, Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 25-26, paras. 42-44; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v. United States of America, Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 130-131, paras. 42-44) (...) (para. 30).

9. This passage of the 2011 Judgment in the case of the Application of the CERD Convention reiterates what the ICJ has held in its jurisprudence constante. Yet, shortly afterwards in that same Judgment, the ICJ has decided to apply to the facts of the case a higher threshold for the determination of the existence of a dispute, by proceeding to ascertain whether the applicant State had given the respondent State prior notice of its claim and whether the respondent State had opposed it⁴⁹. On this basis, it has concluded that no dispute had arisen between the contending parties (before August 2008). Such new requirement, however, is not consistent with the PCIJ’s and the ICJ’s jurisprudence constante on the determination of the existence of a dispute (cf. supra).

10. Now, in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, the three respondent States (India, United Kingdom and Pakistan), seek to rely on a requirement of prior notification of the claim, or the test of prior awareness of the claim of the applicant State (the Marshall Islands), for a dispute to exist under the ICJ’s Statute or general international law. Yet, nowhere can such a requirement be found in the Court’s jurisprudence constante as to the existence of a dispute: quite on the contrary, the ICJ has made clear that the position or the attitude of a party can be established by inference⁵⁰. Pursuant to the Court’s approach, it is not necessary for the respondent to oppose previously the claim by an express statement, or to express acknowledgment of the existence of a dispute.

11. The respondent States in the present case have made reference to the Court’s 2011 Judgment in the case of the Application of the CERD Convention in support of their position that prior notice of the applicant’s claim is a requirement for the existence of a dispute. Already in my Dissenting Opinion (para. 161) in that case, I have criticized the Court’s “formalistic reasoning” in determining the existence of a dispute, introducing a higher threshold that goes beyond the jurisprudence constante of the PCIJ and the ICJ itself (cf. supra).

12. As I pointed out in that Dissenting Opinion in the case of the Application of the CERD Convention,

As to the first preliminary objection, for example, the Court spent 92 paragraphs to concede that, in its view, a legal dispute at last crystallized, on 10 August 2008 (para. 93), only after the outbreak of an open and declared war between Georgia and Russia! I find that truly extraordinary: the emergence of a legal dispute only after the outbreak of widespread violence and war! Are there disputes which are quintessentially and ontologically legal, devoid of any political ingredients or considerations? I do not think so. The same formalistic reasoning leads the Court, in 70 paragraphs, to uphold the second preliminary objection, on the basis of alleged (unfulfilled) “preconditions” of its own construction, in my view at variance with its own jurisprudence constante and with the more lucid international legal doctrine (para. 161).

13. Half a decade later, I was hopeful that the Court would distance itself from the formalistic approach it adopted in the case of the Application of the CERD Convention. As it regrettably has not done so, I feel obliged to reiterate here my dissenting position on the issue, this time in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. In effect, there is no general requirement of prior notice of the applicant State’s intention to initiate proceedings before the ICJ⁵¹. It should not pass unnoticed that the purpose of the need of determination of the existence of a dispute (and its object) before the Court is to enable this latter to exercise jurisdiction properly: it is not intended to protect the respondent State, but rather and more precisely to safeguard the proper exercise of the Court’s judicial function.

14. There is no requirement under general international law that the contending parties must first “exhaust” diplomatic negotiations before lodging a case with, and instituting proceedings before, the Court (as a precondition for the existence of the dispute). There is no such requirement in general international law, nor in the ICJ’s Statute, nor in the Court’s case-law. This is precisely what the ICJ held in its Judgment on Preliminary Objections (of 11.06.1998) in the case of Land and Maritime Boundary between Cameroon and Nigeria: it clearly stated that

Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court (para. 56).

15. The Court’s statement refers to the “exhaustion” of diplomatic negotiations, – to discard the concept. In effect, there is no such a requirement in the U.N. Charter either, that negotiations would need to be resorted to or attempted. May I reiterate that the Court’s determination of the existence of the dispute is not designed to protect the respondent State(s), but rather to safeguard the proper exercise of its own judicial function in contentious cases. It is thus a matter for objective determination by the Court, as it recalled in that same Judgment (para. 87), on the basis of its own jurisprudence constante on the matter.

2. Existence of a Dispute in the Cas d’Espèce (case Marshall Islands versus United Kingdom)

16. In the present case opposing the Marshall Islands to the United Kingdom, there were two sustained and quite distinct courses of conduct of the two contending parties, evidencing their distinct legal positions (as to the duty of negotiations leading to nuclear disarmament in all its aspects under strict and effective international control), which suffice for the determination of the existence of a dispute. The Marshall Islands drew attention to the fact that the United Kingdom has consistently opposed the commencement of multilateral negotiations on nuclear disarmament⁵², and has voted against General Assembly resolutions reaffirming the obligations recognized in the 1996 ICJ Advisory Opinion and calling for negotiations on nuclear disarmament⁵³.

17. There were thus opposing views of the contending parties as to their divergent voting records in respect of the aforementioned General Assembly resolutions⁵⁴. The primary articulation of the Marshall Islands’ claim was its declaration in the Conference of Nayarit on 14.02.2014, wherein the Marshall Islands contested the legality of the conduct of the nuclear-weapon States [NWS], (including the United Kingdom), under the NPT and customary international law. The fact that the Marshall Islands’ declaration was addressed to a plurality of States (namely “all States possessing nuclear arsenals”), and not to the United Kingdom individually, in my perception does not affect the existence of a dispute.

18. States possessing nuclear weapons are a small and easily identifiable group of States – to which the United Kingdom belongs – of the international community. The Marshall Islands’ declaration was made with sufficient clarity to enable all NWS, including the United Kingdom, to consider the existence of a dispute concerning the theme; the Marshall Islands’ declaration clearly identified the legal basis of the claim and the conduct complained of. Likewise, the fact that the United Kingdom was not present at the Conference of Nayarit of 2014 does not prejudice the opposition of legal views between the Marshall Islands and the United Kingdom.

19. There is a consistent course of distinct conducts by the two contending parties. This is followed by a claim, as to the substance of the matter at issue. This is sufficient for a dispute to crystallize; nothing more is required. The United Kingdom’s subsequent submissions before the ICJ confirm the opposition of legal views: suffice it to mention that the United Kingdom stated that the allegations brought by the Marshall Islands are “manifestly unfounded on the merits”⁵⁵: this is a clear opposition to the Marshall Islands’ claim. A dispute already existed on the date of filing of the Application in the cas d’espèce, and the subsequent arguments of the parties before the Court confirm that.

3. The Threshold for the Determination of the Existence of a Dispute

20. In the present cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus India/United Kingdom/Pakistan), the Court’s majority has unduly heightened the threshold for establishing the existence of a dispute. Even if dismissing the need for an applicant State to provide notice of a dispute, in practice, the requirement stipulated goes far beyond giving notice: the Court effectively requires an applicant State to set out its legal claim, to direct it specifically to the prospective-respondent State(s), and to make the alleged harmful conduct clear. All of this forms part of the “awareness” requirement that the Court’s majority has laid down, seemingly undermining its own ability to infer the existence of a dispute from the conflicting courses of conduct of the contending parties.

21. This is not in line with the ICJ’s previous obiter dicta on inference, contradicting it. For example, in the aforementioned case of Land and Maritime Boundary between Cameroon and Nigeria (1998), the ICJ stated that

[A] disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or attitude of a party can be established by inference, whatever the professed view of that party (para. 89).

22. The view taken by the Court’s majority in the present case contradicts the Hague Court’s (PCIJ and ICJ) own earlier case-law, in which it has taken a much less formalistic approach to the establishment of the existence of a dispute. Early in its life, the PCIJ made clear that it did not attach much importance to “matters of form”⁵⁶; it added that it could not “be hampered by a mere defect of form”⁵⁷. The PCIJ further stated that “the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. (...) [T]he Court considers that it cannot require that the dispute should have manifested itself in a formal way”⁵⁸.

23. The ICJ has, likewise, in its own case-law, avoided to take a very formalistic approach to the determination of the existence of a dispute⁵⁹. May I recall, in this respect, inter alia, as notable examples, the Court’s obiter dicta on the issue, in the cases of East Timor (Portugal versus Australia), of the Application of the Convention against Genocide (Bosnia versus Yugoslavia), and of Certain Property (Liechtenstein versus Germany). In those cases, the ICJ has considered that conduct post-dating the critical date (i.e., the date of the filing of the Application) supports a finding of the existence of a dispute between the parties. In the light of this approach taken by the ICJ itself in its earlier case-law, it is clear that a dispute exists in each of the present cases lodged with it by the Marshall Islands.

24. In the case of East Timor (1995), in response to Australia’s preliminary objection that there was no dispute between itself and Portugal, the Court stated: “Portugal has, rightly or wrongly, formulated complaints of fact and law against Australia which the latter has denied. By virtue of this denial, there is a legal dispute”⁶⁰. Shortly afterwards, in the case of the Application of the Convention against Genocide (Preliminary Objections, 1996), in response to Yugoslavia’s preliminary objection that the Court did not have jurisdiction under Article IX of the Convention against Genocide because there was no dispute between the Parties, the Court, contrariwise, found that there was a dispute between them, on the basis that Yugoslavia had “wholly denied all of Bosnia and Herzegovina’s allegations, whether at the stage of proceedings relating to the requests for the indication of provisional measures, or at the stage of the (...) proceedings relating to [...preliminary] objections”⁶¹. Accordingly, “by reason of the rejection by Yugoslavia of the complaints formulated against it”⁶², the ICJ found that there was a dispute.

25. In the case of Certain Property (Preliminary Objections, 2005), as to Germany’s preliminary objection that there was no dispute between the parties, the ICJ found that complaints of fact and law formulated by Liechtenstein were denied by Germany; accordingly, “[i]n conformity with well-established jurisprudence”, – the ICJ concluded, – “by virtue of this denial”, there was a legal dispute between Liechtenstein and Germany⁶³. Now, in the present proceedings before the Court, in each of the three cases lodged with the ICJ by the Marshall Islands (against India, the United Kingdom and Pakistan), the respondent States have expressly denied the arguments of the Marshall Islands. May we now take note of the denials which, on the basis of the Court’s aforementioned jurisprudence constante, evidence the existence of a dispute between the contending parties⁶⁴.

4. Contentions in the Case of Marshall Islands versus United Kingdom

26. The Marshall Islands argues that the United Kingdom has violated its obligations under Article VI of the NPT as well as its obligations under customary international law with regard to nuclear disarmament and the cessation of the nuclear arms race⁶⁵. Although the United Kingdom’s Preliminary Objections do not address the merits of the dispute, there is one statement by the United Kingdom that reveals a dispute between the Parties:

The silence by the Marshall Islands vis-à-vis the UK on nuclear disarmament issues comes against a backdrop of both a progressive unilateral reduction by the UK of its own nuclear arsenal, (...), and of active UK engagement in efforts, inter alia, to secure and extend nuclear-weapon-free zones around the world. The UK is a party to the Protocols to the Treaty of Tlatelolco, the Treaty of Rarotonga and the Treaty of Pelindaba, addressing, respectively, nuclear-weapon-free zones in Latin America and the Caribbean, the South Pacific, and Africa. The UK has ratified the Protocol to the Treaty on a Nuclear-Weapon-Free Zone in Central Asia and continues to engage with the States Parties to the Treaty on the Southeast Asia Nuclear-Weapon-Free Zone. The UK signed the Comprehensive Nuclear Test Ban Treaty on the first day it was opened for signature and was, alongside France, the first nuclear-weapon State to become a party to it. Beyond this, the UK is leading efforts to develop verification technologies to ensure that any future nuclear disarmament treaty will apply under strict and effective international control.

Against this background, the Marshall Islands’ Application instituting proceedings against the UK alleging a breach inter alia of Article VI of the NPT, and of asserted parallel obligations of customary international law, came entirely out of the blue. The United Kingdom considers the allegations to be manifestly unfounded on the merits.⁶⁶

5. General Assessment

27. Always attentive and over-sensitive to the position of nuclear-weapon States [NWS] (cf. part XIII, infra), – such as the respondent States in the present cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (India, United Kingdom and Pakistan), – the Court, in the cas d’espèce, dismisses the statements made by the Marshall Islands in multilateral fora before the filing of the Application, as being, in its view, insufficient to determine the existence of a dispute. Moreover, the Court’s split majority makes tabula rasa of the requirement that “in principle” the date for determining the existence of the dispute is the date of filing of the application (case of Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, Nicaragua versus Colombia, Preliminary Objections, Judgment of 17.03.2016, para. 52); as already seen, in its case-law the ICJ has taken into account conduct post-dating that critical date (cf. supra).

28. In an entirely formalistic reasoning, the Court borrows the obiter dicta it made in the case of the Application of the CERD Convention (2011), – unduly elevating the threshold for the determination of the existence of a dispute, – in respect of a compromissory clause under that Convention (wrongly interpreted anyway, making abstraction of the object and purpose of the CERD Convention). In the present case, opposing the Marshall Islands to the United Kingdom, worse still, the Court’s majority takes that higher standard out of context, and applies it herein, in a case lodged with the Court on the basis of an optional clause declaration, even though also concerning a conventional obligation (under the NPT).

29. This attempt to heighten still further the threshold for the determination of the existence of a dispute (requiring further factual precisions from the applicant) is, besides formalistic, artificial: it does not follow from the definition of a dispute in the Court’s jurisprudence constante, as being “a conflict of legal views or of interests”, as already seen (cf. supra). The Court’s majority formalistically requires a specific reaction of the respondent State to the claim made by the applicant State (in applying the criterion of “awareness”, amounting, in my perception, to an obstacle to access to justice), even in a situation where, as in the cas d’espèce, there are two consistent and distinct courses of conduct on the part of the contending parties.

30. Furthermore, and in conclusion, there is a clear denial by the respondent States (India, United Kingdom and Pakistan) of the arguments made against them by the applicant State, the Marshall Islands. By virtue of these denials there is a legal dispute between the Marshall Islands and each of the three respondent States. The formalistic raising, by the Court’s majority, of the higher threshold for the determination of the existence of a dispute, is not in conformity with the jurisprudence constante of the PCIJ and ICJ on the matter (cf. supra). Furthermore, in my perception, it unduly creates a difficulty for the very access to justice (by applicants) at international level, in a case on a matter of concern to the whole of humankind. This is most regrettable.

III. U.N. General Assembly Resolutions and Opinio Juris

31. In the course of the proceedings in the present cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, both the applicant State (the Marshall Islands) and the respondent States (India, United Kingdom and Pakistan) addressed U.N. General Assembly resolutions on the matter of nuclear disarmament (cf. part VI, infra). This is the point that I purport to consider, in sequence, in the present Dissenting Opinion, namely, in addition to the acknowledgment before the ICJ (1995) of the authority and legal value of General Assembly resolutions on nuclear weapons as breach of the U.N. Charter, the distinct series of: a) U.N. General Assembly resolutions on Nuclear Weapons (1961-1981); b) UN General Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992); c) U.N. General Assembly Resolutions Condemning Nuclear Weapons (1982-2015); d) U.N. General Assembly Resolutions Following up the ICJ’s 1996 Advisory Opinion (1996-2015).

1. U.N. General Assembly Resolutions on Nuclear Weapons (1961-1981)

32. The 1970s was the First Disarmament Decade: it was so declared by General Assembly resolution A/RES/2602 E (XXIV) of 16.12.1969, followed by two other resolutions of 1978 and 1980 on non-use of nuclear weapons and prevention of nuclear war⁶⁷. The General Assembly specifically called upon States to intensify efforts for the cessation of the nuclear arms race, nuclear disarmament and the elimination of other weapons of mass destruction. Even before that, the ground-breaking General Assembly resolution 1653 (XVI), of 24.11.1961, advanced its célèbre “Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons” (cf. part V, infra). In 1979, when the First Disarmament Decade was coming to an end, the General Assembly, – disappointed that the objectives of the first Decade had not been realized, – declared the 1980s as a Second Disarmament Decade⁶⁸. Likewise, the 1990s were subsequently declared the Third Disarmament Decade⁶⁹.

33. In this first period under review (1961-1981), the U.N. General Assembly paid continuously special attention to disarmament issues and to nuclear disarmament in particular. May I refer to General Assembly resolutions

A/RES/2934 | of 29.11.1972; | A/RES/2936 | of 29.11.1972;
A/RES/3078 | of 06.12.1973; | A/RES/3257 | of 09.12.1974;
A/RES/3466 | of 11.12.1975; | A/RES/3478 | of 11.12.1975;
A/RES/31/66 | of 10.12.1976; | A/RES/32/78 | of 12.12.1977;
A/RES/33/71 | of 14.12.1978; | A/RES/33/72 | of 14.12.1978;
A/RES/33/91 | of 16.12.1978; | A/RES/34/83 | of 11.12.1979;
A/RES/34/84 | of 11.12.1979; | A/RES/34/85 | of 11.12.1979;
A/RES/34/86 | of 11.12.1979; | A/RES/35/152 | of 12.12.1980;
A/RES/35/155 | of 12.12.1980; | A/RES/35/156 | of 12.12.1980;
A/RES/36/81 | of 09.12.1981; | A/RES/36/84 | of 09.12.1981;
A/RES/36/92 | of 09.12.1981; | A/RES/36/94 | of 09.12.1981;
A/RES/36/95 | of 09.12.1981; | A/RES/36/97 | of 09.12.1981;
and | A/RES/36/100 | of 09.12.1981. |  |  |

34. In 1978 and 1982, the U.N. General Assembly held two Special Sessions on Nuclear Disarmament (respectively, the 10th and 12th sessions), where the question of nuclear disarmament featured prominently amongst the themes discussed. In fact, it was stressed that the most immediate goal of disarmament is the elimination of the danger of a nuclear war. In a subsequent series of its resolutions (in the following period of 1982-2015), as we shall see, the General Assembly moved on straightforwardly to the condemnation of nuclear weapons (cf. infra).

35. In its resolutions adopted during the present period of 1972-1981, the General Assembly repeatedly drew attention to the dangers of the nuclear arms race for humankind and the survival of civilization and expressed apprehension concerning the harmful consequences of nuclear testing for the acceleration of such arms race. Thus, the General Assembly reiterated its condemnation of all nuclear weapon tests, in whatever environment they may be conducted. It called upon States that had not yet done so to adhere to the 1963 Test Ban Treaty (banning nuclear tests in the atmosphere, in outer space and under water) and called for the conclusion of a comprehensive test ban treaty, which would ban nuclear weapons tests in all environments (e.g. underground as well). Pending the conclusion of such treaty, it urged NWS to suspend nuclear weapon tests in all environments.

36. The General Assembly also emphasised that NWS bear a special responsibility for fulfilling the goal of achieving nuclear disarmament, and in particular those nuclear weapon States that are parties to international agreements in which they have declared their intention to achieve the cessation of the nuclear arms race. It further called specifically on the heads of State of the USSR and the United States to implement the procedures for the entry into force of the Strategic Arms Limitation agreement (so-called “SALT” agreement).

37. At the 84th plenary meeting, following the 10th Special Session on Disarmament, the General Assembly declared that the use of nuclear weapons is a “violation of the Charter of the United Nations” and “a crime against humanity”, and that the use of nuclear weapons should be prohibited, pending nuclear disarmament⁷⁰. The General Assembly further noted the aspiration of non-nuclear-weapon States [NNWS] to prevent nuclear weapons from being stationed on their territories through the establishment of nuclear-weapon-free zones, and supported their efforts to conclude an international Convention strengthening the guarantees for their security against the use or threat of use of nuclear weapons. As part of the measures to facilitate the process of nuclear disarmament and the non-proliferation of nuclear weapons, it requested the Committee on Disarmament to consider the question of the cessation and prohibition of the production of fissionable material for weapons purposes.

2. U.N. General Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992)

38. Every year in the successive period 1982-1992 (following up on the 10th and 12th Special Sessions on Nuclear Disarmament, held in 1978 and 1982, respectively), the General Assembly adopted resolutions also calling for a nuclear-weapons freeze. May I refer to General Assembly resolutions

A/RES/37/100A | of 13.12.1982; | A/RES/38/73E | of 15.12.1983;
A/RES/39/63C | of 12.12.1984; | A/RES/40/151C | of 16.12.1985;
A/RES/41/60E | of 03.12.1986; | A/RES/42/39B | of 30.11.1987;
A/RES/43/76B | of 07.12.1988; | A/RES/44/117D | of 15.12.1989;
A/RES/45/59D | of 04.12.1990; | A/RES/46/37C | of 06.12.1991;
and | A/RES/47/53E | of 09.12.1992. |  |  |

39. These resolutions on freeze of nuclear weapons note that existing arsenals of nuclear weapons are more than sufficient to destroy all life on earth. They express the conviction that lasting world peace can be based only upon the achievement of general and complete disarmament, under effective international control. In this connection, the aforementioned General Assembly resolutions note that the highest priority objectives in the field of disarmament have to be nuclear disarmament and the elimination of all weapons of mass destruction. They at last call upon NWS to agree to reach “a freeze on nuclear weapons”, which would, inter alia, provide for “a simultaneous total stoppage of any further production of fissionable material for weapons purposes”.

40. Such nuclear-weapons freeze is not seen as an end in itself but as the most effective first step towards: a) halting any further increase and qualitative improvement in the existing arsenals of nuclear weapons; and b) activating negotiations for the substantial reduction and qualitative limitation of nuclear weapons. From 1989 onwards, these resolutions also set out the structure and scope of the prospective joint declaration through which all nuclear-weapons States would agree on a nuclear-arms freeze. Such freeze would encompass: a) a comprehensive test ban; b) cessation of the manufacture of nuclear weapons; c) a ban on all further deployment of nuclear weapons; and d) cessation of the production of fissionable material for weapons purposes.

3. U.N. General Assembly Resolutions on Nuclear Weapons as Breach of the U.N. Charter (Acknowledgment before the ICJ, 1995)

41. Two decades ago, when U.N. General Assembly resolutions condemning nuclear weapons were not as numerous as they are today, they were already regarded as authoritative in the views of States from distinct continents. This was made clear, e.g., by States which participated in the advisory proceedings of 30 October to 15 November 1995 before the ICJ, conducive to its Advisory Opinion of 08.07.1996 on the Threat or Use of Nuclear Weapons. On the occasion, the view was upheld that those General Assembly resolutions expressed a “general consensus” and had a relevant “legal value”⁷¹. Resolution 1653 (XVI), of 1961, e.g., was invoked as a “law-making” resolution of the General Assembly, in stating that the use of nuclear weapons is contrary to the letter and spirit, and aims, of the United Nations, and, as such, a “direct violation” of the U.N. Charter⁷².

42. It was further stated that, already towards the end of 1995, “numerous” General Assembly resolutions and declarations confirmed the illegality of the use of force, including nuclear weapons⁷³. Some General Assembly resolutions (1653 (XVI), of 24.11.1961; 33/71B of 14.12.1978; 34/83G of 11.12.1979; 35/152D of 12.12.1980; 36/92I of 09.12.1981; 45/59B of 04.12.1990; 46/37D of 06.12.1991) were singled out for having significantly declared that the use of nuclear weapons would be a violation of the U.N. Charter itself⁷⁴. The view was expressed that the series of General Assembly resolutions (starting with resolution 1653 (XVI), of 24.11.1961) amounted to “an authoritative interpretation” of humanitarian law treaties as well as the U.N. Charter⁷⁵.

43. In the advisory proceedings of 1995 before the ICJ, it was further recalled that General Assembly resolution 1653 (XVI) of 1961 was adopted in the form of a declaration, being thus “an assertion of the law”, and, ever since, the General Assembly’s authority to adopt such declaratory resolutions (in condemnation of nuclear weapons) was generally accepted; such resolutions declaring the use of nuclear weapons “unlawful” were regarded as ensuing from the exercise of an “inherent” power of the General Assembly⁷⁶. The relevance of General Assembly resolutions has been reckoned by large groups of States⁷⁷.

44. Ever since the aforementioned acknowledgment of the authority and legal value of General Assembly resolutions in the course of the pleadings of late 1995 before the ICJ, those resolutions continue to grow in number until today, clearly forming, in my perception, an opinio juris communis as to nuclear disarmament. In addition to those aforementioned, may I also review, in sequence, two other series of General Assembly resolutions, extending to the present, namely: the longstanding series of General Assembly resolutions condemning nuclear weapons (1982-2015), and the series of General Assembly resolutions following up the ICJ’s 1996 Advisory Opinion (1997-2015).

4. U.N. General Assembly Resolutions Condemning Nuclear Weapons (1982-2015)

45. In the period 1982-2015, there is a long series of U.N. General Assembly resolutions condemning nuclear weapons. May I refer to General Assembly resolutions

A/RES/37/100C | of 09.12.1982; | A/RES/38/73G | of 15.12.1983;
A/RES/39/63H | of 12.12.1984; | A/RES/40/151F | of 16.12.1985;
A/RES/41/60F | of 03.12.1986; | A/RES/42/39C | of 30.11.1987;
A/RES/43/76E | of 07.12.1988; | A/RES/44/117C | of 15.12.1989;
A/RES/45/59B | of 04.12.1990; | A/RES/46/37D | of 06.12.1991;
A/RES/47/53C | of 09.12.1992; | A/RES/48/76B | of 16.12.1993;
A/RES/49/76E | of 15.12.1994; | A/RES/50/71E | of 12.12.1995;
A/RES/51/46D | of 10.12.1996; | A/RES/52/39C | of 09.12.1997;
A/RES/53/78D | of 04.12.1998; | A/RES/54/55D | of 01.12.1999;
A/RES/55/34G | of 20.11.2000; | A/RES/56/25B | of 29.11.2001;
A/RES/57/94 | of 22.11.2002; | A/RES/58/64 | of 08.12.2003;
A/RES/59/102 | of 03.12.2004; | A/RES/60/88 | of 08.12.2005;
A/RES/61/97 | of 06.12.2006; | A/RES/62/51 | of 05.12.2007;
A/RES/63/75 | of 02.02.2008; | A/RES/64/59 | of 02.12.2009;
A/RES/65/80 | of 08.12.2010; | A/RES/66/57 | of 02.12.2011;
A/RES/67/64 | of 03.12.2012; | A/RES/68/58 | of 05.12.2013;
A/RES/69/69 | of 02.12.2014; | and A/RES/70/62 | of 07.12.2015.

46. In those resolutions, the General Assembly warned against the threat by nuclear weapons to the survival of humankind. They were preceded by two ground-breaking historical resolutions, namely, General Assembly resolution 1(I) of 24.01.1946, and General Assembly resolution 1653 (XVI), of 24.11.1961 (cf. infra). In this new and long series of resolutions condemning nuclear weapons (1982-2015), at the opening of their preambular paragraphs the General Assembly states, year after year, that it is

Alarmed by the threat to the survival of mankind and to the life-sustaining system posed by nuclear weapons and by their use, inherent in the concepts of deterrence,

Convinced that nuclear disarmament is essential for the prevention of nuclear war and for the strengthening of international peace and security,

Further convinced that a prohibition of the use or threat of use of nuclear weapons would be a step towards the complete elimination of nuclear weapons leading to general and complete disarmament under strict and effective international control.

47. Those General Assembly resolutions next significantly reaffirm, in their preambular paragraphs, year after year, that

the use of nuclear weapons would be a violation of the Charter of the United Nations and a crime against humanity, as declared in its resolutions 1653 (XVI) of 24.11.1961, 33/71B of 14.12.1978, 34/83G of 11.12.1979, 35/152D of 12.12.1980 and 36/92I of 09.12.1981.

48. Still in their preambular paragraphs, those General Assembly resolutions further note with regret the inability of the Conference on Disarmament to undertake negotiations with a view to achieving agreement on a nuclear disarmament Convention during each previous year. In their operative part, those resolutions reiterate, year after year, the request that the Committee on Disarmament undertakes, on a priority basis, negotiations aiming at achieving agreement on an international Convention prohibiting the use or threat of use of nuclear weapons under any circumstances, taking as a basis the text of the draft Convention on the Prohibition of the Use of Nuclear Weapons.

49. From 1989 (44th session) onwards, those resolutions begin to note specifically that a multilateral agreement prohibiting the use or threat of use of nuclear weapons should strengthen international security and help to create the climate for negotiations leading to the complete elimination of nuclear weapons. Subsequently, those resolutions come to stress, in particular, that an international Convention would be a step towards the complete elimination of nuclear weapons, leading to general and complete disarmament, under strict and effective international control.

50. Clauses of the kind then evolve, from 1996 onwards⁷⁸, to refer expressly to a time framework, i.e., that an international Convention would be an important step in a phased programme towards the complete elimination of nuclear weapons, within a specific framework of time. More recent resolutions also expressly refer to the determination to achieve an international Convention prohibiting the development, production, stockpiling and use of nuclear weapons, leading to their ultimate destruction.

5. U.N. General Assembly Resolutions Following up the ICJ’s 1996 Advisory Opinion (1996-2015)

51. Ever since the delivery, on 08.07.1996, of the ICJ’s Advisory Opinion on Nuclear Weapons to date, the General Assembly has been adopting a series of resolutions (1996-2015), as its follow up. May I refer to General Assembly resolutions

A/RES/51/45 | of 10.12.1996; | A/RES/52/38 | of 09.12.1997;
A/RES/53/77 | of 04.12.1998; | A/RES/54/54 | of 01.12.1999;
A/RES/55/33 | of 20.11.2000; | A/RES/56/24 | of 29.11.2001;
A/RES/57/85 | of 22.11.2002; | A/RES/58/46 | of 08.12.2003;
A/RES/59/83 | of 03.12.2004; | A/RES/60/76 | of 08.12.2005;
A/RES/61/83 | of 06.12.2006; | A/RES/62/39 | of 05.12.2007;
A/RES/63/49 | of 02.12.2008; | A/RES/64/55 | of 02.12.2009;
A/RES/65/76 | of 08.12.2010; | A/RES/66/46 | of 02.12.2011;
A/RES/67/33 | of 03.12.2012; | A/RES/68/42 | of 05.12.2013;
A/RES/69/43 | of 02.12.2014; | and A/RES/70/56 | of 07.12.2015.

52. The series of aforementioned General Assembly resolutions on follow-up to the 1996 Advisory Opinion of the ICJ (1996-2015) begins by expressing the General Assembly’s belief that “the continuing existence of nuclear weapons poses a threat to humanity” and that “their use would have catastrophic consequences for all life on earth”, and, further, that “the only defence against a nuclear catastrophe is the total elimination of nuclear weapons and the certainty that they will never be produced again” (2nd preambular paragraph). The General Assembly resolutions reiteratedly reaffirm “the commitment of the international community to the realization of the goal of a nuclear-weapon-free world through the total elimination of nuclear weapons” (3rd preambular paragraph). They recall their request to the Conference on Disarmament to establish an ad hoc Committee to commence negotiations on a phased programme of nuclear disarmament, aiming at the elimination of nuclear weapons, within a “time bound framework”; they further reaffirm the role of the Conference on Disarmament as the single multilateral disarmament negotiating forum.

53. The General Assembly then recalls, again and again, that “the solemn obligations of States Parties, undertaken in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), particularly 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” (4th preambular paragraph). They express the goal of achieving a legally binding prohibition on the development, production, testing, deployment, stockpiling, threat or use of nuclear weapons, and their destruction under “effective international control”. They significantly call upon all States to fulfil promptly the obligation leading to an early conclusion of a Convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination⁷⁹.

54. Those resolutions (from 2003 onwards) express deep concern at the lack of progress made in the implementation of the “thirteen steps” agreed to, at the 2000 Review Conference, for the implementation of Article VI of the NPT. The aforementioned series of General Assembly resolutions include, from 2010 onwards, an additional (6th) preambular paragraph, expressing “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons”, and reaffirming, in this context, “the need for all States at all times to comply with applicable international law, including international humanitarian law”. Those follow-up General Assembly resolutions further recognize “with satisfaction that the Antarctic Treaty, the Treaties of Tlatelolco, Rarotonga, Bangkok and Pelindaba, and the Treaty on a Nuclear-Weapon-Free Zone in Central Asia, as well as Mongolia’s nuclear-weapon-free status, are gradually freeing the entire southern hemisphere and adjacent areas covered by those treaties from nuclear weapons” (10th preambular paragraph).

55. More recent resolutions (from 2013 onwards) are significantly further expanded. They call upon all NWS to undertake concrete disarmament efforts, stressing that all States need to make special efforts to achieve and maintain a world without nuclear weapons. They also take note of the “Five-Point Proposal on Nuclear Disarmament” made by the U.N. Secretary-General (cf. part XVII, infra), and recognize the need for a multilaterally negotiated and legally binding instrument to assure that NNWS stand against the threat or use of nuclear weapons, pending the total elimination of nuclear weapons. In their operative part, the same series of General Assembly resolutions underline the ICJ’s unanimous conclusion, in its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, 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” (para. 1).

56. Looking at this particular series of General Assembly follow-up resolutions as a whole, it should not pass unnoticed that they contain paragraphs referring to the obligation to pursue and conclude, in good faith, negotiations leading to nuclear disarmament, without any reference to the NPT or to States Parties to it. They rather refer to that obligation as a general one, not grounded on any treaty provision. All States, and not only States Parties to the NPT, are called upon to fulfil promptly that obligation, incumbent upon all States, to report (to the Secretary-General) on their compliance with the resolutions at issue. There are, notably, other paragraphs in those resolutions that are specifically directed at nuclear-weapon States, or make specific references to the NPT. In sum, references to all States are deliberate, and in the absence of any references to a treaty or other specifically-imposed international obligation, this thus points towards a customary law obligation to negotiate and achieve nuclear disarmament.

IV. U.N. Security Council Resolutions and Opinio Juris

57. Like the U.N. General Assembly, the U.N. Security Council has also often dwelt upon the matter at issue. May I refer, inter alia, to Security Council resolutions S/23500, of 31.01.1992; S/RES/984, of 11.04.1995; S/RES/1540, of 28.04.2004; S/RES/1673, of 27.04.2006; S/RES/1810, of 25.04.2008; S/RES/1887, of 24.09.2009; and S/RES/1997, of 20.04.2011, — to which others can be added⁸⁰. May I at first recall that, at a Security Council’s meeting at the level of Heads of State and Government, held on 31.01.1992, the President of the U.N. Security Council made a statement on behalf of the members of the Security Council that called upon all member States to fulfil their obligations on matters of arms control and disarmament, and to prevent the proliferation of all weapons of mass destruction⁸¹ (encompassing nuclear, chemical, and biological weapons).

58. The statement expressed the feeling prevailing at the time that the end of the Cold War “has raised hopes for a safer, more equitable and more humane world”, giving now to the world “the best chance of achieving international peace and security since the foundation of the United Nations”⁸². The members of the Security Council then warned against the threat to international peace and security of all weapons of mass destruction, and expressed their commitment to take appropriate action to prevent “the spread of technology related to the research for or production of such weapons”⁸³. They further stressed the importance of “the integral role in the implementation” of the NPT of “fully effective IAEA safeguards”, and of “effective export controls”; they added that they would take “appropriate measures in the case of any violations notified to them by the IAEA”⁸⁴.

59. The proliferation of all weapons of mass destruction is defined in the aforementioned Security Council statement, notably, as a threat to international peace and security, — a point which was to be referred to, in subsequent resolutions of the Security Council, to justify its action under Chapter VII of the U.N. Charter. In three of its subsequent resolutions, in a preambular paragraph (resolutions 1540, of 28.04.2004, para. 2; 1810, of 25.04.2008, para. 3; and 1887, of 24.09.2009, para. 2), the Security Council reaffirms the statement of its President (adopted on 31.01.1992), and, also in other resolutions, further asserts (also in preambular paragraphs) that the proliferation of nuclear, chemical and biological weapons is a threat to international peace and security⁸⁵ and that all States need to take measures to prevent such proliferation.

60. In resolution 1540/2004 of 28.04.2004, adopted by the Security Council acting under chapter VII of the U.N. Charter, it sets forth legally binding obligations on all U.N. member States to set up and enforce appropriate and effective measures against the proliferation of nuclear, chemical, and biological weapons, – including the adoption of controls and a reporting procedure for U.N. member States to a Committee of the Security Council (sometimes referred to as the “1540 Committee”). Subsequent Security Council resolutions reaffirm resolution 1540/2004 and call upon U.N. member States to implement it.

61. The U.N. Security Council refers, in particular, in two of its resolutions (984/1995, of 11.04.1995; and 1887/2009 of 24.09.2009), to the obligation to pursue negotiations in good faith in relation to nuclear disarmament. In its preamble, Security Council resolution 984/1995 affirms the need for all States Parties to the NPT “to comply fully with all their obligations”; in its operative part, it further “[u]rges 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” (para. 8). It should not pass unnoticed that Security Council resolution 984/1995 pre-dates the ICJ’s 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons.

62. And Security Council resolution 1887/2009 of 24.09.2009, in its operative part, again calls upon States Parties to the NPT “to comply fully with all their obligations and fulfil their commitments under the Treaty” (para. 2), and, in particular, “pursuant to Article VI of the Treaty, to undertake to pursue negotiations in good faith on effective measures relating to nuclear arms reduction and disarmament”; furthermore, it calls upon “all other States to join in this endeavour” (para. 5). It should not pass unnoticed that it is a general call, upon all U.N. member States, whether or not Parties to the NPT.

63. In my perception, the aforementioned resolutions of the Security Council, like those of the General Assembly (cf. supra), addressing all U.N. member States, provide significant elements of the emergence of an opinio juris, in support of the gradual formation of an obligation of customary international law, corresponding to the conventional obligation under Article VI of the NPT. In particular, the fact that the Security Council calls upon all States, and not only States Parties to the NPT, to pursue negotiations towards nuclear disarmament in good faith (or to join the NPT State Parties in this endeavour) is significant. It is an indication that the obligation is incumbent on all U.N. member States, irrespectively of their being or not Parties to the NPT.

V. The Saga of the United Nations in the Condemnation of Nuclear Weapons

64. The U.N. resolutions (of the General Assembly and the Security Council) that I have just reviewed (supra) portray the United Nations’ longstanding saga in the condemnation of nuclear weapons. This saga goes back to the birth and earlier years of the United Nations. In fact, nuclear weapons were not in the minds of the Delegates to the San Francisco Conference of June 1945, at the time when the United Nations Charter was adopted on 26.06.1945. The U.S. dropping of atomic bombs over Hiroshima and Nagasaki, heralding the nuclear age, occurred on 06 and 09 August 1945, respectively, over ten weeks before the U.N. Charter’s entry into force, on 24.10.1945.

65. As soon as the United Nations Organization came into being, it promptly sought to equip itself to face the new challenges of the nuclear age: the General Assembly’s very first resolution, – resolution 1(I) of 24.01.1946, – thus, established a Commission to deal with the matter, entrusted with submitting reports to the Security Council “in the interest of peace and security” (para. 2(a)), as well as with making proposals for “control of atomic energy to the extent necessary to ensure its use only for peaceful purposes”, and for “the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction” (para. 5(b)(c)).

66. One decade later, in 1956, the International Atomic Energy Agency (IAEA) was established. And half a decade later, in 1961, the General Assembly adopted a ground-breaking resolution: it would be proper here to recall the precise terms of the historical General Assembly resolution 1653 (XVI), of 24.11.1961, titled “Declaration on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons”. That célèbre resolution 1653 (1961) remains contemporary today, and, 55 years later, continues to require close attention; in it, the General Assembly

Mindful of its responsibility under the Charter of the United Nations in the maintenance of international peace and security, as well as in the consideration of principles governing disarmament,

Gravely concerned that, while negotiations on disarmament have not so far achieved satisfactory results, the armaments race, particularly in the nuclear and thermo-nuclear fields, has reached a dangerous stage requiring all possible precautionary measures to protect humanity and civilization from the hazard of nuclear and thermo-nuclear catastrophe,

Recalling that the use of weapons of mass destruction, causing unnecessary human suffering, was in the past prohibited, as being contrary to the laws of humanity and to the principles of international law, by international declarations and binding agreements, such as the Declaration of St. Petersburg of 1868, the Declaration of the Brussels Conference of 1874, the Conventions of The Hague Peace Conferences of 1899 and 1907, and the Geneva Protocol of 1925, to which the majority of nations are still parties,

Considering that the use of nuclear and thermo-nuclear weapons would bring about indiscriminate suffering and destruction to mankind and civilization to an even greater extent than the use of those weapons declared by the aforementioned international declarations and agreements to be contrary to the laws of humanity and a crime under international law,

Believing that the use of weapons of mass destruction, such as nuclear and thermo-nuclear weapons, is a direct negation of the high ideals and objectives which the United Nations has been established to achieve through the protection of succeeding generations from the scourge of war and through the preservation and promotion of their cultures,

1. Declares that:

a. The use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations;

b. The use of nuclear and thermo-nuclear weapons would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity;

c. The use of nuclear and thermo-nuclear weapons is a war directed not against an enemy or enemies alone but also against mankind in general, since the peoples of the world not involved in such a war will be subjected to all the evils generated by the use of such weapons;

d. Any State using nuclear and thermo-nuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as committing a crime against mankind and civilization;

2. Requests the Secretary-General to consult the Governments of Member States to ascertain their views on the possibility of convening a Special Conference for signing a Convention on the prohibition of the use of nuclear and thermo-nuclear weapons for war purposes and to report on the results of such consultation to the General Assembly at its XVIIth session.

67. Over half a century later, the lucid and poignant declaration contained in General Assembly resolution 1653 (1961) appears endowed with permanent topicality, as the whole international community remains still awaiting for the conclusion of the propounded general Convention on the prohibition of nuclear and thermo-nuclear weapons: nuclear disarmament remains still a goal to be achieved by the United Nations today, as it was in 1961. The Comprehensive Nuclear-Test-Ban Treaty (CTBT), adopted on 24.09.1996, has not yet entered into force, although 164 States have ratified it to date.

68. It is beyond the scope of the present Dissenting Opinion to dwell upon the reasons why, already for two decades, one remains awaiting for the CTBT’s entry into force⁸⁶. Suffice it here to recall that the CTBT provides (Article XIV) that for it to enter into force, the 44 States specified in its Annex 2 need to ratify it⁸⁷; a number of these States have not yet ratified the CTBT, including some NWS, like India and Pakistan. NWS have invoked distinct reasons for their positions conditioning nuclear disarmament (cf. infra). The entry into force of the CTBT has thus been delayed.

69. Recently, in a panel in Vienna (on 27.04.2016) in commemoration of the 20th anniversary of the CTBT, the U.N. Secretary-General (Ban Ki-moon) pondered that there have been advances in the matter, but there remains a long way to go, in the determination “to bring into force a legally binding prohibition against all nuclear tests”. He recalled to have

repeatedly pointed to the toxic legacy that some 2,000 tests left on people and the environment in parts of Central Asia, North Africa, North America and the South Pacific. Nuclear testing poisons water, causes cancers, and pollutes the area with radioactive fall-out for generations and generations to come. We are here to honour the victims. The best tribute to them is action to ban and to stop nuclear testing. Their sufferings should teach the world to end this madness⁸⁸.

He then called on the (eight) remaining CTBT Annex 2 States “to sign and ratify the Treaty without further delay”, so as to strengthen its goal of universality; in this way, – he concluded, – “we can leave a safer world, free of nuclear tests, to our children and to succeeding generations of this world”⁸⁹.

70. To this one may add the unaccomplished endeavours of the U.N. General Assembly Special Sessions on Disarmament. Of the three Special Sessions held so far (in 1978, 10th Special Session; in 1982, 12th Special Session; and in 1988, 15th Special Session)⁹⁰, the first one appears to have been the most significant one so far. The Final Document adopted unanimously (without a vote) by the 1st Special Session on Disarmament sets up a programme of action on disarmament and the corresponding mechanism in its current form. In the present case before the ICJ, the Marshall Islands refers to this document in its Memorial, singling out its relevance for the interpretation of Article VI of the NPT and the corresponding customary international law obligation of nuclear disarmament (paras. 129-132).

71. That Final Document of the first General Assembly Special Session on Disarmament (1978) addresses nuclear disarmament in its distinct aspects. In this respect, the General Assembly begins by observing that the accumulation of nuclear weapons constitutes a threat to the future of humankind (para. 1), in effect “the greatest danger” to humankind and to “the survival of civilization” (para. 47). It adds that the arms race, particularly in its nuclear aspect, is incompatible with the principles enshrined in the United Nations Charter (para. 12). In its view, the most effective guarantee against the dangers of nuclear war is the complete elimination of nuclear weapons (paras. 8 and 56)⁹¹.

72. While disarmament is the responsibility of all States, the General Assembly asserts that NWS have the primary responsibility for nuclear disarmament. There is pressing need of “urgent negotiations of agreements” to that end, and in particular to conclude “a treaty prohibiting nuclear-weapon tests” (paras. 50-51). It further stresses the importance of nuclear-weapon-free zones that have been established or are the subject of negotiations in various parts of the globe (paras. 60-64).

73. The Conference on Disarmament, – since 1979 the sole multilateral disarmament-negotiating forum of the international community, – has helped to negotiate multilateral arms-limitation and disarmament agreements⁹². It has focused its work on four main issues, namely: nuclear disarmament, prohibition of the production of fissile material for weapon use, prevention of arms race in outer space, and negative security assurances. Yet, since the adoption of the CTBT in 1996, the Conference on Disarmament has been largely deadlocked, in face of the invocation of divergent security interests, added to the understanding that nuclear weapons require mutuality; furthermore, the Rules of Procedure of the Conference provide that all decisions must be adopted by consensus. In sum, some States blame political factors for causing its long-standing stalemate, while others attribute it to outdated procedural rules.

74. After all, in historical perspective, some advances have been attained in the last decades in respect of other weapons of mass destruction, as illustrated by the adoption of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (on 10.04.1972), as well as the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (on 13.01.1993); distinctly from the CTBT (supra), these two Conventions have already entered into force (on 26.03.1975, and on 29.04.1997, respectively).

75. If we look at conventional international law only, weapons of mass destruction (poisonous gases, biological and chemical weapons) have been outlawed; yet, nuclear weapons, far more destructive, have not been banned yet. This juridical absurdity nourishes the positivist myopia, or blindness, in inferring therefrom that there is no customary international obligation of nuclear disarmament. Positivists only have eyes for treaty law, for individual State consent, revolving in vicious circles, unable to see the pressing needs and aspirations of the international community as a whole, and to grasp the universality of contemporary international law – as envisaged by its “founding fathers”, already in the XVIth-XVIIth centuries, – with its underlying fundamental principles (cf. infra).

76. The truth is that, in our times, the obligation of nuclear disarmament has emerged and crystallized, in both conventional and customary international law, and the United Nations has been giving a most valuable contribution to this along the decades. The matter at issue, the United Nations saga in this domain, was brought to the attention of the ICJ, two decades ago, in the advisory proceedings that led to its Advisory Opinion of 1996 on the Threat or Use of Nuclear Weapons, and now again, two decades later, in the present contentious proceedings in the cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, opposing the Marshall Islands to India, Pakistan and the United Kingdom, respectively.

77. The aforementioned U.N. resolutions were in effect object of attention on the part of the contending parties before the Court (Marshall Islands, India, Pakistan and the United Kingdom). In the oral phase of their arguments, they were dealt with by the participating States (Marshall Islands, India and the United Kingdom), and, extensively so, in particular, by the Marshall Islands and India. The key point is the relation of those resolutions with the emergence of opinio juris, of relevance to the identification of a customary international law obligation in the present domain. May I turn, first, to the positions sustained by the contending parties, and then, to the questions I put to them in the public sitting of 16.03.2016 before the ICJ in the cas d’espèce, and the responses received from them.

VI. U.N. Resolutions and the Emergence of Opinio Juris: The Positions of the Contending Parties

78. In their written submissions and oral arguments before the Court in the present case(s) of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, the Marshall Islands addresses General Assembly resolutions on nuclear disarmament, in relation to the development of customary international law⁹³; it also refers to Security Council resolutions⁹⁴. Quoting the ICJ’s Advisory Opinion of 1996, it contends (perhaps not as clearly as it could have done) that although General Assembly resolutions lack binding force, they may “sometimes have normative value”, and thus contribute to the emergence of an opinio juris⁹⁵.

79. In its written submissions and oral arguments before the Court, India addresses U.N. General Assembly resolutions on follow-up to the ICJ’s Advisory Opinion of 1996, pointing out that it is the only nuclear weapon State that has co-sponsored and voted in favour of such resolutions⁹⁶. India supports nuclear disarmament “in a time-bound, universal, non-discriminatory, phased and verifiable manner”⁹⁷. And it criticizes the M.I. for not supporting the General Assembly follow-up resolutions in its own voting pattern (having voted against one of them, in favour once, and all other times abstained)⁹⁸.

80. In its Preliminary Objections (of 15.06.2015), the United Kingdom, after recalling the Marshall Islands’ position on earlier U.N. General Assembly resolutions, in the sixties and seventies (paras. 21 and 98(c) and (h)), then refers to its own position thereon (paras. 84 and 99(c)). It also refers to U.N. Security Council resolutions (para. 92). It then recalls the Marshall Islands’ arguments – e.g., that “the U.K. has always voted against” General Assembly resolutions on the follow-up of the ICJ Advisory Opinion of 1996, and of the U.N. High Level Meetings in 2013 and 2014 (paras. 98(e) and (h)), – in order to rebut them (paras. 99-103).

81. As for Pakistan, though it informed the Court of its decision not to participate in the oral phase of the present proceedings (letter of 02.03.2016), in the submissions in its Counter-Memorial it argues that the ICJ 1996 Advisory Opinion nowhere stated that the obligation under Article VI of the NPT was a general obligation or that it was opposable erga omnes; in its view, there was no prima facie evidence to this effect erga omnes⁹⁹. As to the U.N. General Assembly resolutions following up the ICJ’s 1996 Advisory Opinion, Pakistan notes that it has voted in favour of these resolutions from 1997 to 2015, and by contrast, – it adds, – the Marshall Islands abstained from voting in 2002 and 2003 and again from 2005 to 2012¹⁰⁰.

82. After recalling that it is not a Party to the NPT¹⁰¹, Pakistan further argues that General Assembly resolutions do not have binding force and cannot thus, in its view, give rise to obligations enforceable against a State¹⁰². Pakistan concludes that the General Assembly resolutions do not support the proposition that there exists a customary international law obligation “rooted” in Article VI of the NPT. Rather, it is the NPT that underpins the Marshall Islands’ claims¹⁰³.

83. In sum, the United Kingdom has voted against such resolutions, the Marshall Islands has abstained in most of them, India and Pakistan have voted in favour of them. Despite these distinct patterns of voting, in my view the U.N. General Assembly resolutions reviewed in the present Dissenting Opinion, taken altogether, are not at all deprived of their contribution to the conformation of opinio juris as to the formation of a customary international law obligation of nuclear denuclearization. After all, they are resolutions of the U.N. General Assembly itself (and not only of the large majority of U.N. member States which voted in their favour); they are resolutions of the United Nations Organization itself, addressing a matter of common concern of humankind as a whole (cf. part XX, infra).

VII. Questions from the Bench and Responses from the Parties

84. At the end of the public sittings before the Court in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus United Kingdom), I deemed it fit to put the following questions (on 16.03.2016, in the afternoon) to the contending parties:

I have questions to put to both contending parties, the Marshall Islands and the United Kingdom. My questions are the following:

The Marshall Islands, in the course of the written submissions and oral arguments, and the United Kingdom, in its document on Preliminary Objections (of 15 June 2015), have both referred to U.N. General Assembly resolutions on nuclear disarmament. Parallel to the resolutions on the matter which go back to the early 70s (First Disarmament Decade), there have been two more recent series of General Assembly resolutions, namely: those condemning nuclear weapons, extending from 1982 to date, and those adopted as a follow-up to the 1996 ICJ Advisory Opinion on Nuclear Weapons, extending so far from 1997 to 2015. In relation to this last series of General Assembly resolutions, — referred to by the contending parties, — I would like to ask both the Marshall Islands and the United Kingdom whether, in their understanding, such General Assembly resolutions are constitutive of an expression of opinio juris, and, if so, what in their view is their relevance to the formation of a customary international law obligation to pursue negotiations leading to nuclear disarmament, and what is their incidence upon the question of the existence of a dispute between the parties¹⁰⁴.

85. One week later (on 23.03.2016), the United Kingdom and the Marshall Islands submitted to the ICJ their written replies to my questions. In its response to them, the United Kingdom stated that resolutions adopted by international organizations may, in some circumstances, be evidence of customary international law or contribute to its development; however, they do not constitute an expression of customary international law in and of themselves. In the cas d’espèce, the United Kingdom deems it unnecessary to assess whether the General Assembly resolutions following up on the ICJ’s 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons constitute evidence of custom, as the obligation set forth in Article VI of the NPT is binding upon the United Kingdom anyway, irrespective of whether there is a corresponding obligation in customary international law¹⁰⁵.

86. The Marshall Islands, for its part, recalls the ICJ’s 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, as well as a number of General Assembly resolutions upholding the obligation to pursue negotiations leading to nuclear disarmament, in support of its position as to the existence of a customary international law obligation to this end. It also refers to the ICJ’s obiter dictum in the case of Nicaragua versus United States, to the effect that “opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions”¹⁰⁶.

87. In the perception of the Marshall Islands, the attitude of States towards General Assembly resolutions adopted in the period 1982-1995 indicates an emerging opinio juris on the obligation to conduct negotiations in good faith leading to general and complete nuclear disarmament. The Marshall Islands then states that the attitude of States to resolutions following up the 1996 ICJ’s Advisory Opinion, – those affirming the existence of an obligation to pursue negotiations leading to nuclear disarmament, – constitutes an expression of opinio juris, in support of a customary international obligation to this end¹⁰⁷.

88. As to the incidence of General Assembly resolutions on the existence of a dispute in the cas d’espèce, the Marshall Islands contends that opposing attitudes of States to such resolutions may contribute to demonstrating the existence of a dispute¹⁰⁸. As to the present case opposing the Marshall Islands to the United Kingdom, the Marshall Islands contends that the diverging voting records of the Marshall Islands and the United Kingdom are a clear indication of the opposing views of the parties concerning the obligations enshrined in Article VI of the NPT (and the corresponding obligation of customary international law)¹⁰⁹.

VIII. Human Wickedness: From the XXIst Century Back to the Book of Genesis

89. Since the beginning of the nuclear age in August 1945, some of the great thinkers of the XXth century started inquiring whether humankind has a future. Indeed, this is a question which cannot be eluded. Thus, already in 1946, for example, deeply shocked by the U.S. atomic bombings of Hiroshima and Nagasaki (on 06 and 09 August 1945, respectively)¹¹⁰, Mahatma Gandhi, in promptly expressing his worry about the future of human society, wrote, in the Journal Harijan, on 07.07.1946, that

So far as I can see, the atomic bomb has deadened the finest feeling that has sustained mankind for ages. There used to be the so-called laws of war which made it tolerable. Now we know the naked truth. War knows no law except that of might¹¹¹.

90. And M. Gandhi, denouncing its brutality, added that the “atom bomb is the weapon of ultimate force and destruction”, evidencing the “futility” of such violence; the development of the atom bomb “represents the most sinful and diabolical use of science”¹¹². In the same Journal Harijan, M. Gandhi further wrote, on 29.09.1946, that non-violence is “the only thing the atom bomb cannot destroy”; and he further warned that “unless now the world adopts non-violence, it will spell certain suicide for mankind”¹¹³.

91. Over a decade later, in the late fifties, Karl Jaspers, in his book La bombe atomique et l’avenir de l’homme (1958), regretted that the existence of nuclear weapons seemed to have been taken for granted, despite their capacity to destroy humankind and all life on the surface of earth¹¹⁴. One has thus to admit, – he added,  – that “cette terre, qui est née d’une explosion de l’atome, soit anéantie aussi par les bombes atomiques”¹¹⁵. K. Jaspers further regretted that progress had occurred in technological knowledge, but there had been “no progress of ethics nor of reason”. Human nature has not changed: “ou l’homme se transforme ou il disparaît”¹¹⁶.

92. In the early sixties, for his part, Bertrand Russell, in his book Has Man a Future? (1961), likewise regretted that people seemed to have got used to the existence of nuclear weapons, in a world dominated by a “will towards death”, prevailing over sanity¹¹⁷. Unfortunately, – he proceeded, – “love for power” has enticed States “to pursue irrational policies”; and he added:

Those who regard Genesis as authentic history, may take Cain as the first example: he may well have thought that, with Abel out of the way, he could rule over coming generations¹¹⁸.

To B. Russell, it is “in the hearts of men that the evil lies”, it is in their minds that “the cure must be sought”¹¹⁹. He further regretted the discouraging results of disarmament Conferences, and even wrote that ICJ pronouncements on the issue should be authoritative, and it was not “optional” for States “to respect or not international law”¹²⁰.

93. For his part, Karl Popper, at the end of his life, in his book (in the form of an interview) The Lesson of This Century (1997), in assembling his recollections of the XXth century, expressed the anguish, for example, at the time of the 1962 Cuban missiles crisis, with the finding that each of the 38 warheads at issue had three thousand times more power than the atomic bomb dropped over Hiroshima¹²¹. Once again, the constatation: human nature has not changed. K. Popper, like other great thinkers of the XXth century, regretted that no lessons seemed to have been learned from the past; this increased the concern they shared, in successive decades, with the future of humankind, in the presence of arsenals of nuclear weapons.

94. A contemporary writer, Max Gallo, in his recent novel Caïn et Abel – Le premier crime, has written that the presence of evil is within everyone; “le Mal est au coeur du Bien, et cette réalité ambiguë est le propre des affaires humaines”¹²². Writers of the past, – he went on, – “eux aussi – toi Dante, toi Dostoïevski, et ceux qui vous ont inspiré, Eschyle, Sophocle – attisent le brasier du châtiment et de la culpabilité”¹²³. And he added:

Partout, Caïn poignarde ou étrangle Abel. (...) Et personne ne semble voir (...) la mort prochaine de toute humanité. Elle tient entre ses mains l’arme de sa destruction. Ce ne sont plus seulement des villes entières qui seront incendiées, rasées: toute vie sera alors consumée, et la terre vitrifiée.

Deux villes ont déjà connu ce sort, et l’ombre des corps de leurs habitants est à jamais encrustée dans la pierre sous l’effet d’une chaleur de lave solaire.

(...) [P]artout Caïn poursuivra Abel. (...) Les villes vulnérables seront ensanglantées. Les tours les plus hautes seront détruites, leurs habitants ensevelis sous les décombres¹²⁴.

95. As well captured by those and other thinkers, in the Book of Genesis, the episode of the brothers Cain and Abel portraying the first murder ever, came to be seen, along the centuries, as disclosing the presence of evil and guilt in the world everyone lives. This called for care, prudence and reflection, as it became possible to realize that human beings were gradually distancing themselves from their Creator. The fragility of civilizations soon became visible. That distancing became manifest in the subsequent episode of the Tower of Babel (Genesis, ch. 11: 9). As they were built, civilizations could be destroyed. History was to provide many examples of that (as singled out, in the XXth century, by Arnold Toynbee). Along the centuries, with the growth of scientific-technological knowledge, the human capacity of self-destruction increased considerably, having become limitless in the present nuclear age.

96. Turning back to the aforementioned book by B. Russell, also in its French edition (L’homme survivra-t-il?, 1963), he further warned therein that

il faut que nous nous rendions compte que la haine, la perte de temps, d’argent et d’habilité intellectuelle en vue de la création d’engins de destruction, la crainte du mal que nous pouvons nous faire mutuellement, le risque quotidien et permanent de voir la fin de tout ce que l’homme a réalisé, sont le produit de la folie humaine. (...) C’est dans nos cœurs que réside le mal, c’est de nos cœurs qu’il doit être extirpé”¹²⁵. [“we must become aware that the hatred, the expenditure of time and money and intellectual hability upon weapons of destruction, the fear of what we may do to each other, and the imminent daily and hourly risk of an end to all that man has achieved, (...) all this is a product of human folly. (...) It is in our hearts that the evil lies, and it is from our hearts that it must be plucked out”¹²⁶].

97. Some other great thinkers of the 20th century (from distinct branches of knowledge), expressed their grave common concern with the increased human capacity of destruction coupled with the development of scientific-technological knowledge. Thus, the historian Arnold Toynbee (A Study in History, 1934-1954; and Civilization on Trial, 1948), regretted precisely the modern tragedy that human iniquity was not eliminated with the development of scientific-technological knowledge, but widely enlarged, without a concomitant advance at spiritual level¹²⁷. And the increase in armaments and in the capacity of destruction, – he added, – became a symptom of the fall of civilizations¹²⁸.

98. For his part, the writer Hermann Hesse, in a posthumous book of essays (Guerre et paix, 1946), originally published shortly after the II world war, warned that with the mass killings, not only do we keep on killing ourselves, but also our present and perhaps also our future¹²⁹. The worst destruction, – he added, – was the one organized by the State itself, with its corollary, “the philosophy of the State”, accompanied by capital and industry¹³⁰. The philosopher and theologian Jacques Maritain (Oeuvres Complètes, 1961-1967), in turn, wrote that the atrocities perpetrated in the XXth century had “une importance plus tragique pour la conscience humaine”¹³¹. In calling for an “integral humanism”, he warned that the human person transcends the State, and the realisation of the common good is to be pursued keeping in mind human dignity¹³². In his criticism of the “realists”, he stressed the imperatives of ethics and justice, and the importance of general principles of law, in the line of jusnaturalist thinking¹³³.

99. Another writer, the humanist Stefan Zweig, remained always concerned with the fate of humankind. He was impressed with the Scripture’s legend of the Tower of Babel, having written an essay on it in 1916, and kept it in mind along the years, as shown in successive essays written in more than the two following decades¹³⁴, taking it as a symbol of the perennial yearning for a unified humanity. In his own words,

The history of tomorrow must be a history of all humanity and the conflicts between individual conflicts must be seen as redundant alongside the common good of the community. History must then be transformed from the current woeful State to a completely new position; (...) it must clearly contrast the old ideal of victory with the new one of unity and the old glorification of war with a new contempt for it. (...) [T]he only important thing is to push forward under the banner of a community of nations, the mentality of mankind (...)¹³⁵.

100. Yet, in his dense and thoughtful intellectual auto-biography (Le monde d’hier, 1944), written shortly before putting an end to his own life, Stefan Zweig expressed his deep concern with the fading away of conscience, disclosed by the fact that the world got used to the “dehumanisation, injustice and brutality, as never before in hundreds of centuries”¹³⁶; persons had been transformed into simple objects¹³⁷. Earlier on, – before the nuclear age, – his friend the psychologist Sigmund Freud, in a well-known essay (Civilization and Its Discontents, 1930), expressed his deep preoccupation with what he perceived as an impulse to barbarism and destruction, which could not be expelled from the human psyche¹³⁸. In face of human hostility and the threat of self-disintegration, – he added, – there is a consequent loss of happiness¹³⁹.

101. Another psychologist, Carl Jung, referring, in his book Aspects du drame contemporain (1948), to events of contemporary history of his epoch, warned against subsuming individuals under the State; in his view, collective evil and culpability contaminate everyone everywhere¹⁴⁰. He further warned against the tragic dehumanization of others¹⁴¹ and the psychic exteriorizations of mass movements (of the collective inconscient) conducive to destruction¹⁴².

102. To the writer and theologian Albert Schweitzer (who wrote his Kulturphilosophie in 1923), the essence of civilization lies in the respect for life, to the benefit of each person and of humankind¹⁴³. He rejected the “illness” of Realpolitik, having stated that good consists in the preservation and exaltation of life, and evil lies in its destruction; nowadays more than ever, — he added, — we need an “ethics of reverence for life”, what requires responsibility¹⁴⁴. He insisted, in his book La civilisation et l’éthique (1923), that respect for life started as from “une prise de conscience” of one’s responsibility vis-à-vis the life of others¹⁴⁵.

103. Later on in his life, then in the nuclear age, in his series of lectures Paix ou guerre atomique (1958), A. Schweitzer called for an end to nuclear weapons, with their “destructions et anéantissements inimaginables”¹⁴⁶. In his own words,

La guerre atomique ne connaît pas de vainqueurs, mais uniquement des vaincus. Chaque belligérant subit par les bombes et les projectiles atomiques de l’adversaire les mêmes dégâts qu’il lui inflige par les siens. Il en résulte un anéantissement continu (...). Il peut seulement dire: allons-nous nous suicider tous les deux par une extermination réciproque?¹⁴⁷

104. Well before them, by the turn of the 19th to the 20th century, the writer Leo Tolstoi warned (The Slavery of Our Times, 1900) against the undue use of the State monopoly of “organized violence”, conforming a new form of slavery of the vulnerable ones¹⁴⁸; he criticized the recruitment of personnel to be sent to war to kill defenseless persons, perpetrating acts of extreme violence¹⁴⁹. On his turn, the physician Georges Duhamel warned (in his account Civilisation – 1914-1917) against the fact that war had become an industry of killing, with a “barbaric ideology”, destroying civilization with its “lack of humanity”; yet, he still cherished the hope that the spirit of humanism could flourish from the ashes¹⁵⁰.

105. The historian of ideas Isaiah Berlin, for his part, warned (The Proper Study of Mankind) against the dangers of the raison d’État, and stressed the relevance of values, in the search of knowledge, of cultures, and of the recta ratio¹⁵¹. On his turn, the writer Erich Fromm upheld human life in insisting that there could only exist a truly “civilized” society if based on humanist values¹⁵². Towards the end of his life, in his book The Anatomy of Human Destructivity (1974), he warned against destruction and propounded the prevalence of love for life¹⁵³.

106. E. Fromm further warned that the devastation of wars (including the contemporary ones) have led to the loss of hope and to brutalization, amidst the tension of the co-existence or ambivalence between civilization and barbarism, which requires all our endeavours towards the revival of humanism¹⁵⁴. Likewise, in our days, the philosopher Edgar Morin has also warned that the advances of scientific knowledge disclosed an ambivalence, in that they provided, on the one hand, the means to improve the knowledge of the world, and, on the other hand, with the production (and proliferation) of nuclear weapons, in addition to other weapons (biological and chemical) of mass destruction, the means to destroy the world¹⁵⁵.

107. Future has thus become unpredictable, and unknown, in face of the confrontation between the forces of life and the forces of death. Yet, – he added, – human beings are endowed with conscience, and are aware that civilizations, as well as the whole of humankind, are mortal¹⁵⁶. E. Morin further contended the tragic experiences lived in recent times should lead to the repentance of barbarism and the return to humanism; in effect, to think about, and resist to, barbarism, amounts to contributing to recreate humanism¹⁵⁷.

108. For his part, in the late eighties, in his book of essays Silences et mémoires d’hommes (1989), Elie Wiesel stressed the need of memory and attention to the world wherein we live, so as to combat the indifference to violence and evil¹⁵⁸. Looking back to the Book of Genesis, he saw it fit to recall that “Caïn et Abel – les premiers enfants sur terre, – se découvrirent ennemis. Bien que frères, l’un devin l’assassin ou la victime de l’autre. L’enseignement que nous devrions en tirer? Deux hommes peuvent être frères et néanmoins désireux de s’entre-tuer. Et aussi: quiconque tue, tue son frère. Seulement cela, on l’apprend plus tard”¹⁵⁹.

109. Turning attention to the threat of nuclear weapons, E. Wiesel sharply criticized the already prevailing attitude of indifference to it: “le monde, aujourd’hui, nous paraît étonnamment indifférent vis-à-vis de la question nucléaire”, – an attitude which he found ununderstandable¹⁶⁰. And he added that

L´indifférence (...) peut elle aussi devenir contagieuse. (...) L’indifférence permet également de mesurer la progression du mal que mine la société. (...) Là encore, la mémoire seule peut nous réveiller. Si nous nous souvenons de ce qui s’est passé il y a quarante ans, nous avons une possibilité d’empêcher de nouvelles catastrophes. Sinon, nous risquons d’être les victimes de notre propre indifférence. Car si nous sommes indifférents aux leçons de notre passé, nous le serons aux espoirs inhérents à notre avenir. (...) Voici mon angoisse: si nous oublions, nous serons oubliés. (...) Si nous restons indifférents à notre sort, (...) il ne restera personne pour raconter notre histoire¹⁶¹.

110. In effect, already in the early XXth century, Henri Bergson, in his monograph La conscience et la vie (1911), devoted attention to the search for meaning in life: to him, to live with conscience is to remember the past (memory) in the present, and to anticipate the future¹⁶². In his own words,

Retenir ce qui n’est déjà plus, anticiper sur ce qui n’est pas encore, voilà donc la première fonction de la conscience. (...) [L]a conscience est un trait d’union entre ce qui a été et ce qui sera, un pont jeté entre le passé et l’avenir¹⁶³.

111. Also in international legal doctrine, there have been those who have felt the need to move away from State voluntarism and acknowledge the prevalence of conscience over the “will”. It is not my intention to dwell upon this point here, as I have dealt with it elsewhere¹⁶⁴. For the purposes of the present Dissenting Opinion, suffice it to recall a couple of examples. The jurist Gustav Radbruch, at the end of his life, forcefully discarded legal positivism, always subservient to power and the established order, and formulated his moving conversion and profession of faith in jusnaturalism¹⁶⁵. His lucid message was preserved and has been projected in time¹⁶⁶, thanks to the devotion of his students and disciples of the School of Heidelberg.

112. There are further examples of doctrinal endeavours to put limits to State voluntarism, such as the jusnaturalist construction of, e.g., Alfred Verdross, – as from the idée du droit, – of an objective law finding expression in the general principles of law, preceding positive international law¹⁶⁷; or else the conception of the droit spontanée, of Roberto Ago, upholding the spontaneous formation (emanating from human conscience, well beyond the “will” of individual States) of new rules of international law¹⁶⁸.

113. In the view of Albert de La Pradelle, the conception of the formation of international law on the strict basis of reciprocal rights and duties only of States is “extremely grave and dangerous”¹⁶⁹. International law is a “droit de la communauté humaine”, encompassing, besides States, also peoples and human beings; it is the “droit de toute l’humanité”, on the foundations of which are the general principles of law¹⁷⁰. To A. de La Pradelle, this “droit de l’humanité” is not static, but rather dynamic, attentive to human values, in the line of jusnaturalist thinking¹⁷¹.

114. “Juridical conscience” is invoked in lucid criticisms of legal positivism¹⁷². Thus, in his monograph-plea (of 1964) against nuclear weapons, for example, Stefan Glaser sustained that customary international norms are those that, “according to universal conscience”, ought to regulate the international community, for fulfilling common interest and responding to the demands of justice; and he added that

C’est sur cette conscience universelle que repose la principale caractéristique du droit international: la conviction que ses normes sont indispensables pour le bien commun explique leur reconnaissance en tant que règles obligatoires¹⁷³.

115. This is the position that I also uphold; in my own understanding, it is the universal juridical conscience that is the ultimate material source of international law¹⁷⁴. In my view, one cannot face the new challenges confronting the whole international community keeping in mind only State susceptibilities; such is the case with the obligation to render the world free of nuclear weapons, an imperative of recta ratio and not a derivative of the “will” of States. In effect, to keep hope alive it is necessary to bear always in mind humankind as a whole.

116. For my part, within the ICJ, I have deemed it fit to ponder, in my Dissenting Opinion (paras. 488-489) in the case concerning the Application of the Convention against Genocide (Croatia versus Serbia, Judgment of 03.02.2015), that, from Homer’s Iliad (late VIIIth or early VIIth century b.C.) to date, individuals, indoctrinated and conditioned for war and destruction, have become objects of the struggle for domination. I recalled that this has been lucidly warned by Simone Weil, in a penetrating essay (of 1934), to whom this ends up victimizing everyone, there occurring “the substitution of the ends by the means”, transforming human life into a simple means, which can be sacrificed; individuals become unable to think, in face of the “social machine” of destruction of the spirit and fabrication of the inconscience¹⁷⁵.

117. The presence of evil has accompanied and marked human existence along the centuries. In the same aforementioned Dissenting Opinion in the case concerning the Application of the Convention against Genocide (2015), after drawing attention to “the ever-lasting presence of evil, which appears proper to the human condition, in all times”, I added:

It is thus understandable that it has attracted the concern of, and has presented challenges to, legal thinking, in our times and previous centuries, as well as other branches of knowledge (such as, e.g., history, psychology, anthropology, sociology, philosophy and theology, among others). It has marked presence in literature as well. This long-standing concern, along centuries, has not, however, succeeded to provide an explanation for evil.

Despite the endeavours of human thinking, along history, it has not been able to rid humankind of it. Like the passing of time, the ever-lasting presence of evil is yet another mystery surrounding human beings, wherever and while they live. Whenever individuals purport to subject their fellow human beings to their ‘will’, placing this latter above conscience, evil is bound to manifest itself. In one of the most learned writings on the problem of evil, R.P. Sertillanges ponders that the awareness of evil and the anguish emanated therefrom have marked presence in all civilizations. The ensuing threat to the future of human kind has accounted for the continuous presence of that concern throughout the history of human thinking¹⁷⁶.

Religions were the first to dwell upon the problem of evil, which came also to be considered by philosophy, history, psychology, social sciences, and literature. Along the centuries, human thinking has always acknowledged the need to examine the problem of evil, its incidence in human relations, in the world wherein we live, without losing faith in human values¹⁷⁷. Despite the perennial quest of human thinking to find answers to the problem of evil, – going as far back as the Book of Job, or even further back, to the Genesis itself¹⁷⁸, – not even theology has found an explanation for it, satisfactory to all” (paras. 472-474).

118. The Scripture’s account of Cain and Abel (Genesis, ch. 4: 8-10) along the centuries came to be regarded as the aetiology of the fragmentation of humankind, as from the indifference of an individual to the fate of another. The increasing disregard for human life was fostered by growing, generalized and uncontrolled violence in search of domination. This was further aggravated by ideological manipulations, and even the dehumanization of the others, the ones to be victimized. The problem of evil continues to be studied, in face of the human capacity for extreme violence and self-destruction on a large scale¹⁷⁹. The tragic message of the Book of Genesis, in my perception, seems perennial, as contemporary as ever, in the current nuclear age.

IX. The Attention of the United Nations Charter to Peoples

119. It should be kept in mind that the United Nations Charter was adopted on 26.06.1945 on behalf of “we, the peoples of the United Nations”. In several provisions it expresses its concern with the living conditions of all peoples (preamble, Articles 55, 73(a), 76, 80), and calls for the promotion of, and universal respect for, human rights (Articles 55(c), 62(2), 68, 76(c)). It invokes the “principles of justice and international law” (Article 1(1), and refers to “justice and respect for the obligations arising from treaties and other sources of international law” (preamble). It further states that the Statute of the ICJ, “the principal judicial organ of the United Nations”, forms “an integral part” of the U.N. Charter itself (Article 92).

120. In the mid-fifties, Max Huber, a former Judge of the PCIJ, wrote that international law has to protect also values common to humankind, attentive to respect for life and human dignity, in the line of the jusnaturalist conception of the jus gentium; the U.N. Charter, in incorporating human rights into this droit de l’humanité, initiated a new era in the development of international law, in a way rescuing the idea of the civitas maxima, which marked presence already in the historical origins of the law of nations. The U.N. Charter’s attention to peoples, its principled position for the protection of the human person, much transcend positive domestic law and politics¹⁸⁰.

121. The new vision advanced by the U.N. Charter, and espoused by the Law of the United Nations, has, in my perception, an incidence upon judicial settlement of international disputes. Thus, the fact that the ICJ’s mechanism for the handling of contentious cases is an inter-State one, does not mean that its reasoning should also pursue a strictly inter-State dimension; that will depend on the nature and substance of the cases lodged with it. And there have been several cases lodged with the Court that required a reasoning going well beyond the inter-State dimension¹⁸¹. Such reasoning beyond the inter-State dimension is faithful to the U.N. Charter, the ICJ being “the principal judicial organ of the United Nations” (Article 92).

122. Recently, in one of such cases, that of the Application of the Convention against Genocide (Croatia versus Serbia, 2015), in my extensive Dissenting Opinion appended thereto, I have deemed it fit, inter alia, to warn that

The present case concerning the Application of the Convention against Genocide (Croatia versus Serbia) provides yet another illustration of the pressing need to overcome and move away from the dogmatic and strict inter-State outlook, even more cogently. In effect, the 1948 Convention against Genocide, – adopted on the eve of the Universal Declaration of Human Rights, – is not State-centered, but rather people-centred. The Convention against Genocide cannot be properly interpreted and applied with a strict State-centered outlook, with attention turned to inter-State susceptibilities. Attention is to be kept on the justiciables, on the victims, – real and potential victims, – so as to impart justice under the Genocide Convention (para. 496).

123. In a report in the early nineties, a former U.N. Secretary-General, calling for a “concerted effort” towards complete disarmament, rightly pondered that “[d]ans le monde d’aujourd’hui, les nations ne peuvent plus se permettre de résoudre les problèmes par la force. (...) Le désarmement est l’un des moyens les plus importants de réduire la violence dans les relations entre États”¹⁸². There followed the cycle of World Conferences of the United Nations along the nineties, in a commendable endeavour of the United Nations to go beyond and transcend the purely inter-State dimension, imbued of a spirit of solidarity, so as to consider the challenges for the future of humankind.

124. Those U.N. World Conferences disclosed a growing awareness of the international community as a whole, and entered into a continuing universal dialogue between U.N. member States and entities of the civil societies, – which I well remember, having participated in it¹⁸³, – so as to devise the new international agenda in the search of common solutions for the new challenges affecting humankind as a whole. In focusing attention on vulnerable segments of the populations, the immediate concern has been with meeting basic human needs, that memorable cycle of World Conferences disclosed a common concern with the deterioration of living conditions, dramatically affecting increasingly greater segments of the population in many parts of the world nowadays¹⁸⁴.

125. The common denominator in those U.N. World Conferences – as I have pointed out on distinct occasions along the last two decades¹⁸⁵  – can be found in the recognition of the legitimacy of the concern of the international community as a whole with the conditions of living of all human beings everywhere. The placing of the well-being of peoples and human beings, of the improvement of their conditions of living, at the centre of the concerns of the international community, is remindful of the historical origins of the droit des gens¹⁸⁶.

126. At the end of the decade and the dawn of the new millennium, the United Nations Millennium Declaration (adopted by General Assembly’s resolution 55/2, of 08.09.2000) stated the determination “to eliminate the dangers posed by weapons of mass destruction” (para. II(8)), and, noticeably,

To strive for the elimination of weapons of mass destruction, particularly nuclear weapons, and to keep all options open for achieving this aim, including the possibility of convening and international conference to identify ways of eliminating nuclear dangers (para. II(9)).

127. In addition to our responsibilities to our individual societies, – the U.N. Millennium Declaration added, –

we have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. (...) [W]e have a duty therefore to all the world’s people, especially the most vulnerable and, in particular, the children of the world, to whom the future belongs.

We reaffirm our commitment to the purposes and principles of the Charter of the United Nations, which have proved timeless and universal. Indeed, their relevance and capacity to inspire have increased, as nations and peoples have become increasingly interconnected and interdependent (paras. I(2-3)).

X. Impertinence of the So-Called Monetary Gold “Principle”

128. The distortions generated by the obsession with the strict inter-State paradigm are not hard to detect. An example is afforded, in this connection, by the ICJ’s handling of the East Timor case (1995): the East Timorese people had no locus standi to request intervention in the proceedings, not even to present an amicus curiae, although the crucial point under consideration was that of sovereignty over their own territory. Worse still, the interests of a third State (which had not even accepted the Court’s jurisdiction) were taken for granted and promptly safeguarded by the Court, by means of the application of the so-called Monetary Gold “principle”, – an assumed “principle” also invoked now, two decades later, in the present case concerning the obligation of elimination of nuclear weapons!

129. Attention has to be turned to the nature of the case at issue, which may well require a reasoning– as the cas d’espèce does – moving away from “a strict State-centred voluntarist perspective” and from the “exaltation of State consent”, and seeking guidance in fundamental principles (prima principia), such as the principle of humanity. This is what I pointed out in my extensive Dissenting Opinion in the case concerning the Application of the Convention again t Genocide (Croatia versus Serbia, Judgment of 03.02.2015), where I pondered inter alia that such prima principia confer to the international legal order “its ineluctable axiological dimension”; they “conform its substratum, and convey the idea of an objective justice, in the line of jusnaturalist thinking” (para. 517).

130. That was not the first time I made such ponderation: I had done the same, in another extensive Dissenting Opinion (para. 213), in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination – CERD (Georgia versus Russian Federation, Judgment of 01.04.2011). In my subsequent aforementioned Dissenting Opinion in the case concerning the Application of the Convention against Genocide I expressed my dissatisfaction that in a case pertaining to the interpretation and application of the Convention against Genocide, the ICJ even made recourse to the so-called Monetary Gold “principle”¹⁸⁷, which had no place in a case like that, and “which does not belong to the realm of the prima principia, being nothing more than a concession to State consent, within an outdated State voluntarist framework” (para. 519).

131. May I, in the present Dissenting Opinion, this time in the case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, again leave on the records my dissatisfaction for the same reason. Once again, may I stress that the adjudication of a case like the present one shows the need to go beyond the strict inter-State outlook. The fact that the mechanism for the adjudication of contentious cases before the ICJ is an inter-State one, does not at all imply that the Court’s reasoning should likewise be strictly inter State. In the present case concerning nuclear weapons and the obligation of nuclear disarmament, it is necessary to focus attention on peoples, rather than on inter-State susceptibilities. It is imperative to keep in mind the world population, in pursuance of a humanist outlook, in the light of the principle of humanity.

XI. The Fundamental Principle of the Juridical Equality of States

132. The present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament stresses the utmost importance of the principle of the juridical equality of States. The importance attributed to fundamental principles, the idea of an objective justice, and its incidence upon the laws, go back in time, being deeply-rooted in jusnaturalist thinking. If laws are deprived of justice, they no longer oblige in conscience. Ethics cannot be dissociated from law; in the international scenario, each one is responsible for all the others. To the “founding fathers” of the law of nations (droit des gens), like F. de Vitoria and F. Suárez, the principle of equality was fundamental, in the relations among individuals, as well as among nations. Their teachings have survived the erosion of time: today, four and a half centuries later, the basic principle of equality and non-discrimination is in the foundations of the Law of the United Nations itself.

133. The present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament is surely not the first one before the ICJ that brings to the fore the relevance of the principle of the juridical equality of States. In the ICJ’s Order (of Provisional Measures of Protection) of 03.03.2014, I have deemed it fit to point out, in my Separate Opini n appended thereto, that the case concerning Questions Relating to the Seizure and Detention of Certain Documents and Data

bears witness of the relevance of the principle of the juridical equality of States. The prevalence of this fundamental principle has marked a longstanding presence in the realm of international law, ever since the times of the II Hague Peace Conference of 1907, and then of the drafting of the Statute of the Permanent Court of International Justice by the Advisory Committee of Jurists, in June-July 1920. Recourse was then made, by that Committee, inter alia, to general principles of law, as these latter embodied the objective idea of justice. A general principle such as that of the juridical equality of States, enshrined a quarter of a century later in the United Nations Charter (Article 2(1)), is ineluctably intermingled with the quest for justice.

Subsequently, throughout the drafting of the 1970 U.N. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1964-1970), the need was felt to make it clear that stronger States cannot impose their will upon the weak, and that de facto inequalities among States cannot affect the weaker in the vindication of their rights. The principle of the juridical equality of States gave expression to this concern, embodying the idée de justice, emanated from the universal juridical conscience (paras. 44-45).

134. And one decade earlier, in my General Course on Public International Law delivered at the Hague Academy of International Law (2005), I pondered that

On successive occasions the principles of international law have proved to be of fundamental importance to humankind’s quest for justice. This is clearly illustrated by the role played, inter alia, by the principle of juridical equality of States. This fundamental principle, – the historical roots of which go back to the II Hague Peace Conference of 1907, – proclaimed in the U.N. Charter and enunciated also in the 1970 Declaration of Principles, means ultimately that all States, – factually strong and weak, great and small, – are equal before international law, are entitled to the same protection under the law and before the organs of international justice, and to equality in the exercise of international rights and duties.

Despite successive attempts to undermine it, the principle of juridical equality of States has remained, from the II Hague Peace Conference of 1907 to date, one of the basic pillars of International Law. It has withstood the onslaught of time, and shown itself salutary for the peaceful conduction of international relations, being ineluctably associated – as it stands – with the foundations of International Law. It has been very important for the international legal system itself, and has proven to be a cornerstone of international law in the United Nations era. In fact, the U.N. Charter gave it a new dimension, and the principle developments such as that of the system of collective security, within the ambit of the law of the United Nations”¹⁸⁸.

135. By the turn of the century, the General Assembly’s resolution 55/2, of 08.09.2000, adopted the United Nations Millennium Declaration, which inter alia upheld the “sovereign equality of all States”, in conformity with “the principles of justice and international law” (para. I(4)). Half a decade later, the General Assembly’s resolution 60/1, of 16.09.2005, adopted the World Summit Outcome, which inter alia expressed the determination “to establish a just and lasting peace all over the world in accordance with the purposes and principles of the [U.N.] Charter”, as well as “to uphold the sovereign equality of all States” (para. I(5)). In stressing therein the “vital importance of an effective multilateral system” to face current challenges to international peace and security (paras. 6-7), the international community reiterated its profession of faith in the general principles of international law.

XII. Unfoundedness of the Strategy of “Deterrence”

136. In effect, the strategy of “deterrence”, pursued by NWS in the present context of nuclear disarmament in order to attempt to justify their own position, makes abstraction of the fundamental principle of the juridical equality of States, enshrined into the U.N. Charter. Factual inequalities cannot be made to prevail over the juridical equality of States. All U.N. member States are juridically equal. The strategy of a few States pursuing their own “national security interests” cannot be made to prevail over a fundamental principle of international law set forth in the U.N. Charter: factual inequalities between States cannot, and do not prevail over the juridical equality of States.

137. In its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, permeated with ambiguity, the ICJ gave undue weight to “the still strong adherence to the practice of deterrence” (paras. 67 and 73) by a few NWS, to the point of beholding in it an obstacle to the formation and consolidation of opinio juris and a customary rule as to the illegality of nuclear weapons, leading to “a specific and express prohibition” of their use (para. 73). Here the Court assumed its usual positivist posture: in its view, the prohibition must be express, stated in positive law, even if those weapons are capable of destroying all life on earth, the whole of humankind...

138. The ICJ, in its Advisory Opinion of 1996, gave too much weight to the opposition of NWS as to the existence of an opinio juris on the unlawfulness of nuclear weapons. And this, despite the fact that, in their overwhelming majority, member States of the United Nations stand clearly against nuclear weapons, and in favour of nuclear disarmament. The 1996 Advisory Opinion, notwithstanding, appears unduly influenced by the lack of logic of “deterrence”¹⁸⁹. One cannot conceive, – as the 1996 Advisory Opinion did, – of recourse to nuclear weapons by a hypothetical State in “self-defence” at the unbearable cost of the devastating effects and sufferings inflicted upon humankind as a whole, in an “escalade vers l’apocalypse”¹⁹⁰.

139. The infliction of such devastation and suffering is in flagrant breach of international law, – of the ILHR, IHL and the Law of the United Nations (cf. part XIII, infra). It is, furthermore, in flagrant breach of norms of jus cogens¹⁹¹. The strategy of “deterrence” seems to make abstraction of all that. The ICJ, as the International Court of Justice, should have given, on all occasions when it has been called upon to pronounce on nuclear weapons (in the exercise of its jurisdiction on contentious and advisory matters), far greater weight to the raison d’humanité¹⁹², rather than to the raison d’État nourishing “deterrence”. We have to keep in mind the human person and the peoples, for which States were created, instead of relying only on what one assumes to be the raison d’État. The raison d’humanité, in my understanding, prevails surely over considerations of Realpolitik.

140. In its 1996 Advisory Opinion, the ICJ, however, at the same time, rightly acknowledged the importance of complete nuclear disarmament, asserted in the series of General Assembly resolutions, and the relevance of the corresponding obligation under Article VI of the NPT to the international community as a whole (paras. 99 and 102). To the Court, this is an obligation of result, and not of mere conduct (para. 99). Yet, it did not extract the consequences of that. Had it done so, it would have reached the conclusion that nuclear disarmament cannot be hampered by the conduct of a few States – the NWS – which maintain and modernize their own arsenals of nuclear weapons, pursuant to their strategy of “deterrence” .

141. The strategy of “deterrence” has a suicidal component. Nowadays, in 2016, twenty years after the 1996 ICJ Advisory Opinion, and with the subsequent reiteration of the conventional and customary international legal obligation of nuclear disarmament, there is no longer any room for ambiguity. There is an opinio juris communis as to the illegality of nuclear weapons, and as to the well-established obligation of nuclear disarmament, which is an obligation of result and not of mere conduct. Such opinio juris cannot be erased by the dogmatic positivist insistence on an express prohibition of nuclear weapons; on the contrary, that opinio juris discloses that the invocation of the absence of an express prohibition is nonsensical, in relying upon the destructive and suicidal strategy of “deterrence”.

142. Such strategy is incompatible with jusnaturalist thinking, always attentive to ethical considerations (cf. part XV, infra). Over half a century ago (precisely 55 years ago), the U.N. General Assembly had already stated, in its seminal resolution 1653 (XVI) of 1961, that the use of nuclear weapons was “contrary to the spirit, letter and aims of the United Nations”, a “direct violation” of the U.N. Charter, a breach of international law and of “the laws of humanity”, and “a crime against mankind and civilization” (operative para. 1). Several subsequent General Assembly resolutions upheld the same understanding of resolution 1653(XVI) of 1961 (cf. part III, supra), leaving thus no room at all for ambiguity or hesitation, or to any concession.

143. Two decades ago, in the advisory proceedings of late 1995 before the ICJ, conducive to its 1996 Advisory Opinion on Threat or Use of Nuclear Weapons, fierce criticisms were voiced of the strategy of “deterrence”, keeping in mind the inhumane sufferings of victims of nuclear detonation, radiation and contamination¹⁹³. Attention was drawn, on the occasion, to the “distortion of logic” in “deterrence”, in trying to rely on so immensely destructive weapons to keep peace, and in further trying to persuade others “to accept that for the last 50 or so years this new and more dangerous and potentially genocidal level or armaments should be credited with keeping peace”¹⁹⁴.

144. In the aforementioned advisory proceedings, “nuclear deterrence” was dismissed as being “simply the maintenance of a balance of fear”¹⁹⁵; it was criticized as seeking to ground itself on a “highly questionable” premise, whereby a handful of NWS feel free to “arrogate to themselves” the faculty “to determine what is world peace and security, exclusive in the context of their own” national strategies and interests¹⁹⁶. It was contended that nuclear weapons are in breach of international law by their own nature, as weapons of catastrophic mass destruction; “nuclear deterrence” wrongfully assumes that States and individuals act rationally, leaving the world “under the nuclear sword of Damocles”, stimulating “the nuclear ambitions of their countries, thereby increasing overall instability”, and also increasing the danger of their being used “intentionally or accidentally”¹⁹⁷.

145. The NWS, in persisting to rely on the strategy of “deterrence”, seem to overlook the above-reviewed distinct series of U.N. General Assembly resolutions (cf. part III, supra) condemning nuclear weapons and calling for their elimination. The strategy of “deterrence” has come under strong criticism along the years, for the serious risks it carries with it, and for its indifference to the goal – supported by the United Nations, – of achieving a world free of nuclear weapons. Very recently, e.g., participants in the series of Conferences on Humanitarian Impact of Nuclear Weapons (2013-2014) have strongly criticized the strategy of nuclear “deterrence”. In a statement sent to the 2014 Vienna Conference, for example, the U.N. Secretary-General warned against the dangers of nuclear “deterrence”, undermining world stability (cf. part XIX, infra).

146. There is here, in effect, clearly formed, an opinio juris communis as to the illegality and prohibition of nuclear weapons. The use or threat of use of nuclear weapons being a clear breach of international law, of International Humanitarian Law and of the International Law of Human Rights, and of the U.N. Charter, renders unsustainable and unfounded any invocation of the strategy of “deterrence”. In my view, a few States cannot keep on insisting on “national security interests” to arrogate to themselves indefinitely the prerogative to determine by themselves the conditions of world peace, and to impose them upon all others, the overwhelming majority of the international community. The survival of humankind cannot be made to depend on the “will” of a handful of privileged States. The universal juridical conscience stands well above the “will” of individual States.

XIII. The Illegality of Nuclear Weapons and the Obligation of Nuclear Disarmament

1. The Condemnation of All Weapons of Mass Destruction

147. Since the beginning of the nuclear age, it became clear that the effects of nuclear weapons (such as heat and radiation) cannot be limited to military targets only, being thus by nature indiscriminate and disproportionate in their long-term devastation, disclosing the utmost cruelty. The opinio juris communis as to the prohibition of nuclear weapons, and of all weapons of mass destruction, has gradually been formed, along the last decades¹⁹⁸. If weapons less destructive than nuclear weapons have already been expressly prohibited (as is the case of biological and chemical weapons), it would be nonsensical to argue that, those which have not, by positive conventional international law, like nuclear weapons, would not likewise be illicit; after all, they have far greater and long-lasting devastating effects, threatening the existence of the international community as a whole.

148. It may be recalled that, already in 1969, all weapons of mass destruction were condemned by the Institut de Droit International (I.D.I.). In the debates of its Edinburgh session on the matter, emphasis was placed on the need to respect the principle of distinction (between military and non-military objectives), and the terrifying effects of the use of nuclear weapons were pointed out, – the example of the atomic bombing of Hiroshima and Nagasaki having been expressly recalled¹⁹⁹. In its resolution of September 1969 on the matter, the Institut began by restating, in the preamble, the prohibition of recourse to force in international law, and the duty of protection of civilian populations in any armed conflict; it further recalled the general principles of international law, customary rules and conventions, – supported by international case-law and practice, – which “clearly restrict” the extent to which the parties engaged in a conflict may harm the adversary, and warned against

the consequences which the indiscriminate conduct of hostilities and particularly the use of nuclear, chemical and bacteriological weapons, may involve for civilian populations and for mankind as a whole²⁰⁰.

149. In its operative part, the aforementioned resolution of the Institut stressed the importance of the principle of distinction (between military and non-military objectives) as a “fundamental principle of international law” and the pressing need to protect civilian populations in armed conflicts²⁰¹, and added, in paragraphs 4 and 7, that:

Existing international law prohibits all armed attacks on the civilian population as such, as well as on non-military objects, notably dwellings or other buildings sheltering the civilian population, so long as these are not used for military purposes (...).

Existing international law prohibits the use of all weapons which, by their nature, affect indiscriminately both military objectives and non-military objects, or both armed forces and civilian populations. In particular, it prohibits the use of weapons the destructive effect of which is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable (self-generating weapons), as well as of ‘blind’ weapons²⁰².

150. For its part, the International Law Association (I.L.A.), in its more recent work (in 2014) on nuclear disarmament, after referring to Article VI of the NPT, was of the view that it was not only conventional, but also an evolving customary international obligation with an erga omnes character, affecting “the international community as a whole”, and not only the States Parties to the NPT²⁰³. It also referred to the “world-wide public opinion” pointing to “the catastrophic consequences for humankind of any use or detonation of nuclear weapons”, and added that reliance on nuclear weapons for “deterrence” was thus unsustainable²⁰⁴.

151. In its view, “nuclear” deterrence is not a global “umbrella”, but rather a threat to international peace and security, and NWS are still far from implementing Article VI of the NPT²⁰⁵. To the International Law Association, the provisions of Article VI are not limited to States Parties to the NPT, “they are part of customary international law or at least evolving custom”; they are valid erga omnes, as they affect “the international community as a whole”, and not only a group of States or a particular State²⁰⁶. Thus, as just seen, learned institutions in international law, such as the I.D.I. and the I.L.A., have also sustained the prohibition in international law of all weapons of mass destruction, starting with nuclear weapons, the most devastating of all.

152. A single use of nuclear weapons, irrespective of the circumstances, may today ultimately mean the end of humankind itself²⁰⁷. All weapons of mass destruction are illegal, and are prohibited: this is what ineluctably ensues from an international legal order of which the ultimate material source is the universal juridical conscience²⁰⁸. This is the position I have consistently sustained along the years, including in a lecture I delivered at the University of Hiroshima, Japan, on 20.12.2004²⁰⁹. I have done so in the line of jusnaturalist thinking, faithful to the lessons of the “founding fathers” of the law of nations, keeping in mind not only States, but also peoples and individuals, and humankind as a whole.

2. The Prohibition of Nuclear Weapons: The Need of a People-Centred Approach

153. In effect, the nuclear age itself, from its very beginning (the atomic blasts of Hiroshima and Nagasaki in August 1945) can be properly studied from a people-centred approach. There are moving testimonies and historical accounts of the devastating effects of nuclear weapons, from surviving victims and witnesses²¹⁰. Yet, even with the eruption of the nuclear age, attention remained focused largely on State strategies: it took some time for them gradually to shift to the devastating effects of nuclear weapons on peoples.

154. As recalled in one of the historical accounts, only at the first Conference against Atomic and Hydrogen Bombs (1955), “the victims had their first opportunity, after ten years of silence, to make themselves heard”, in that forum²¹¹. Along the last decades, there have been endeavours to shift attention from State strategies to the numerous victims and enormous damages caused by nuclear weapons, focusing on “human misery and human dignity”²¹². Recently, one significant initiative to this effect has been the series of Conferences on the Humanitarian Impact of Nuclear Weapons (2013-2014), which I shall survey later on in this Dissenting Opinion (cf. part XIX, infra).

155. There has been a chorus of voices of those who have been personally victimized by nuclear weapons in distinct circumstances, – either in the atomic bombings of Hiroshima and Nagasaki (1945), or in nuclear testing (during the cold-war era) in regions such as Central Asia and the Pacific. Focusing on their intensive suffering (e.g., ensuing from radioactive contamination and forced displacement)²¹³, affecting successive generations, they have drawn attention to the humanitarian consequences of nuclear weapon detonations.

156. In addressing the issue of nuclear weapons, on four successive occasions (cf. infra), the ICJ appears, however, to have always suffered from inter-State myopia. Despite the clarity of the formidable threat that nuclear weapons represent, the treatment of the issue of their prohibition under international law has most regrettably remained permeated by ambiguities. The present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament is the third time that attempts were made, by means of the lodging of contentious cases with the ICJ, to obtain its pronouncement thereon. On two prior occasions – in the Nuclear Tests cases (1974 and 1995)²¹⁴, the Court assumed, in both of them, a rather evasive posture, avoiding to pronounce clearly on the substance of a matter pertaining to the very survival of humankind.

157. May I here briefly single out one aspect of those earlier contentious proceedings, given its significance in historical perspective. It should not pass unnoticed that, in the first Nuclear Tests case (Australia and New Zealand versus France), one of the applicant States contended, inter alia, that the nuclear testing undertaken by the French government in the South Pacific region violated not only the right of New Zealand that no radioactive material enter its territory, air space and territorial waters and those of other Pacific territories but also “the rights of all members of the international community, including New Zealand, that no nuclear tests that give rise to radioactive fall-out be conducted”²¹⁵.

158. For its part, the other applicant State contended that it was seeking protection to the life, health and well-being of Australia’s population, in common with the populations of other States, against atmospheric nuclear tests by any State²¹⁶. Thus, over three decades ago, the perspective of the Applications Instituting Proceedings of both New Zealand and Australia (of 1973) went clearly – and correctly so – beyond the purely inter-State dimension, as the problem at issue concerned the international community as a whole.

159. Both Australia and New Zealand insisted on the people-centred approach throughout the legal proceedings (written and oral phases). New Zealand, for example, in its Memorial, invoked the obligation erga omnes not to undertake nuclear testing “owed to the international community as a whole” (paras. 207-208), adding that non-compliance with it aroused “the keenest sense of alarm and antagonism among the peoples” and States of the region wherein the tests were conducted (para. 212). In its oral arguments in the public sitting of 10.07.1974 in the same Nuclear Tests case, New Zealand again invoked “the rights of all members of the international community”, and the obligations erga omnes owed to the international community as a whole²¹⁷. And Australia, for example, in its oral arguments in the public sitting of 08.07.1974, referring to the 1963 Partial Test Ban Treaty, underlined the concern of “the whole international community” for “the future of mankind” and the responsibility imposed by “the principles of international law” upon “all States to refrain from testing nuclear weapons in the atmosphere”²¹⁸.

160. The outcome of the Nuclear Test cases, however, was rather disappointing: even though the ICJ issued orders of Provisional Measures of Protection in the cases in June 1973 (requiring the respondent State to cease testing), subsequently, in its Judgments of 1974²¹⁹, in view of the announcement of France’s voluntary discontinuance of its atmospheric tests, the ICJ found, yielding to State voluntarism, that the claims of Australia and New Zealand no longer had “any object” and that it was thus not called upon to give a decision thereon²²⁰. The dissenting Judges in the case rightly pointed out that the legal dispute between the contending parties, far from having ceased, still persisted, since what Australia and New Zealand sought was a declaratory judgment of the ICJ stating that atmospheric nuclear tests were contrary to international law²²¹.

161. The reticent position of the ICJ in that case was even more regrettable if one recalls that the applicants, in referring to the “psychological injury” caused to the peoples of the South Pacific region through their “anxiety as to the possible effects of radioactive fall-out on the well-being of themselves and their descendants”, as a result of the atmospheric nuclear tests, ironically invoked the notion of erga omnes obligations (as propounded by the ICJ itself in its obiter dicta in the Barcelona Traction case only four years earlier)²²². As the ICJ reserved itself the right, in certain circumstances, to reopen the case decided in 1974, it did so two decades later, upon an application instituted by New Zealand versus France. But in its Order of 22.09.1995, the ICJ dismissed the complaint, as it did not fit into the caveat of the 1974 Judgment, which concerned atmospheric nuclear tests; here, the complaint was directed against the underground nuclear tests conducted by France since 1974²²³.

162. The ICJ thus lost two historical opportunities, in both contentious cases (1974 and 1995), to clarify the key point at issue (nuclear tests). And now, with the decision it has just rendered today, 05.10.2016, it has lost a third occasion, this time to pronounce on the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, at the request of the Marshall Islands. This time the Court has found that the existence of a legal dispute has not been established before it and that it has no jurisdiction to consider the Application lodged with it by the Marshall Islands on 24.04.2014.

163. Furthermore, in the mid-nineties, the Court was called upon to exercise its advisory function, in respect of a directly related issue, that of nuclear weapons: both the U.N. General Assembly and the World Health Organization (WHO) opened those proceedings before the ICJ, by means of requests for an Advisory Opinion. Such requests no longer referred to nuclear tests, but rather to the question of the threat or use of nuclear weapons in the light of international law, for the determination of their illegality or otherwise.

164. In response to only one of the applications, that of the U.N. General Assembly²²⁴, the Court, in the Advisory Opinion of 08.07.1996 on the Threat or Use of Nuclear Weapons, affirmed that neither customary international law nor conventional international law authorizes specifically the threat or use of nuclear weapons; neither one, nor the other, contains a complete and universal prohibition of the threat or use of nuclear weapons as such; it added that such threat or use which is contrary to Article 2(4) of the U.N. Charter and does not fulfil the requisites of its Article 51, is illicit; moreover, the conduct in armed conflicts should be compatible with the norms applicable in them, including those of International Humanitarian Law; it also affirmed the obligation to undertake in good will negotiations conducive to nuclear disarmament in all its aspects²²⁵.

165. In the most controversial part of its Advisory Opinion (resolutory point 2E), the ICJ stated that the threat or use of nuclear weapons “would be generally contrary to the rules of international law applicable in armed conflict”, mainly those of International Humanitarian Law; however, the Court added that, at the present stage of international law “it cannot conclude definitively if the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which the very survival of a State would be at stake”²²⁶. The Court therein limited itself to record the existence of a legal uncertainty.

166. In fact, it did not go further than that, and the Advisory Opinion was permeated with evasive ambiguities, not avoiding the shadow of the non liquet, in relation to a question which affects, more than each State individually, the whole of humankind. The Advisory Opinion made abstraction of the fact that International Humanitarian Law applies likewise in case of self-defence, always safeguarding the principles of distinction and proportionality (which nuclear weapons simply ignore)²²⁷, and upholding the prohibition of infliction of unnecessary suffering.

167. The Advisory Opinion could and should have given greater weight to a point made before the ICJ in the oral arguments of November 1995, namely, that of the need of a people-centred approach in the present domain. Thus, it was stated, for example, that the “experience of the Marshallese people confirms that unnecessary suffering is an unavoidable consequence of the detonation of nuclear weapons”²²⁸; the effects of nuclear weapons, by their nature, are widespread, adverse and indiscriminate, affecting also future generations²²⁹. It was further stated that the “horrifying evidence” of the use of atomic bombs in Hiroshima and Nagasaki, followed by the experience and the aftermath of the nuclear tests carried out in the region of the Pacific Island States in the 1950s and the 1960s, have alerted to “the much graver risks to which mankind is exposed by the use of nuclear weapons”²³⁰.

168. The 1996 Opinion, on the one hand, recognized that nuclear weapons cause indiscriminate and durable suffering, and have an enormous destructive effect (para. 35), and that the principles of humanitarian law (encompassing customary law) are “intransgressible” (para. 79); nevertheless, these considerations did not appear sufficient to the Court to discard the use of such weapons also in self-defence, thus eluding to tell what the Law is in all circumstances. It is clear to me that States are bound to respect, and to ensure respect, for International Humanitarian Law (IHL) and the International Law of Human Rights (ILHR) in any circumstances; their fundamental principles belong to the domain of jus cogens, in prohibition of nuclear weapons.

169. Again, in the 1996 Opinion, it were the dissenting Judges, and not the Court’s split majority, who drew attention to this²³¹, and to the relevance of the Martens clause in the present context²³² (cf. part XIV, infra). Moreover, the 1996 Opinion also minimized (para. 71) the resolutions of the U.N. General Assembly which affirm the illegality of nuclear weapons²³³ and condemn their use as a violation of the U.N. Charter and as a crime against humanity. Instead, it took note of the “policy of deterrence”, which led it to find that the members of the international community continued “profoundly divided” on the matter, rendering it rendered impossible to determine the existence of an opinio juris in this respect (para. 67).

170. It was not incumbent upon the Court to resort to the unfounded strategy of “deterrence” (cf. part XII, supra), devoid of any legal value for the determination of the formation of a customary international law obligation of prohibition of the use of nuclear weapons. The Court did not contribute on this matter. In unduly relying on “deterrence” (para. 73), it singled out a division, in its view “profound”, between an extremely reduced group of nuclear powers on the one hand, and the vast majority of the countries of the world on the other; it ended up by favouring the former, by means of an inadmissible non liquet²³⁴.

171. The Court, thus, lost yet another opportunity, – in the exercise of its advisory function as well, – to contribute to the consolidation of the opinio juris communis in condemnation of nuclear weapons. Its 1996 Advisory Opinion considered the survival of a hypothetical State (in its resolutory point 2E), rather than that of peoples and individuals, and ultimately of humankind as a whole. It seemed to have overlooked that the survival of a State cannot have primacy over the right to survival of humankind as a whole.

3. The Prohibition of Nuclear Weapons: The Fundamental Right to Life

172. There is yet another related point to keep in mind. The ICJ’s 1996 Advisory Opinion erroneously took IHL as lex specialis (para. 25), overstepping the ILHR, oblivious that the maxim lex specialis derogat generalis, thus understood, has no application in the present context: in face of the immense threat of nuclear weapons to human life on earth, both IHL and the ILHR apply in a converging way²³⁵, so as to enhance the much-needed protection of human life. In any circumstances, the norms which best protect are the ones which apply, be them of IHL or of the ILHR, or any other branch of international protection of the human person (such as the International Law of Refugees – ILR). They are all equally important. Regrettably, the 1996 Advisory Opinion unduly minimized the international case-law and the whole doctrinal construction on the right to life in the ambit of the ILHR.

173. It should not pass unnoticed, in this connection, that contemporary international human rights tribunals, such as the European (ECtHR) and the Inter-American (IACtHR) Courts of Human Rights, in the adjudication of successive cases in recent years, have taken into account the relevant principles and norms of both the ILHR and IHL (conventional and customary). For its part, the African Commission of Human and Peoples’ Rights (AfComHPR), in its long-standing practice, has likewise acknowledged the approximations and convergences between the ILHR and IHL, and drawn attention to the principles underlying both branches of protection (such as, e.g., the principle of humanity).

174. This has been done, in distinct continents, so as to seek to secure the most effective safeguard of the protected rights, in all circumstances (including in times of armed conflict). Contrary to what was held in the ICJ’s 1996 Advisory Opinion, there is no lex specialis here, but rather a concerted endeavour to apply the relevant norms (be them of the ILHR or of IHL) that best protect human beings. This is particularly important when they find themselves in a situation of utmost vulnerability, – such as in the present context of threat or use of nuclear weapons. In their case-law, international human rights tribunals (like the ECtHR and the IACtHR) have focused attention on the imperative of securing protection, e.g., to the fundamental right to life, of persons in great vulnerability (potential victims)²³⁶.

175. In the course of the proceedings before the ICJ in the present cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, the applicant State draws attention reiteratedly to the devastating effects upon human life of nuclear weapons detonations. Thus, in the case opposing the Marshall Islands to the United Kingdom, the applicant State draws attention, in its Memorial, to the destructive effects of nuclear weapons (testing) in space and time (pp. 12-14). In its oral arguments of 11.03.2016, the Marshall Islands addresses the “tragic losses to the Marshallese”, the “dire health consequences suffered by the Marshallese following nuclear contamination, including extreme birth defects and cancers”²³⁷.

176. In the case opposing the Marshall Islands to India, the applicant State, in its Memorial, refers to the grave “health and environmental consequences of nuclear testing” upon the Marshallese (pp. 5-6). In its oral arguments of 07.03.2016, the Marshall Islands stated:

The Marshall Islands has a unique and devastating history with nuclear weapons. While it was designated as a Trust Territory by the United Nations, no fewer than 67 atomic and thermonuclear weapons were deliberately exploded as ‘tests’ in the Marshall Islands, by the United States. (...) Several islands in my country were vaporized and others are estimated to remain uninhabitable for thousands of years. Many, many Marshallese died, suffered birth defects never before seen and battled cancers resulting from the contamination. Tragically the Marshall Islands thus bears eyewitness to the horrific and indiscriminate lethal capacity of these weapons, and the intergenerational and continuing effects that they perpetuate even 60 years later.

One ‘test’ in particular, called the ‘Bravo’ test [in March 1954], was one thousand times stronger than the bombs dropped on Hiroshima and Nagasaki²³⁸.

177. And in the case opposing the Marshall Islands to Pakistan, the applicant State, in its Memorial, likewise addresses the serious “health and environmental consequences of nuclear testing” upon the Marshallese (pp. 5-6). In its oral arguments of 08.03.2016, the Marshall Islands recalls the 67 atomic and thermonuclear weapons “tests” that it had to endure (since it became a U.N. Trust Territory); it further recalls the reference, in the U.N. Charter, to nations “large and small” having “equal rights” (preamble), and to the assertion in its Article 2 that the United Nations is “based on the principle of the sovereign equality of all its Members”²³⁹.

178. Two decades earlier, in the course of the advisory proceedings before the ICJ of late 1995 preceding the 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, the devastating effects upon human life of nuclear weapons detonations were likewise brought to the Court’s attention. It is beyond the purposes of the present Dissenting Opinion to review all statements to this effect; suffice it here to recall two of the most moving statements, from the Mayors of Hiroshima and Nagasaki, who appeared before the Court as members of the Delegation of Japan. The Mayor of Hiroshima (Mr. Takashi Hiraoka) thus began his statement of 07.11.1995 before the ICJ:

I am here today representing Hiroshima citizens, who desire the abolition of nuclear weapons. More particularly, I represent the hundreds of thousands of victims whose lives were cut short, and survivors who are still suffering the effects of radiation, 50 years later. On their behalf, I am here to testify to the cruel, inhuman nature of nuclear weapons. (...)

The development of the atomic bomb was the product of cooperation among politicians, military and scientists. The nuclear age began the moment the bombs were dropped on human beings.

Their enormous destructive power reduced utterly innocent civilian populations to ashes. Women, the elderly, and the newborn were bathed in deadly radiation and slaughtered²⁴⁰.

179. After stressing that the mass killing was “utterly indiscriminate”, he added that, even today, “thousands of people struggle daily with the curse of illness caused by that radiation”, there being until then “no truly accurate casualty figures”²⁴¹. The exposure in Hiroshima to high levels of radiation, – he proceeded, – “was the first in human history”, generating leukemia, distinct kinds of cancer (of breast, lung, stomach, thyroid, and other), extending for “years or decades”, with all the fear generated by such continuing killing “across years or decades”²⁴².

180. Even half a century later, – added the Mayor of Hiroshima, – “the effects of radiation on human bodies are not thoroughly understood. Medically, we do know that radiation destroys cells in the human body, which can lead to many forms of pathology”²⁴³. The victimized segments of the population have continued suffering “psychologically, physically, and socially from the atomic bomb’s after-effects”²⁴⁴. He further stated that

The horror of nuclear weapons (. . .) derives (. . .) from the tremendous destructive power, but equally from radiation, the effects of which reach across generations. (. . .) What could be more cruel? Nuclear weapons are more cruel and inhumane than any weapon banned thus far by international law²⁴⁵.

181. After singling out the significance of U.N. General Assembly resolution 1653 (XVI) of 1961, the Mayor of Hiroshima warned that “[t]he stockpiles of nuclear weapons on earth today are enough to annihilate the entire human race several times over. These weapons are possessed on the assumption that they can be used”²⁴⁶. He concluded with a strong criticism of the strategy of “deterrence”; in his own words,

As long as nuclear weapons exist, the human race faces a real and present danger of self-extermination. The idea based on nuclear deterrence that nuclear war can be controlled and won exhibits a failure of human intelligence to comprehend the human tragedy and global environmental destruction brought about by nuclear war. (...) [O]nly through a treaty that clearly stipulates the abolition of nuclear weapons can the world step toward the future (...)²⁴⁷.

182. For his part, the Mayor of Nagasaki (Mr. Iccho Itoh), in his statement before the ICJ, also of 07.11.1995, likewise warned that “nuclear weapons bring enormous, indiscriminate devastation to civilian populations”; thus, five decades ago, in Hiroshima and Nagasaki, “a single aircraft dropped a single bomb and snuffed out the lives of 140.000 and 74.000 people, respectively. And that is not all. Even the people who were lucky enough to survive continue to this day to suffer from the late effects unique to nuclear weapons. In this way, nuclear weapons bring enormous, indiscriminate devastation to civilian populations”²⁴⁸.

183. He added that “the most fundamental difference between nuclear and conventional weapons is that the former release radioactive rays at the time of explosion”, and the exposure to large doses of radiation generates a “high incidence of disease” and mortality (such as leukaemia and cancer). Descendants of atomic bomb survivors will have, amidst anxiety, “to be monitored for several generations to clarify the genetic impact”; “nuclear weapons are inhuman tools for mass slaughter and destruction”, their use “violates international law”²⁴⁹. The Mayor of Nagasaki concluded with a strong criticism of “nuclear deterrence”, characterizing it as “simply the maintenance of a balance of fear” (p. 37), always threatening peace, with its “psychology of suspicion and intimidation”; the Nagasaki survivors of the atomic bombing of 50 years ago, “continue to live in fear of late effects”²⁵⁰.

184. Those testimonies before the ICJ, in the course of contentious proceedings (in 2016) as well as advisory proceedings (two decades earlier, in 1995), leave it quite clear that the threat or use (including “testing”) of nuclear weapons entails an arbitrary deprivation of human life, and is in flagrant breach of the fundamental right to life. It is in manifest breach of the ILHR, of IHL, as well as the Law of the United Nations, and hand an incidence also on the ILR. There are, furthermore, in such grave breach, aggravating circumstances: the harm caused by radiation from nuclear weapons cannot be contained in space, nor can it be contained in time, it is a true inter-generational harm.

185. As pointed out in the pleadings before the ICJ of late 1995, the use of nuclear weapons thus violates the right to life (and the right to health) of “not only people currently living, but also of the unborn, of those to be born, of subsequent generations”²⁵¹. Is there anything quintessentially more cruel? To use nuclear weapons appears like condemning innocent persons to hell on earth, even before they are born. That seems to go even further than the Book of Genesis’s story of the original sin. In reaction to such extreme cruelty, the consciousness of the rights inherent to the human person has always marked a central presence in endeavours towards complete nuclear disarmament.

4. The Absolute Prohibitions of Jus Cogens and the Humanization of International Law

186. The absolute prohibition of arbitrary deprivation of human life (supra) is one of jus cogens, originating in the ILHR, and with an incidence also on IHL and the ILR, and marking presence also in the Law of the United Nations. The absolute prohibition of inflicting cruel, inhuman or degrading treatment is one of jus cogens, originating likewise in the ILHR, and with an incidence also on IHL and the ILR. The absolute prohibition of inflicting unnecessary suffering is one of jus cogens, originating in IHL, and with an incidence also on the ILHR and the ILR.

187. In addition to those converging trends (ILHR, IHL, ILR) of international protection of the rights of the human person, those prohibitions of jus cogens mark presence also in contemporary International Criminal Law (ICL), as well as in the corpus juris gentium of condemnation of all weapons of mass destruction. The absolute prohibitions of jus cogens nowadays encompass the threat or use of nuclear weapons, for all the human suffering they entail: in the case of their use, a suffering without limits in space or in time, and extending to succeeding generations.

188. I have been characterizing, along the years, the doctrinal and jurisprudential construction of international jus cogens as proper of the new jus gentium of our times, the International Law for Humankind. I have been sustaining, moreover, that, by definition, international jus cogens goes beyond the law of treaties, extending itself to the law of the international responsibility of the State, and to the whole corpus juris of contemporary International Law, and reaching, ultimately, any juridical act²⁵².

189. In my lectures in an OAS Course of International Law delivered in Rio de Janeiro almost a decade ago, e.g., I have deemed it fit to ponder that

The fact that the concepts both of the jus cogens, and of the obligations (and rights) erga omnes ensuing therefrom, already integrate the conceptual universe of contemporary international law, the new jus gentium of our days, discloses the reassuring and necessary opening of this latter, in the last decades, to certain superior and fundamental values. This significant evolution of the recognition and assertion of norms of jus cogens and obligations erga omnes of protection is to be fostered, seeking to secure its full practical application, to the benefit of all human beings. In this way the universalist vision of the founding fathers of the droit des gens is being duly rescued. New conceptions of the kind impose themselves in our days, and, of their faithful observance, will depend to a large extent the future evolution of contemporary international law.

This latter does not emanate from the inscrutable ‘will’ of the States, but rather, in my view, from human conscience. General or customary international law emanates not so much from the practice of States (not devoid of ambiguities and contradictions), but rather from the opinio juris communis of all the subjects of international law (States, international organizations, human beings, and humankind as a whole). Above the will stands the conscience. (...)

The current process of the necessary humanization of international law stands in reaction to that state of affairs. It bears in mind the universality and unity of the human kind, which inspired, more than four and a half centuries ago, the historical process of formation of the droit des gens. In rescuing the universalist vision which marked the origins of the most lucid doctrine of international law, the aforementioned process of humanization contributes to the construction of the new jus gentium of the 21st century, oriented by the general principles of law. This process is enhanced by its own conceptual achievements, such as, to start with, the acknowledgement and recognition of jus cogens and the consequent obligations erga omnes of protection, followed by other concepts disclosing likewise a universalist perspective of the law of nations.

(...) The emergence and assertion of jus cogens in contemporary international law fulfill the necessity of a minimum of verticalization in the international legal order, erected upon pillars in which the juridical and the ethical are merged. The evolution of the concept of jus cogens transcends nowadays the ambit of both the law of treaties and the law of the international responsibility of the States, so as to reach general international law and the very foundations of the international legal order”²⁵³.

5. Pitfalls of Legal Positivism: A Rebuttal of the So-Called Lotus “Principle”

190. A matter which concerns the whole of humankind, such as that of the existence of nuclear weapons, can no longer be appropriately dealt with from a purely inter-State outlook of international law, which is wholly surpassed in our days. After all, without humankind there is no State whatsoever; one cannot simply have in mind States, apparently overlooking humankind. In its 1996 Advisory Opinion, the ICJ took note of the treaties which nowadays prohibit, e.g., biological and chemical weapons²⁵⁴, and weapons which cause excessive damages or have indiscriminate effects (para. 76)²⁵⁵.

191. But the fact that nowadays, in 2016, there does not yet exist a similar general treaty, of specific prohibition of nuclear weapons, does not mean that these latter are permissible (in certain circumstances, even in self defence)²⁵⁶. In my understanding, it cannot be sustained, in a matter which concerns the future of humankind, that which is not expressly prohibited is thereby permitted (a classic postulate of positivism). This posture would amount to the traditional – and surpassed – attitude of the laisser-faire, laisser-passer, proper of an international legal order fragmented by State voluntarist subjectivism, which in the history of international law has invariably favoured the most powerful ones. Ubi societas, ibi jus...

192. Legal positivists, together with the so-called “realists” of Realpolitik, have always been sensitive to the established power, rather than to values. They overlook the time dimension, and are incapable to behold a universalist perspective. They are static, in time and space. Nowadays, in the second decade of the XXIst century, in an international legal order which purports to assert common superior values, amidst considerations of international ordre public, and basic considerations of humanity, it is precisely the reverse logic which is to prevail: that which is not permitted, is prohibited²⁵⁷.

193. Even in the days of the Lotus case (1927), the view endorsed by the old PCIJ whereby under international law everything that was not expressly prohibited would thereby be permitted, was object of severe criticisms, not only of a compelling Dissenting Opinion in the case itself²⁵⁸ but also on the part of expert writing of the time²⁵⁹. Such conception could only have flourished in an epoch “politically secure” in global terms, certainly quite different from that of the current nuclear age, in face of the recurrent threat of nuclear weapons and other weapons of mass destruction, the growing vulnerability of territorial States and indeed of the world population, and the increasing complexity in the conduction of international relations. In our days, in face of such terrifying threat, it is the logic opposite to that of the Lotus case which imposes itself: all that is not expressly permitted is surely prohibited²⁶⁰. All weapons of mass destruction, including nuclear weapons, are illegal and prohibited under contemporary international law.

194. The case of Shimoda and Others (District Court of Tokyo, decision of 07.12.1963), with the dismissed claims of five injured survivors of the atomic bombings of Hiroshima and Nagasaki, stands as a grave illustration of the veracity of the maxim summum jus, summa injuria, when one proceeds on the basis of an allegedly absolute submission of the human person to a degenerated international legal order built on an exclusively inter-State basis. May I here reiterate what I wrote in 1981, regarding the Shimoda and Others case, namely,

(...) The whole arguments in the case reflect the insufficiencies of an international legal order being conceived and erected on the basis of an exclusive inter-State system, leaving individual human beings impotent in the absence of express treaty provisions granting them procedural status at international level. Even in such a matter directly affecting fundamental human rights, the arguments were conducted in the case in the classical lines of the conceptual apparatus of the so-called law on diplomatic protection, in a further illustration of international legal reasoning still being haunted by the old Vattelian fiction²⁶¹.

195. There exists nowadays an opinio juris communis as to the illegality of all weapons of mass destruction, including nuclear weapons, and the obligation of nuclear disarmament, under contemporary international law. There is no “gap” concerning nuclear weapons; given the indiscriminate, lasting and indescribable suffering they inflict, they are outlawed, as much as other weapons of mass destruction (biological and chemical weapons) are. The positivist outlook purporting to challenge this prohibition of contemporary general international law has long been surpassed. Nor can this matter be approached from a strictly inter-State outlook, without taking into account the condition of peoples and human beings as subjects of international law.

196. All weapons of mass destruction are illegal under contemporary international law. The threat or use of such weapons is condemned in any circumstances by the universal juridical conscience, which in my view constitutes the ultimate material source of International Law, as of all Law. This is in keeping with the conception of the formation and evolution of International Law which I have been sustaining for many years; it transcends the limitations of legal positivism, seeking to respond effectively to the needs and aspirations of the international community as a whole, and, ultimately, of all humankind.

XIV. Recourse to the “Martens Clause” as an Expression of the Raison d’Humanité.

197. Even if there was a “gap” in the law of nations in relation to nuclear weapons, – which there is not,– it is possible to fill it by resorting to general principles of law. In its 1996 Advisory Opinion, the ICJ preferred to focus on self-defence of a hypothetical individual State, instead of developing the rationale of the Martens clause, the purpose of which is precisely that of filling gaps²⁶² in the light of the principles of the law of nations, the “laws of humanity” and the “dictates of public conscience” (terms of the wise premonition of Fyodor Fyodorovich von Martens²⁶³, originally formulated in the I Hague Peace Conference of 1899).

198. Yet, continuing recourse to the Martens clause, from 1899 to our days, consolidates it as an expression of the strength of human conscience. Its historical trajectory of more than one century has sought to extend protection juridically to human beings in all circumstances (even if not contemplated by conventional norms). Its reiteration for over a century in successive international instruments, besides showing that conventional and customary international law in the domain of protection of the human person go together, reveals the Martens clause as an emanation of the material source par excellence of the whole law of nations (the universal juridical conscience), giving expression to the raison d’humanité and imposing limits to the raison d’État²⁶⁴.

199. It cannot be denied that nuclear weapons are intrinsically indiscriminate, incontrollable, that they cause severe and durable damage and in a wide scale in space and time, that they are prohibited by International Humanitarian Law (Articles 35, 48 and 51 of the Additional Protocol I of 1977 to the 1949 Geneva Conventions on International Humanitarian Law), and are inhuman as weapons of mass destruction²⁶⁵. Early in the present nuclear age, the four Geneva Conventions established the grave violations of international law (Convention I, Article 49(3); Convention II, Article 50(3); Convention III, Article 129(3); and Convention IV, Article 146(3)). Such grave violations, when involving nuclear weapons, victimize not only States, but all other subjects of international law as well, individuals and groups of individuals, peoples, and humankind as a whole.

200. The absence of conventional norms stating specifically that nuclear weapons are prohibited in all circumstances does not mean that they would be allowed in a given circumstance. Two decades ago, in the course of the advisory proceedings of late 1995 before the ICJ leading to its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, some of the participating States drew attention to the incidence of the Martens clause in the present domain²⁶⁶. It was pointed out, on the occasion, that the argument that international instruments do not specifically contain an express prohibition of use of nuclear weapons seems to overlook the Martens clause²⁶⁷.

201. Also in rebuttal of that argument, – typical of legal positivism, in its futile search for an express prohibition, – it was further observed that the “principles of humanity” and the “dictates of public conscience”, evoked by the Martens clause, permeate not only the law of armed conflict, but “the whole of international law”; they are essentially dynamic, pointing to conduct which may nowadays be condemned as inhumane by the international community²⁶⁸, such as recourse to the threat or use of nuclear weapons. It was further stated, in the light of the Martens clause, that the “threat and use of nuclear weapons violate both customary international law and the dictates of public conscience”²⁶⁹.

202. The Martens clause safeguards the integrity of Law (against the undue permissiveness of a non liquet) by invoking the principles of the law of nations, the “laws of humanity” and the “dictates of the public conscience”. Thus, that absence of a conventional norm is not conclusive, and is by no means the end of the matter, – bearing in mind also customary international law. Such absence of a conventional provision expressly prohibiting nuclear weapons does not at all mean that they are legal or legitimate²⁷⁰. The evolution of international law²⁷¹ points, in our days, in my understanding, towards the construction of the International Law for humankind²⁷² and, within the framework of this latter, to the outlawing by general international law of all weapons of mass destruction.

203. Had the ICJ, in its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, made decidedly recourse in great depth to the Martens clause, it would not have lost itself in a sterile exercise, proper of a legal positivism déjà vu, of a hopeless search of conventional norms, frustrated by the finding of what it understood to be a lack of these latter as to nuclear weapons specifically, for the purposes of its analysis. The existing arsenals of nuclear weapons, and of other weapons of mass destruction, are to be characterized by what they really are: a scorn and the ultimate insult to human reason, and an affront to the juridical conscience of humankind.

204. The aforementioned evolution of international law, – of which the Martens clause is a significant manifestation, – has gradually moved from an international into a universal dimension, on the basis of fundamental values, and in the sense of an objective justice²⁷³, which has always been present in jusnaturalist thinking. Human conscience stands above the “will” of individual States. This evolution has, in my perception, significantly contributed to the formation of an opinio juris communis in recent decades, in condemnation of nuclear weapons.

205. This opinio juris communis is clearly conformed in our days: the overwhelming majority of member States of the United Nations, the NNWS, have been sustaining for years the series of General Assembly resolutions in condemnation of the use of nuclear weapons as illegal under general international law. To this we can add other developments, reviewed in the present Dissenting Opinion, such as, e.g., the NPT Review Conferences, the establishment of regional nuclear-weapon-free zones, and the Conferences on Humanitarian Impact of Nuclear Weapons (cf.  parts XVII-XIX, infra).

XV. Nuclear Disarmament: Jusnaturalism, the Humanist Conception and the Universality of International Law

206. The existence of nuclear weapons, – maintained by the strategy of “deterrence” and “mutually assured destruction” (“MAD”, as it became adequately called, since it was devised in the cold-war era), is the contemporary global tragedy of the nuclear age. Death, or self-destruction, haunts everyone everywhere, propelled by human madness. Human beings need protection from themselves, today more than ever²⁷⁴, – and this brings our minds to other domains of human knowledge. Law by itself cannot provide answers to this challenge to humankind as a whole.

207. In the domain of nuclear disarmament, we are faced today, within the conceptual universe of international law, with unexplainable insufficiencies, or anomalies, if not absurdities. For example, there are fortunately in our times Conventions prohibiting biological and chemical weapons (of 1972 and 1993), but there is to date no such comprehensive conventional prohibition of nuclear weapons, which are far more destructive. There is no such prohibition despite the fact that they are in clear breach of international law, of IHL and the ILHR, as well as of the Law of the United Nations.

208. Does this make any sense? Can international law prescind from ethics? In my understanding, not at all. Just as law and ethics go together (in the line of jusnaturalist thinking), scientific knowledge itself cannot be dissociated from ethics. The production of nuclear weapons is an illustration of the divorce between ethical considerations and scientific and technological progress. Otherwise, weapons which can destroy millions of innocent civilians, and the whole of humankind, would not have been conceived and produced.

209. The principles of recta ratio, orienting the lex praeceptiva, emanate from human conscience, affirming the ineluctable relationship between law and ethics. Ethical considerations are to guide the debates on nuclear disarmament. Nuclear weapons, capable of destroying humankind as a whole, carry evil in themselves. They ignore civilian populations, they make abstraction of the principles of necessity, of distinction and of proportionality. They overlook the principle of humanity. They have no respect for the fundamental right to life. They are wholly illegal and illegitimate, rejected by the recta ratio, which endowed jus gentium, in its historical evolution, with ethical foundations, and its character of universality.

210. Already in 1984, in its general comment n. 14 (on the right to life), the U.N. Human Rights Committee (HRC – under the Covenant on Civil and Political Rights), for example, began by warning that war and mass violence continue to be “a scourge of humanity”, taking the lives of thousands of innocent human beings every year (para. 2). In successive sessions of the General Assembly, – it added, – representatives of States from all geographical regions have expressed their growing concern at the development and proliferation of “increasingly awesome weapons of mass destruction” (para. 3). Associating itself with this concern, the HRC stated that

(...) It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today. This threat is compounded by the danger that the actual use of such weapons may be brought about, not only in the event of war, but even through human or mechanical error or failure.

Furthermore, the very existence and gravity of this threat generates a climate of suspicion and fear between States, which is in itself antagonistic to the promotion of universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations and the International Covenants on Human Rights.

The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.

The Committee, accordingly, in the interest of mankind, calls upon all States (...) to take urgent steps (...) to rid the world of this menace (paras. 4-7)²⁷⁵.

211. The absence in contemporary international law of a comprehensive conventional prohibition of nuclear weapons is incomprehensible. Contrary to what legal positivists think, law is not self-sufficient, it needs inputs from other branches of human knowledge for the realisation of justice. Contrary to what legal positivists think, norms and values go together, the former cannot prescind from the latter. Contrary to legal positivism, – may I add, – jusnaturalism, taking into account ethical considerations, pursues a universalist outlook (which legal positivists are incapable of doing), and beholds humankind as entitled to protection²⁷⁶.

212. Humankind is subject of rights, in the realm of the new jus gentium²⁷⁷. As this cannot be visualized from the optics of the State, contemporary international law has reckoned the limits of the State as from the optics of humankind. Natural law thinking has always been attentive to justice, which much transcends positive law. The present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament has been lodged with the International Court of Justice, and not with an International Court of Positive Law. The contemporary tragedy of nuclear weapons cannot be addressed from the myopic outlook of positive law alone.

213. Nuclear weapons, and other weapons of mass destruction, have no ethics, have no ground on the law of nations (le droit des gens): they are in flagrant breach of its fundamental principles, and those of IHL, the ILHR, as well as the Law of the United Nations. They are a contemporary manifestation of evil, in its perennial trajectory going back to the Book of Genesis (cf. part VIII, supra). Jusnaturalist thinking, always open to ethical considerations, identifies and discards the disrupting effects of the strategy of “deterrence” of fear creation and infliction²⁷⁸ (cf. part XII, supra). Humankind is victimized by this.

214. In effect, humankind has been, already for a long time, a potential victim of nuclear weapons. To establish such condition of potential victim, one does not need to wait for the actual destruction of life on earth. Humankind has, for the last decades, been suffering psychological harm caused by the existence itself of arsenals of nuclear weapons. And there are peoples, and segments of populations, who have been actual victims of the vast and harmful effects of nuclear tests. The existence of actual and potential victims is acknowledged in international case-law in the domain of the International Law of Human Rights²⁷⁹. To address this danger from a strict inter-State outlook is to miss the point, to blind oneself. States were created and exist for human beings, and not vice-versa.

215. The NPT has a universalist vocation, and counts on everyone, as shown by its three basic principled pillars together. In effect, as soon as it was adopted, the 1968 NPT came to be seen as having been devised and concluded on the basis of those principled pillars, namely: non-proliferation of nuclear weapons (preamble and Articles I-III), peaceful use of nuclear energy (preamble and Articles IV-V), and nuclear disarmament (preamble and Article VI)²⁸⁰. The antecedents of the NPT go back to the work of the U.N. General Assembly in 1953²⁸¹. The NPT’s three-pillar framework came to be reckoned as the “grand bargain” between its parties, NWS and NNWS. But soon it became a constant point of debate between NWS and NNWS parties to the NPT. In effect, the “grand bargain” came to be seen as “asymmetrical”²⁸², and NNWS began to criticize the very slow pace of achieving nuclear disarmament as one of the three basic principled pillars of the NPT (Article VI)²⁸³.

216. Under the NPT, each State is required to do its due. NWS are no exception to that, if the NPT is not to become dead letter. To achieve the three interrelated goals (non-proliferation of nuclear weapons, peaceful use of nuclear energy, and nuclear disarmament) is a duty of each and every State towards humankind as a whole. It is a universal duty of conventional and customary international law in the nuclear age. There is an opinio juris communis to this effect, sedimented along the recent decades, and evidenced in the successive establishment, in distinct continents, of nuclear-weapon-free zones, and nowadays in the Conferences on the Humanitarian Impact of Nuclear Weapons (cf. parts XVIII-XIX, infra).

XVI. The Principle of Humanity and the Universalist Approach: Jus Necessarium Transcending the Limitations of Jus Voluntarium

217. In my understanding, there is no point in keeping attached to an outdated and reductionist inter-State outlook, particularly in view of the revival of the conception of the law of nations (droit des gens) encompassing humankind as a whole, as foreseen and propounded by the “founding fathers” of international law²⁸⁴ (in the XVIth-XVIIth centuries). It would be nonsensical to try to cling to the unduly reductionist inter-State outlook in the international adjudication of a case concerning the contending parties and affecting all States, all peoples and humankind as a whole.

218. An artificial, if not fossilized, strictly inter-State mechanism of dispute-settlement cannot pretend to entail or require a (likewise) entirely inadequate and groundless inter-State reasoning. The law of nations cannot be interpreted and applied in a mechanical way, as from an exclusively inter-State paradigm. To start with, the humane ends of States cannot be overlooked. In relation to nuclear weapons, the potential victims are the human beings and peoples, beyond their respective States, for whom these latter were created and exist.

219. As I had the occasion to point out in another international jurisdiction, the law of nations (droit des gens), since its historical origins in the XVIth century, was seen as comprising not only States (emerging as they were), but also peoples, the human person (individually and in groups), and humankind as a whole²⁸⁵. The strictly inter-State outlook was devised much later on, as from the Vattelian reductionism of the mid-XVIIIth century, which became en vogue by the end of the XIXth century and beginning of the XXth century, with the well-known disastrous consequences – the successive atrocities victimizing human beings and peoples in distinct regions of world, – along the whole XXth century²⁸⁶. In the present nuclear age, extending for the last seven decades, humankind as a whole is threatened.

220. Within the ICJ as well, I have had also the occasion to stress the need to go beyond the inter-State outlook. Thus, in my Dissenting Opinion in the recent case of the Application of the Convention against Genocide (Croatia versus Serbia, Judgment of 03.02.2015), I have pointed out, inter alia, that the 1948 Convention against Genocide is not State-centric, but is rather oriented towards groups of persons, towards the victims, whom it seeks to protect (paras. 59 and 529). The humanist vision of the international legal order pursues an outlook centred on the peoples, keeping in mind the humane ends of States.

221. I have further underlined that the principle of humanity is deeply-rooted in the long-standing thinking of natural law (para. 69).

Humaneness came to the fore even more forcefully in the treatment of persons in situation of vulnerability, or even defencelessness, such as those deprived of their personal freedom, for whatever reason. The jus gentium, when it emerged as amounting to the law of nations, came then to be conceived by its ‘founding fathers’ (F. de Vitoria, A. Gentili, F. Suárez, H. Grotius, S. Pufendorf, C. Wolff) as regulating the international community constituted by human beings socially organized in the (emerging) States and co-extensive with humankind, thus conforming the necessary law of the societas gentium.

The jus gentium, thus conceived, was inspired by the principle of humanity lato sensu. Human conscience prevails over the will of individual States. Respect for the human person is to the benefit of the common good. This humanist vision of the international legal order pursued – as it does nowadays – a people-centered outlook, keeping in mind the humane ends of the State. The precious legacy of natural law thinking, evoking the right human reason (recta ratio), has never faded away; (paras. 73-74).

The precious legacy of natural law thinking has never vanished; despite the indifference and pragmatism of the “strategic” droit d’étatistes (so numerous in the legal profession nowadays), the principle of humanity emerged and remained in international legal thinking as an expression of the raison d’humanité imposing limits to the raison d’État (para. 74).

222. This is the position I have always taken, within the ICJ and, earlier on, the IACtHR. For example, in the ICJ’s Advisory Opinion on Judgment n. 2867 of the ILO Administrative Tribunal upon a Complaint Filed against IFAD (of 01.02.2012), I devoted one entire part (n. XI) of my Separate Opinion to the erosion – as I perceive it – of the inter-State outlook of adjudication by the ICJ (paras. 76-81). I warned likewise in my Separate Opinion (paras. 21-23) in the case of Whaling in the Antarctic (Australia versus Japan, Order of 06.02.2013, on New Zealand’s intervention), as well as in my recent Separate Opinion (paras. 16-21 and 28-41) in the case of Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua versus Colombia, Preliminary Objections, Judgment of 17.03. 2016).

223. Earlier on, within the IACtHR, I took the same position: for example, inter alia, in my Concurring Opinions in both the Advisory Opinion n. 16, on the Right to Information on Consular Assistance in the Framework of the Due Process of Law (of 01.10.1999), and the Advisory Opinion n. 18, on the Juridical Condition and Rights of Undocumented Migrants (of 17.09.2003), of the IACtHR, I deemed it fit to point out, – going beyond the strict inter-State dimension, – that, if non-compliance with Article 36(1)(b) of the 1963 Vienna Convention on Consular Relations takes place, it occurs to the detriment not only of a State Party but also of the human beings at issue. Such pioneering jurisprudential construction, in the line of jusnaturalist thinking, rested upon the evolving concepts of jus cogens and obligations erga omnes of protection²⁸⁷.

224. Recta ratio stands firmly above the “will”. Human conscience, – the recta ratio so cultivated in jusnaturalism, – clearly prevails over the “will” and the strategies of individual States. It points to a universalist conception of the droit des gens (the lex praeceptiva for the totus orbis), applicable to all (States as well as peoples and individuals), given the unity of the human kind. Legal positivism, centred on State power and “will”, has never been able to develop such universalist outlook, so essential and necessary to address issues of concern to humankind as a whole, such as that of the obligation of nuclear disarmament. The universal juridical conscience prevails over the “will” of individual States.

225. The “founding fathers” of the law of nations (such as, inter alii, F. de Vitoria, F. Suárez and H. Grotius) had in mind humankind as a whole. They conceived a universal jus gentium for the totus orbis, securing the unity of the societas gentium; based on a lex praeceptiva, the jus gentium was apprehended by the recta ratio, and conformed a true jus necessarium, much transcending the limitations of the jus voluntarium. Law ultimately emanates from the common conscience of what is juridically necessary (opinio juris communis necessitatis)²⁸⁸. The contribution of the “founding fathers” of jus gentium found inspiration largely in the scholastic philosophy of natural law (in particular in the stoic and Thomist conception of recta ratio and justice), which recognized the human being as endowed with intrinsic dignity).

226. Moreover, in face of the unity of the human kind, they conceived a truly universal law of nations, applicable to all – States as well as peoples and individuals – everywhere (totus orbis). In thus contributing to the emergence of the jus humanae societatis, thinkers like F. de Vitoria and D. de Soto, among others, permeated their lessons with the humanist thinking that preceded them. Four and a half centuries later, their lessons remain contemporary, endowed with perennial validity and aptitude to face, e.g., the contemporary and dangerous problem of the existing arsenals of nuclear weapons. Those thinkers went well beyond the “will” of States, and rested upon the much safer foundation of human conscience (recta ratio and justice).

227. The conventional and customary obligation of nuclear disarmament brings to the fore another aspect: the issue of the validity of international legal norms is, after all, metajuridical. International law cannot simply remain indifferent to values, general principles of law and ethical considerations; it has, to start with, to identify what is necessary, – such as a world free of nuclear weapons, – in order to secure the survival of humankind. This idée du droit precedes positive international law, and is in line with jusnaturalist thinking.

228. Opinio juris communis necessitatis upholds a customary international law obligation to secure the survival of humankind. Conventional and customary obligations go here together. Just as customary rules may eventually be incorporated into a convention, treaty provisions may likewise eventually enter into the corpus of general international law. Customary obligations can either precede, or come after, conventional obligations. They evolve pari passu. This being so, the search for an express legal prohibition of nuclear weapons (such as the one undertaken in the ICJ’s Advisory Opinion of 1996 on the Threat or Use of Nuclear Weapons) becomes a futile, if not senseless, exercise of legal positivism.

229. It is clear to human conscience that those weapons, which can destroy the whole of humankind, are unlawful and prohibited. They are in clear breach of jus cogens. And jus cogens was reckoned by human conscience well before it was incorporated into the two Vienna Conventions on the Law of Treaties (of 1969 and 1986). As I had the occasion to warn, three decades ago, at the 1986 U.N. Conference on the Law of Treaties between States and International Organizations or between International Organizations, jus cogens is “incompatible with the voluntarist conception of international law, because that conception failed to explain the formation of rules of general international law”²⁸⁹.

XVII. NPT Review Conferences

230. In fact, in the course of the written phase of the proceedings before the Court in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, both the Marshall Islands²⁹⁰ and the United Kingdom²⁹¹ addressed, in their distinct arguments, the series of NPT Review Conferences. For its part, India also addressed the Review Conferences²⁹², in particular to leave on the records its position on the matter, as explained in a statement made on 09.05.2000.

231. Likewise, in the course of the oral phase of the present proceedings before the Court in cas d’espèce, the applicant State, the Marshall Islands, referred to the NPT Review Conferences in its oral arguments in two of the three cases it lodged with the Court against India²⁹³, and the United Kingdom²⁹⁴; references to the Review Conferences were also made, for their part, in their oral arguments, by the two respondent States which participated in the public sittings before the Court, namely, India²⁹⁵ and the United Kingdom²⁹⁶. Those Review Conferences conform the factual context of the cas d’espèce, and cannot pass unnoticed. May I thus proceed to a brief review of them.

232. The NPT Review Conferences, held every five years, started in 1975. The following three Conferences of the kind were held, respectively, in 1980, 1985 and 1990, respectively²⁹⁷. The fifth of such Conferences took place in 1995, the same year that the Marshall Islands became a party to the NPT (on 30.01.1995). In one of its decisions, the 1995 NPT Conference singled out the vital role of the NPT in preventing the proliferation of nuclear weapons, and warned that the proliferation of nuclear weapons would seriously increase the danger of nuclear war²⁹⁸. For their part, NWS reaffirmed their commitment, under Article VI of the NPT, to pursue in good faith negotiations on effective measures relating to nuclear disarmament.

233. The 1995 Review Conference prolonged indefinitely the NPT, and adopted its decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”. Yet, in its report, the Main Committee I (charged with the implementation of the provisions of the NPT) observed with regret that Article VI and preambular paragraphs 8-12 of the NPT had not been wholly fulfilled²⁹⁹, with the number of nuclear weapons then existing being greater than the one existing when the NPT entered into force; it further regretted “the continuing lack of progress” on relevant items of the Conference on Disarmament, and urged a commitment on the part of NWS on “no-first use and non-use of nuclear weapons with immediate effect”³⁰⁰.

234. Between the fifth and the sixth Review Conferences, India and Pakistan carried out nuclear tests in 1998. For its part, on several occasions, the Movement of Non-Aligned Countries called for “urgent” measures of nuclear disarmament³⁰¹. To this effect, the 2000 Review Conference agreed to a document containing the “13 Practical Steps” in order to meet the commitments of States Parties under Article VI of the NPT³⁰². The “13 Practical Steps” stress the relevance and urgency of ratifications of the CTBT so as to achieve its entry into force, and of setting up a moratorium on nuclear-weapon tests pending such entry into force. Furthermore, they call for the commencement of negotiations on a treaty banning the production of fissile material for nuclear weapons and also call upon NWS to accomplish the total elimination of nuclear arsenals³⁰³.

235. At the 2005 Review Conference, no substantive decision was adopted, amidst continuing disappointment at the lack of progress on implementation of Article VI of the NPT, particularly in view of the “13 Practical Steps” agreed to at the 2000 Review Conference. Concerns were expressed that new nuclear weapon systems were being developed, and strategic doctrines were being adopted lowering the threshold for the use of nuclear weapons; moreover, regret was also expressed that States whose ratification was needed for the CTBT’s entry into force had not yet ratified the CTBT³⁰⁴.

236. Between the 2005 and the 2010 Review Conferences, there were warnings that the NPT was “now in danger” and “under strain”, as the process of disarmament had “stagnated” and needed to be “revived” in order to prevent the spread of weapons of mass destruction. The concerns addressed what was regarded as the unsatisfactory stalemate in the Conference on Disarmament in Geneva, which had been “unable to adopt an agenda for almost a decade” to identify substantive issues to be discussed and negotiated in the Conference³⁰⁵.

237. The “Five-Point Proposal on Nuclear Disarmament”, announced by the Secretary-General in an address of 24.10.2008³⁰⁶, began by urging all NPT States Parties, in particular the NWS, to fulfil their obligations under the Treaty “to undertake negotiations on effective measures leading to nuclear disarmament” (para. 1)³⁰⁷. It called upon the permanent members of the Security Council to commence discussions on security issues in the nuclear disarmament process, including by giving NNWS assurances against the use or threat of use of nuclear weapons (para. 5). It stressed the need of “new efforts to bring the CTBT into force”, and encouraged NWS to ratify all the Protocols to the Treaties which established Nuclear-Weapon-Free Zones (para. 6). Moreover, it also stressed “the need for greater transparency” in relation to arsenals of nuclear weapons and disarmament achievements (para. 7). And it further called for the elimination also of other types of weapons of mass destruction (para. 8).

238. The “Five-Point Proposal on Nuclear Disarmament” was reiterated by the U.N. Secretary-General in two subsequent addresses in the following three years³⁰⁸. In one of them, before the Security Council on 24.09.2009, he stressed the need of an “early entry into force” of the CTBT, and pondered that “disarmament and non-proliferation must proceed together”; he urged “a divided international community” to start moving ahead towards achieving “a nuclear-weapon-free world”, and, at last, he expressed his hope in the forthcoming 2010 NPT Review Conference³⁰⁹.

239. Both the 2000 and the 2010 Review Conferences made an interpretation of nuclear disarmament under Article VI of the NPT as a “positive disarmament obligation”, in line with the dictum in the ICJ’s 1996 Advisory Opinion of nuclear disarmament in good faith as an obligation of result³¹⁰. The 2010 Review Conference expressed its deep concern that there remained the continued risk for humankind put by the possibility that nuclear weapons could be used, and the catastrophic humanitarian consequences that would result therefrom.

240.The 2010Review Conference, keeping in mind the 1995 decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament” as well as the 2000 agreement on the “13 Practical Steps”, affirmed the vital importance of the universality of the NPT³¹¹, and, furthermore, took note of the “Five-Point Proposal on Nuclear Disarmament” of the U.N. Secretary-General, of 2008. For the first time in the present series of Review Conferences, the Final Document of the 2010 Review Conference recognized “the catastrophic humanitarian consequences that would result from the use of nuclear weapons”³¹².

241. The Final Document welcomed the creation of successive nuclear-weapon-free zones³¹³, and, in its conclusions, it endorsed the “legitimate interest” of NNWS to receive “unequivocal and legally binding security assurances” from NWS on the matter at issue; it asserted and recognized that “the total elimination of nuclear weapons is the only absolute guarantee against the use or threat of use of nuclear weapons”³¹⁴. The aforementioned Final Document reiterated the 2010 Review Conference’s “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons”, and “the need for all States at all times to comply with applicable international law, including international humanitarian law”³¹⁵. This key message of the 2010 Review Conference triggered the initiative, three years later, of the new series of Conferences on Humanitarian Impact of Nuclear Weapons (cf. infra).

242. The “historic acknowledgement” of “the catastrophic humanitarian consequences of any use of nuclear weapons” was duly singled out by the ICRC, in its statement in the more recent 2015 Review Conference³¹⁶; the ICRC pointed out that that new series of Conferences (2013-2014, in Oslo, Nayarit and Vienna) has given the international community “a much clearer grasp” of the effects of nuclear detonations on peoples around the world. It then warned that, 45 years after the NPT’s entry into force, “there has been little or no concrete progress” in fulfilling the goal of elimination of nuclear weapons. As nuclear weapons remain the only weapons of mass destruction not prohibited by a treaty, “filling this gap is a humanitarian imperative”, as the “immediate risks of intentional or accidental nuclear detonations” are “too high and the dangers too real”³¹⁷.

243. The 2015 Review Conference displayed frustration over the very slow pace of action on nuclear disarmament, in addition to current nuclear modernization programs and reiteration of dangerous nuclear strategies, apparently oblivious of the catastrophic humanitarian consequences of nuclear weapons. At the 2015 Review Conference, the Main Committee I, charged with addressing Article VI of the NPT, stressed the importance of “the ultimate goal” of elimination of nuclear weapons, so as to achieve “general and complete disarmament under effective international control”³¹⁸.

244. The 2015 Review Conference reaffirmed that “the total elimination of nuclear weapons is the only absolute guarantee against the use or threat of use of nuclear weapons, including the risk of their unauthorized, unintentional or accidental detonation”³¹⁹. It expressed its “deep concern” that, during the period 2010-2015, the Conference on Disarmament did not commence negotiations of an instrument on such nuclear disarmament³²⁰, and then stressed the “urgency for the Conference on Disarmament” to achieve “an internationally legally binding instrument” to that effect”, so as “to assure” NNWS against the use or threat of use of nuclear weapons by all NWS³²¹.

245. After welcoming “the increased and positive interaction with civil society” during the cycle of Review Conferences, the most recent 2015 Review Conference stated that

understandings and concerns pertaining to the catastrophic humanitarian consequences of any nuclear weapon detonation underpin and should compel urgent efforts by all States leading to a world without nuclear weapons. The Conference affirms that, pending the realization of this objective, it is in the interest of the very survival of humanity that nuclear weapons never be used again³²².

XVIII. The Establishment of Nuclear-Weapon-Free Zones

246. In addition to the aforementioned NPT Review Conferences, the opinio juris communis on the illegality of nuclear weapons finds expression also in the establishment, along the last half century, of nuclear-weapon-free zones, which has responded to the needs and aspirations of humankind, so as to rid the world of the threat of nuclear weapons. The establishment of those zones has, in effect, given expression to the growing disapproval of nuclear weapons by the international community as a whole. There are, in effect, references to nuclear-weapon-free zones in the arguments, in the written phase of the present proceedings, of the Marshall Islands³²³ and of the United Kingdom³²⁴ in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament.

247. I originally come from the part of the world, Latin America, which, together with the Caribbean, form the first region of the world to have prohibited nuclear weapons, and to have proclaimed itself as a nuclear-weapon-free zone. The pioneering initiative in this domain, of Latin America and the Caribbean³²⁵, resulted in the adoption of the 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean and its two Additional Protocols. Its reach transcended Latin America and the Caribbean, as evidenced by its two Additional Protocols³²⁶, and the obligations set forth in its legal regime were wide in scope:

Le régime consacré dans le Traité n’est pas simplement celui de non-prolifération: c’est un régime d’absence totale d’armes nucléaires, ce qui veut dire que ces armes seront interdites à perpétuité dans les territoires auxquels s’applique le Traité, quel que soit l’État sous le contrôle duquel pourraient se trouver ces terribles instruments de destruction massive³²⁷.

248. By the time of the creation of that first nuclear-weapon- free zone by the 1967 Treaty of Tlatelolco, it was pointed out that it came as a response to humanity’s concern with its own future (given the threat of nuclear weapons), and in particular with “the survival of the humankind”³²⁸. That initiative³²⁹ was followed by four others of the kind, in distinct regions of the world, conducive to the adoption of the 1985 South Pacific (Rarotonga) Nuclear-Free Zone Treaty, the 1995 Southeast Asia (Bangkok) Nuclear-Weapon-Free Zone Treaty, the 1996 African (Pelindaba) Nuclear Weapon-Free Zone Treaty³³⁰, as well as the 2006 Central Asian (Semipalatinsk) Nuclear-Weapon-Free Zone Treaty. Basic considerations of humanity have surely been taken into account for the establishment of those nuclear-weapon-free zones.

249. In fact, besides the Treaty of Tlatelolco, also the Rarotonga, Bangkok, Pelindaba, and Semipalatinsk Treaties purport to extend the obligations enshrined therein, by means of their respective Protocols, not only to the States of the regions at issue, but also to nuclear States³³¹, as well as States which are internationally responsible, de jure or de facto, for territories located in the respective regions. The verification of compliance with the obligations regularly engages the IAEA³³². Each of the five aforementioned treaties (Tlatelolco, Rarotonga, Bangkok, Pelindaba and Semipalatinsk) creating nuclear-weapon-free zones has distinctive features, as to the kinds and extent of obligations and methods of verification³³³, but they share the common ultimate goal of preserving humankind from the threat or use of nuclear weapons.

250. The second nuclear-weapon-free zone, established by the Treaty of Rarotonga (1985), with its three Protocols, came as a response³³⁴ to long-sustained regional aspirations, and increasing frustration of the populations of the countries of the South Pacific with incursions of NWS in the region³³⁵. The Rarotonga Treaty encouraged the negotiation of a similar zone, – by means of the 1995 Bangkok Treaty, – in the neighbouring region of Southeast Asia, and confirmed the “continued relevance of zonal approaches” to the goal of disarmament and the safeguard of humankind from the menace of nuclear weapons³³⁶.

251. The third of those treaties, that of Bangkok, of 1995 (with its Protocol), was prompted by the initiative of the Association of South-East Asian Nations (ASEAN) to insulate the region from the policies and rivalries of the nuclear powers. The Bangkok Treaty, besides covering the land territories of all ten Southeast Asian States, is the first treaty of the kind also to encompass their territorial sea, 200-mile exclusive economic zone and continental shelf³³⁷. The fourth such treaty, that of Pelindaba, of 1996, in its turn, was prompted by the continent’s reaction to nuclear tests in the region (as from the French nuclear tests in the Sahara in 1961), and the aspiration – deeply-rooted in African thinking – to keep nuclear weapons out of the region³³⁸. The Pelindaba Treaty (with its three Protocols) appears to have served the purpose to eradicate nuclear weapons from the African continent.

252. The fifth such treaty, that of Semipalatinsk, of 2006, contains, like the other treaties creating nuclear weapon-free zones (supra), the basic prohibitions to manufacture, acquire, possess, station or control nuclear explosive devices within the zones³³⁹. The five treaties at issue, though containing loopholes (e.g., with regard to the transit of nuclear weapons)³⁴⁰, have as common denominator the practical value of arrangements that transcend the non-proliferation of nuclear weapons³⁴¹.

253. Each of the five treaties (of Tlatelolco, Rarotonga, Bangkok, Pelindaba and Semipalatinsk) reflects the characteristics of each of the five regions, and they all pursue the same cause. The establishment of the nuclear weapon-free zones has been fulfilling the needs and aspirations of peoples living under the fear of nuclear victimization³⁴². Their purpose is being served, also in withholding or containing nuclear ambitions, to the ultimate benefit of humankind as a whole.

254. Nowadays, the five aforementioned nuclear weapon-free zones are firmly established in densely populated areas, covering most (almost all) of the landmass of the southern hemisphere land areas (while excluding most sea areas)³⁴³. The adoption of the 1967 Tlatelolco Treaty, the 1985 Rarotonga Treaty, the 1995 Bangkok Treaty, the 1996 Pelindaba Treaty, and the 2006 Semipalatinsk Treaty, have disclosed the shortcomings and artificiality of the posture of the so-called political “realists”³⁴⁴, which insisted on the suicidal strategy of nuclear “deterrence”, in their characteristic subservience to power politics.

255. The substantial Final Report of 1999 of the U.N. Disarmament Commission underlined the relevance of nuclear-weapon-free zones and of their contribution to the achievement of nuclear disarmament³⁴⁵, “expressing and promoting common values” and constituting “important complementary” instruments to the NPT and the “international regime for the prohibition” of any nuclear-weapon explosions³⁴⁶. Drawing attention to the central role of the United Nations in the field of disarmament³⁴⁷, the aforementioned Report added:

Nuclear-weapon-free zones have ceased to be exceptional in the global strategic environment. To date, 107 States have signed or become parties to treaties establishing existing nuclear-weapon-free zones. With the addition of Antarctica, which was demilitarized pursuant to the Antarctic Treaty, nuclear-weapon-free zones now cover more than 50 per cent of the Earth’s land mass. (…)

The establishment of further nuclear-weapon-free zones reaffirms the commitment of the States that belong to such zones to honour their legal obligations deriving from other international instruments in force in the area of nuclear non-proliferation and disarmament to which they are parties³⁴⁸.

256. Moreover, the 1999 Final Report of the U.N. Disarmament Commission further stated that, for their part, NWS should fully comply with their obligations, under the ratified Protocols to the Treaties of treaties on nuclear-weapon-free zones, “not to use or threaten to use nuclear weapons”³⁴⁹. It went on to encourage member States of those zones “to share experiences” with States of other regions, so as “to establish further nuclear-weapon-free zones”³⁵⁰. It concluded that the international community, by means of “the creation of nuclear-weapon-free zones around the globe”, should aim at “general and complete disarmament under strict and effective international control, so that future generations can live in a more stable and peaceful atmosphere”³⁵¹.

257. To the establishment of aforementioned five nuclear-weapon-free zones other initiatives against nuclear weapons are to be added, such as the prohibitions of placement of nuclear weapons, and other kinds of weapons of mass destruction, in outer space, on the seabed, on the ocean floor and in the subsoil beyond the outer limit of the territorial seabed zone, – “denuclearized” by the Treaties of Antarctica (1959), Outer Space (1967) and the Deep Sea Bed (1971), respectively, to which can be added the Treaty on the Moon and Other Celestial Bodies (1979), established a complete demilitarization thereon³⁵².

258. The fact that the international community counts today on five nuclear-weapon-free zones, in relation to which States that possess nuclear weapons do have a particular responsibility, reveals an undeniable advance of right reason, of the recta ratio in the foundations of contemporary international law. Moreover, the initiative of nuclear-weapon-free zones keeps on clearly gaining ground. In recent years, proposals are being examined for the setting up of new denuclearized zones of the kind³⁵³, as well as of the so-called single-State zone (e.g., Mongolia)³⁵⁴. That initiative further reflects the increasing disapproval, by the international community as a whole, of nuclear weapons, which, in view of their hugely destructive capability, constitute an affront to right reason (recta ratio).

XIX. Conferences on the Humanitarian Impact of Nuclear Weapons (2013-2014)

259. In the course of the proceedings in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, several references were made to the more recent series of Conferences on the Humanitarian Impact of Nuclear Weapons (2013-2014), and in particular to the statement made therein (in the second of those Conferences) by the Marshall Islands, asserting that NWS should fulfill their obligation, “long overdue”, of negotiation to achieve complete nuclear disarmament (cf. infra). The Marshall Islands promptly referred to its own statement in the Nayarit Conference (2014) in its Memorial in the cas d’espèce, as well as in its oral arguments before the ICJ.

260. In effect, the Conferences on the Humanitarian Impact of Nuclear Weapons (a series initiated in 2013) were intended to provide a forum for dialogue on, and a better understanding of, the humanitarian consequences of use of nuclear weapons for human beings, societies, and the environment, rather than a substitute of bilateral and multilateral fora for disarmament negotiations. This forum for dialogue and better understanding of the matter has counted on three Conferences to date, held, respectively, in Oslo in March 2013, in Nayarit in February 2014, and in Vienna in December 2014.

261. This recent series of Conferences has drawn attention to the humanitarian effects of nuclear weapons, restoring the central position of the concern for human beings and peoples. It has thus stressed the importance of the human dimension of the whole matter, and has endeavoured to awaken the conscience of the whole international community as well as to enhance the needed humanitarian coordination in the present domain. May I next proceed to a survey of their work and results so far.

1. First Conference on the Humanitarian Impact of Nuclear Weapons

262. The first Conference on the Humanitarian Impact of Nuclear Weapons took place in Oslo, Norway, on 04-05 March 2013, having counted on the participation of Delegations representing 127 States, United Nations agencies, the International Committee of the Red Cross (ICRC), the Red Cross and the Red Crescent movement, international organizations, and civil society entities. It should not pass unnoticed that only two of the NWS, India and Pakistan, were present at this Conference (and only India made a statement)³⁵⁵. On the other hand, neither the Marshall Islands, nor the permanent members of the U.N. Security Council, attended it.

263. The Oslo Conference addressed three key issues, namely: a) the immediate human impact of a nuclear weapon detonation; b) the wider economic, developmental and environmental consequences of a nuclear weapon detonation; and c) the preparedness of States, international organizations, civil society and the general public to deal with the predictable humanitarian consequences that would follow from a nuclear weapon detonation. A wide range of experts made presentations during the Conference.

264. Attention was drawn, e.g., to the nuclear testing’s impact during the cold-war period, in particular to the detonation of not less than 456 nuclear bombs in the four decades (between 1949 and 1989) in the testing ground of Semipalatinsk, in eastern Kazakhstan. It was reported (by UNDP) that, according to the Kazakh authorities, up to 1.5 million people were affected by fall-out from the blasts at Semipalatinsk; the nuclear test site was shut down in mid-1991. Other aspects were examined, all from a humanitarian outlook³⁵⁶. References were made, e.g., to General Assembly resolutions (such as resolution 63/279, of 25.04.2009), on humanitarian rehabilitation of the region. Such a humanitarian approach proved necessary, as the “historical experience from the use and testing of nuclear weapons has demonstrated their devastating immediate and long-term effects”³⁵⁷.

265. The key conclusions of the Oslo Conference, as highlighted by Norway’s Minister of Foreign Affairs in his closing statement³⁵⁸, can be summarized as follows. First, it is unlikely that any state or international body (such as U.N. relief agencies and the ICRC) could address the immediate humanitarian emergency caused by a nuclear weapon detonation in an adequate manner and provide sufficient assistance to those affected. Thus, the ICRC called for the abolition of nuclear weapons as the only effective preventive measure, and several participating States stressed that elimination of nuclear weapons is the only way to prevent their use; some States called for a ban on those weapons.

266. Secondly, the historical experience from the use and testing of nuclear weapons has demonstrated their devastating immediate and long-term effects. While the international scenario and circumstances surrounding it have changed, the destructive potential of nuclear weapons remains. And thirdly, the effects of a nuclear weapon detonation, irrespective of its cause, will not be constrained by national borders, and will affect States and peoples in significant ways, in a trans-frontier dimension, regionally as well as globally.

2. Second Conference on the Humanitarian Impact of Nuclear Weapons

267. The second Conference on the Humanitarian Impact of Nuclear Weapons took place in Nayarit, Mexico, on 13-14 February 2014, having counted on the participation of Delegations representing 146 States. The Marshall Islands, India and Pakistan attended it, whereas the United Kingdom did not. In addition to States, other participants included the ICRC, the Red Cross and the Red Crescent movement, international organizations, and civil society entities. During the Nayarit Conference, the Delegate of the Marshall Islands stated that NWS States were failing to fulfill their obligations, under Article VI of the NPT and customary international law, to commence and conclude multilateral negotiations on nuclear disarmament; in his words:

the Marshall Islands is convinced that multilateral negotiations on achieving and sustaining a world free of nuclear weapons are long overdue. Indeed we believe that states possessing nuclear arsenals are failing to fulfill their legal obligations in this regard. Immediate commencement and conclusion of such negotiations is required by legal obligation of nuclear disarmament resting upon each and every state under Article VI of the Non-Proliferation Treaty and customary international law. It also would achieve the objective of nuclear disarmament long and consistently set by the United Nations, and fulfill our responsibilities to present and future generations while honouring the past ones³⁵⁹.

268. Earlier on, the Minister of Foreign Affairs of the Marshall Islands stated, at the U.N. High-Level Meeting on Nuclear Disarmament, on 26.09.2013, that the Marshall Islands “has a unique and compelling reason” to urge nuclear disarmament, namely,

The Marshall Islands, during its time as a UN Trust Territory, experienced 67 large-scale tests of nuclear weapons. At the time of testing, and at every possible occasion in the intervening years, the Marshall Islands has informed UN members of the devastating impacts of these tests – of the deliberate use of our people as unwilling scientific experiments, of ongoing health impacts inherited through generations, of our displaced populations who still live in exile or who were resettled under unsafe circumstances, and then had to be removed. Even today, science remains a moving target and our exiled local communities are still struggling with resettlement.

(...) Perhaps we [the Marshallese] have one of the most important stories to tell regarding the need to avert the use of nuclear weapons, and a compelling story to spur greater efforts for nuclear disarmament (pp. 1-2)³⁶⁰.

269. The Marshall Islands’ statement in the 2014 Nayarit Conference was thus one of a few statements in which the Marshall Islands has articulated its claim, whereon they rely in the cas d’espèce, inter alia, to substantiate the existence of a dispute, including with the United Kingdom, which was not present at the Conference³⁶¹. The Nayarit Conference participants also heard the poignant testimonies of five Hibakusha, – survivors of the atomic bombings of Hiroshima and Nagasaki, – who presented their accounts of the overwhelming devastation inflicted on those cities and their inhabitants by the atomic blasts (including the victims’ burning alive, and carbonized or vaporized, as well as the long-term effects of radiation, killing survivors along seven decades).

270. They stressed the “moral imperative” of abolition of nuclear weapons, as humanity and nuclear weapons cannot coexist. A group of Delegations of no less than 20 States called expressly for a ban of nuclear weapons, already long overdue; this was the sword of Damocles hanging over everyone’s heads. The “mere existence” of nuclear weapons was regarded as “absurd”; attention was also drawn to the 2013 U.N. General Assembly High-Level Meeting on Disarmament, and to the obligations under international law, including those deriving from the NPT as well as common Article 1 of the Geneva Conventions on IHL³⁶².

271. Furthermore, an association of over 60 entities of the civil society, from more than 50 countries, stated³⁶³ that their own engagement was essential, as responsibilities fell on everyone to prevent the use of nuclear weapons; and prevention required the prohibition and ban of nuclear weapons, in the same way as those of biological and chemical weapons, landmines, and cluster munitions. Both the association, and the Hibakusha, condemned the dangerous strategy of nuclear “deterrence”.

272. The 2014 Nayarit Conference’s conclusions, building on the conclusions of the previous Oslo Conference, can be summarized as follows. First, the immediate and long-term effects of a single nuclear weapon detonation, let alone a nuclear exchange, would be catastrophic. The mere existence of nuclear weapons generates great risks, because the military doctrines of the NWS envisage preparations for the deliberate use of nuclear weapons. Nuclear weapons could be detonated by accident, miscalculation, or deliberately.

273. Delegations of over 50 States from every region of the world made statements unequivocally calling for the total elimination of nuclear weapons and the achievement of a world free of nuclear weapons. At least 20 Delegations of participating States in the Conference (supra) expressed the view that the way forward would be a ban on nuclear weapons. Others were equally clear in their calls for a Convention on the elimination of nuclear weapons or a new legally binding instrument³⁶⁴.

274. Secondly, some Delegations pointed out the security implications of nuclear weapons, or else expressed skepticism about the possibility of banning nuclear weapons as such. There were those which favoured a “step-by-step” approach to nuclear disarmament (within the framework of the NPT Action Plan), and called for the participation of NWS in this process. For their part, the nuclear-weapon-free States, in their majority, were however of the view that the step-by-step approach had failed to achieve its goal; they thus called for a new approach to nuclear disarmament.

275. Thirdly, for the Chairman of the Conference, a ban on nuclear weapons would be the first step towards their elimination; such a ban would also rectify the anomaly that nuclear weapons are the only weapons of mass destruction that are not subject to an explicit legal prohibition. He added that achieving a world free of nuclear weapons is consistent with States’ obligations under international law, including under the NPT and common Article 1 to the Geneva Conventions on IHL. He at last called for the development of new international standards on nuclear weapons, including a legally binding instrument, to be concluded by the 70th anniversary of the atomic bombings of Hiroshima and Nagasaki³⁶⁵.

3. Third Conference on the Humanitarian Impact of Nuclear Weapons

276. The third Conference on the Humanitarian Impact of Nuclear Weapons took place in Vienna, Austria, on 08-09 December 2014, having carried forward the momentum created by the previous Conference in Mexico. It counted on the participation of Delegations of 158 States, as well as the U.N., the ICRC, the Red Cross and Red Crescent movement, civil society entities and representatives of the academic world. For the first time, of the NWS, the United Kingdom attended the Conference; Delegates from India, Pakistan, and the Marshall Islands were present as well.

277. Once again, the Conference participants heard the testimonies of survivors, the Hibakusha. Speaking of the “hell on earth” experienced in Hiroshima and Nagasaki; the “indiscriminate massacre of the atomic bombing” showed “the illegality and ultimate evil of nuclear weapons”³⁶⁶. In its statement, the Marshall Islands, addressing the testing in the region of 67 atomic and hydrogen bombs, between 1946 and 1958, — the strongest one having been the Bravo test (of 01.03.1954) of a hydrogen bomb, 1000 times more powerful than the atomic bomb dropped over Hiroshima, – referred to their harmful impacts, such as the birth of “monster-like babies”, the continuous suffering from “thyroid cancer, liver cancer and all types of radiogenic cancerous illnesses”, extending over the years³⁶⁷.

278. For its part, the ICRC stated that nuclear weapons ignore the principle of proportionality, and stand in breach of IHL (both conventional and customary) by causing unnecessary suffering to civilians; it expressed “significant concerns about the eventual spread of radiation to civilian areas and the radiological contamination of the environment” and everyone³⁶⁸. The ICRC further observed that, after “decades of focusing on nuclear weapons primarily in technical-military terms and as symbols of power”, a fundamental and reassuring change has occurred, as debates on the matter now shift attention to what those weapons “would mean for people and the environment, indeed for humanity”³⁶⁹.

279. The U.N. Secretary-General (Ban Ki-moon) sent a statement, read at the Conference, wherein he condemned expenditures in the modernization of weapons of mass destruction (instead of meeting the challenges of poverty and climate change). Recalling that the obligation of nuclear disarmament was one of both conventional and customary international law, he further condemned the strategy of nuclear “deterrence”; in his own words,

Upholding doctrines of nuclear deterrence does not counter proliferation, but it makes the weapons more desirable. Growing ranks of nuclear-armed States does not ensure global stability, but instead undermines it. (...) The more we understand about the humanitarian impacts, the more it becomes clear that we must pursue disarmament as an urgent imperative³⁷⁰.

280. The Vienna Conference contributed to a deeper understanding of the consequences and risks of a nuclear detonation, having focused to a larger extent on the legal framework (and gaps therein) with regard to nuclear weapons³⁷¹. It was reckoned that the impact of nuclear weapons detonation, irrespective of the cause, would go well beyond national borders, and could have regional and even global consequences, causing destruction, death, diseases and displacement on a very large scale, as well as profound and long-term damage to the environment, climate, human health and well-being, socioeconomic development and social order. They could, in sum, threaten the very survival of humankind. It was acknowledged that the scope, scale and interrelationship of the humanitarian consequences caused by nuclear weapon detonation are catastrophic, and more complex than commonly understood; these consequences can be large scale and potentially irreversible.

281. States expressed various views regarding the ways and means of advancing the nuclear disarmament agenda. The Delegations of 29 States called for negotiations of a legally-binding instrument to prohibit or ban nuclear weapons. A number of Delegations considered that the inability to make progress on any particular step was no reason not to pursue negotiations in good faith on other effective measures to achieve and maintain a nuclear-weapon-free world. Such steps have been taken very effectively in regional contexts in the past, as evidenced by nuclear-weapon-free zones.

282. As the general report of the Vienna Conference observed, the three Conferences on the Humanitarian Impact of Nuclear Weapons (of Oslo, Nayarit and then Vienna), have contributed to a “deeper understanding” of the “actual risks” posed by nuclear weapons, and the “unspeakable suffering”, devastating effects, and “catastrophic humanitarian consequences” caused by their use. As “nuclear deterrence entails preparing for nuclear war, the risk of nuclear weapon use is real. (...) The only assurance against the risk of a nuclear weapon detonation is the total elimination of nuclear weapons”, in “the interest of the very survival of humanity”; hence the importance of Article VI of the NPT, and of the entry into force of the CTBT³⁷².

283. The 2014 Vienna Conference’s conclusions can be summarized as follows. First, the use and testing of nuclear weapons have demonstrated their devastating immediate, mid- and long-term effects. Nuclear testing in several parts of the world has left a legacy of serious health and environmental consequences. Radioactive contamination from these tests disproportionately affects women and children. It contaminated food supplies and continues to be measurable in the atmosphere to this day.

284. Secondly, as long as nuclear weapons exist, there remains the possibility of a nuclear weapon explosion. The risks of accidental, mistaken, unauthorized or intentional use of nuclear weapons are evident due to the vulnerability of nuclear command and control networks to human error and cyber-attacks, the maintaining of nuclear arsenals on high levels of alert, forward deployment and their modernization. The dangers of access to nuclear weapons and related materials by non-state actors, particularly terrorist groups, persist. All such risks, which increase over time, are unacceptable.

285. Thirdly, as nuclear deterrence entails preparing for nuclear war, the risk of the use of nuclear weapons is real. Opportunities to reduce this risk must be taken now, such as de-alerting and reducing the role of nuclear weapons in security doctrines. Limiting the role of nuclear weapons to deterrence does not remove the possibility of their use, nor does it address the risks stemming from accidental use. The only assurance against the risk of a nuclear weapon detonation is the total elimination of nuclear weapons.

286. Fourthly, the existence itself of nuclear weapons raises serious ethical questions, – well beyond legal discussions and interpretations, – which should be kept in mind. Several Delegations asserted that, in the interest of the survival of humankind, nuclear weapons must never be used again, under any circumstances. Fifthly, no State or international organ could adequately address the immediate humanitarian emergency or long-term consequences caused by a nuclear weapon detonation in a populated area, nor provide adequate assistance to those affected. The imperative of prevention as the only guarantee against the humanitarian consequences of nuclear weapons use is thus to be highlighted. Sixthly, participating Delegations reiterated the importance of the entry into force of the CTBT as a key element of the international nuclear disarmament and non-proliferation regime.

287. Seventhly, it is clear that there is no comprehensive legal norm universally prohibiting the possession, transfer, production and use of nuclear weapons, that is, international law does not address today nuclear weapons in the way it addresses biological and chemical weapons. This is generally regarded as an anomaly – or rather, a nonsense, – as nuclear weapons are far more destructive. In any case, international environmental law remains applicable in armed conflict and can pertain to nuclear weapons, even if not specifically regulating these latter. Likewise, international health regulations would cover effects of nuclear weapons. In the light of the new evidence produced in those two years (2013-2014) about the humanitarian impact of nuclear weapons, it is very doubtful whether such weapons could ever be used in conformity with IHL.

4. Aftermath: The “Humanitarian Pledge”

288. At the 2014 Vienna Conference, although a handful of States expressed scepticism about the effectiveness of a ban on nuclear weapons, the overwhelming majority of NPT States Parties expected the forthcoming 2015 NPT Review Conference to take stock of all relevant developments, including the outcomes of the Conferences on the Humanitarian Impact of Nuclear Weapons (supra), and determine the next steps for the achievement and maintenance of a nuclear-weapon-free world. At the end of the Vienna Conference, the host State, Austria, presented a “Pledge” calling upon States parties to the NPT to renew their commitment to the urgent and full implementation of existing obligations under Article VI, and to this end, to identify and pursue effective measures to fill the legal gap for the prohibition and elimination of nuclear weapons³⁷³.

289. The Pledge further called upon NWS to take concrete interim measures to reduce the risk of nuclear weapons detonations, including by diminishing the role of nuclear weapons in military doctrines. The Pledge also recognised that: a) the rights and needs of the victims of nuclear weapon use and testing have not yet been adequately addressed; b) all States share the responsibility to prevent any use of nuclear weapons; and c) the consequences of nuclear weapons use raise profound moral and ethical questions going beyond debates about the legality of these weapons.

290. Shortly before the Vienna Conference, 66 States had already endorsed the Pledge; by the end of the Conference, 107 States had endorsed it, thus “internationalizing” it and naming it at the end as the “Humanitarian Pledge”³⁷⁴. On 07.12. 2015, the U.N. General Assembly adopted the substance of the Humanitarian Pledge in the form of its resolution 70/48. As of April 2016, 127 States have formally endorsed the Humanitarian Pledge; unsurprisingly, none of the NWS has done so.

291. Recent endeavours, such as the ones just reviewed of the Conferences on the Humanitarian Impact of Nuclear Weapons have been rightly drawing attention to the grave humanitarian consequences of nuclear weapons detonations. The reframing of the whole matter in a people-centred outlook appears to me particularly lucid, and necessary, keeping in mind the unfoundedness of the strategy of “deterrence” and the catastrophic consequences of the use of nuclear weapons. The “step-by-step” approach, pursued by the NWS in respect to the obligation under Article VI of the NPT, appears essentially State-centric, having led to an apparent standstill or deadlock.

292. The obligation of nuclear disarmament being one of result, the “step-by-step” approach cannot be extended indefinitely in time, with its insistence on the maintenance of the nuclear sword of Damocles. The “step-by-step” approach has produced no significantly concrete results to date, seeming to make abstraction of the numerous pronouncements of the United Nations upholding the obligation of nuclear disarmament (cf. supra). After all, the absolute prohibition of nuclear weapons, – which is multifaceted³⁷⁵, is one of jus cogens (cf. supra). Such weapons, as the Conferences on the Humanitarian Impact of Nuclear Weapons have evidenced, are essentially inhumane, rendering the strategy of “deterrence” unfounded and unsustainable (cf. supra).

293. Ever since those Conferences (2013-2014), there has been a tendency (in 2014-2016) of slight reduction of nuclear warheads³⁷⁶, though NWS have kept on modernizing their respective nuclear armament programs, in an indication that nuclear weapons are likely to remain in the foreseeable future³⁷⁷. Yet, the growing awareness of the humanitarian impact of nuclear weapons has raised the question of the possibility of developing “a deontological position according to which the uniquely inhumane suffering that nuclear weapons inflict on their victims makes it inherently wrongful to use them”³⁷⁸.

294. Tempus fugit. There remains a long way to go to achieve a nuclear-weapon-free world. The United Nations itself has been drawing attention to the urgency of nuclear disarmament. It has done so time and time again, and, quite recently, in the convocation in October 2015, of a new Open-Ended Working Group (OEWG), as a subsidiary body of the U.N. General Assembly, to address concrete and effective legal measures to attain and maintain a world without nuclear weapons³⁷⁹. It draws attention therein to the importance of multilateralism, to the relevance of “inclusiveness” (participation of all U.N. member States) and of the contribution, in addition to that of States, also of international organizations, of entities of the civil society, and of the academia³⁸⁰. And it reaffirms “the urgency of securing substantive progress in multilateral nuclear disarmament negotiations”, in order “to attain and maintain a world without nuclear weapons”³⁸¹.

295. It should not pass unnoticed that all the initiatives that I have just reviewed in the present Dissenting Opinion (NPT Review Conferences, the establishment of nuclear-weapon-free zones, and the Conferences on Humanitarian Impact of Nuclear Weapons), referred to by the contending parties in the course of the proceedings before the ICJ in the present case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, have gone beyond the inter-State outlook. In my perception, there is great need, in the present domain, to keep on looking beyond States, so as to behold peoples’ and humankind’s quest for survival in our times.

XX. Final Considerations: Opinio Juris Communis Emanating from Conscience (Recta Ratio), Well Above the “Will”

296. Nuclear weapons, as from their conception, have been associated with overwhelming destruction. It may be recalled that the first atomic bombs were fabricated in an epoch of destruction and devastation, – the II world war, – of the abominable “total war”, in flagrant breach of IHL and of the ILHR³⁸². The fabrication of nuclear weapons, followed by their use, made abstraction of the fundamental principles of international law, moving the world into lawlessness in the current nuclear age. The strategy of “deterrence”, in a “dialectics of suspicion”, leads to an unforeseeable outcome, amidst complete destruction. Hence the utmost importance of negotiations conducive to general disarmament, which, – as warned by Raymond Aron [already] in the early sixties, – had “never been taken seriously” by the super-powers³⁸³.

297. Last but not least, may I come back to a key point which I have dwelt upon in the present Dissenting Opinion pertaining to the opinio juris communis as to the obligation of nuclear disarmament (cf. part XVI, supra). In the evolving law of nations, basic considerations of humanity have an important role to play. Such considerations nourish opinio juris on matters going well beyond the interests of individual States. The ICJ has, on more than one occasion, taken into account resolutions of the United Nations (in distinct contexts) as a means whereby international law manifests itself.

298. In its célèbre Advisory Opinion (of 21.06.1971) on Namibia, for example, the ICJ dwelt upon, in particular, two U.N. General Assembly resolutions relevant to the formation of opinio juris³⁸⁴. Likewise, in its Advisory Opinion (of 16.10.1975) on the Western Sahara, the ICJ considered and discussed in detail some U.N. General Assembly resolutions³⁸⁵. In this respect, references can further be made to the ICJ’s Advisory Opinions on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (of 09.07.2004)³⁸⁶, and on the Declaration of Independence of Kosovo (of 22.07.2010)³⁸⁷. In its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, the ICJ admitted, – even if in a rather restrictive way, – the emergence and gradual evolution of an opinio juris as reflected in a series of resolutions of the U.N. General Assembly (para. 70). But the ICJ could have gone (much) further than that.

299. After all, opinio juris has already had a long trajectory in legal thinking, being today endowed with a wide dimension. Thus, already in the XIXth century, the so-called “historical school” of legal thinking and jurisprudence (of F. K. von Savigny and G. F. Puchta) in reaction to the voluntarist conception, gradually discarded the “will” of the States by shifting attention to opinio juris, requiring practice to be an authentic expression of the “juridical conscience” of nations and peoples. With the passing of time, the acknowledgment of conscience standing above the “will” developed further, as a reaction against the reluctance of some States to abide by norms addressing matters of general or common interest of the international community.

300. This had an influence on the formation of rules of customary international law, a much wider process than the application of one of its formal “sources”. Opinio juris communis came thus to assume “a considerably broader dimension than that of the subjective element constitutive of custom”³⁸⁸. Opinio juris became a key element in the formation itself of international law, a law of conscience. This diminished the unilateral influence of the most powerful States, fostering international law-making in fulfilment of the public interest and in pursuance of the common good of the international community as a whole.

301. The foundations of the international legal order came to be reckoned as independent from, and transcending, the “will” of individual States; opinio juris communis came to give expression to the “juridical conscience”, no longer only of nations and peoples – sustained in the past by the “historical school” – but of the international community as a whole, heading towards the universalization of international law. It is, in my perception, this international law of conscience that turns in particular towards nuclear disarmament, for the sake of the survival of humankind.

302. In 1983, Wang Tieya wrote against minimizing the legal significance of resolutions of General Assembly, in particular the declaratory ones. As they clarify principles and rules of international law, he contended that they “cannot be said to have no law-making effect at all merely because they are not binding in the strict sense. At the very least, since they embody the convictions of a majority of States, General Assembly resolutions can indicate the general direction in which international law is developing”³⁸⁹. He added that those General Assembly resolutions, reflecting the position of “an overwhelming majority of States”, have “accelerated the development of international law”, in helping to crystallize emerging rules into “clearly defined norms”³⁹⁰. In the same decade, it was further pointed out that General Assembly resolutions have been giving expression, along the years, to “basic concepts of equity and justice, or of the underlining spirit and aims” of the United Nations³⁹¹.

303. Still in the eighties, in the course I delivered at the Institute of Public International Law and International Relations of Thessaloniki, in 1988, I began by pondering that customary and conventional international law are interrelated, – as acknowledged by the ICJ itself³⁹² – and U.N. General Assembly resolutions contribute to the emergence of opinio juris communis³⁹³. I stood against the “strictly voluntarist position” underlying the unacceptable concept of so-called “persistent objector”, and added that dissent from “one or another State individually cannot prevent the creation of new customary rules” or obligations, ensuing from opinio juris communis and not from voluntas³⁹⁴.

304. In the evolution of international law in time, – I proceeded, – voluntarist positivism has shown itself “entirely incapable” of explaining the consensual formation of customary international obligations; contrary to “the pretensions of positivist voluntarism” (with its stubborn emphasis on the consent of individual States), “freedom of spirit is the first to rebel” against immobilism, in devising responses to new challenges affecting the international community as a whole, and acknowledging obligations incumbent upon all States³⁹⁵.

305. In my “repudiation of voluntarist positivism”, I concluded on this point that the attention to customary international law (“incomparably less vulnerable” than conventional international law to voluntarist temptations) is in line with the progressive development (moved by conscience) of international law, so as to provide a common basis for the fulfilment of the needs and aspirations of all peoples³⁹⁶. Today, almost three decades later, I firmly restate, in the present Dissenting Opinion, my own position on the matter, in respect of the customary and conventional international obligation to put an end to nuclear weapons, so as to rid the world of their inhuman threat.

306. May I here, furthermore, ponder that U.N. General Assembly or Security Council resolutions are adopted on behalf not of the States which voted in favour of them, but more precisely on behalf of the United Nations Organization itself (its respective organs), being thus valid for all U.N. member States. This applies to the resolutions surveyed in the present Dissenting Opinion. It should be kept in mind that the U.N. is endowed with an international legal personality of its own, which enables it to act at international level as a distinct entity, independently of individual member States; in this way, it upholds the juridical equality of all States, and mitigates the worrisome vulnerability of factually weaker States, such as the NNWS; in doing so, it aims – by multilateralism – at the common good, at the realization of common goals of the international community as a whole³⁹⁷, such as nuclear disarmament.

307. A small group of States – such as the NWS – cannot overlook or minimize those reiterated resolutions, extended in time, simply because they voted against them, or abstained. Once adopted, they are valid for all U.N. member States. They are resolutions of the United Nations Organization itself, and not only of the large majority of U.N. member States which voted in favour of them. U.N. General Assembly resolutions, reiteratedly addressing matters of concern to humankind as a whole (such as existing nuclear weapons), are in my view endowed with normative value. They cannot be properly considered from a State voluntarist perspective; they call for another approach, away from the strict voluntarist-positivist one.

308. Conscience stands above the “will”. The universal juridical conscience stands well above the “will” of individual States, and resonates in resolutions of the U.N. General Assembly, which find inspiration in general principles of international law, which, for their part, give expression to values and aspirations of the international community as a whole, of all humankind³⁹⁸. This – may I reiterate – is the case of General Assembly resolutions surveyed in the present Dissenting Opinion (cf. supra). The values which find expression in those prima principia inspire every legal order and, ultimately, lie in the foundations of this latter.

309. The general principles of law (prima principia), in my perception, confer upon the (national and international) legal order its ineluctable axiological dimension. Notwithstanding, legal positivism and political “realism”, in their characteristic subservience to power, incur into their basic mistake of minimizing those principles, which lie in the foundations of any legal system, and which inform and conform the norms and the action pursuant to them, in the search for the realization of justice. Whenever that minimization of principles has prevailed the consequences have been disastrous³⁹⁹.

310. They have been contributing, in the last decades, to a vast corpus juris on matters of concern to the international community as a whole, such as nuclear disarmament. Their contribution to this effect has overcome the traditional inter-State paradigm of the international legal order⁴⁰⁰. This can no longer be overlooked in our days. The inter-State mechanism of the contentieux before the ICJ cannot be invoked in justification for an inter-State reasoning. As “the principal judicial organ” of the United Nations (U.N. Charter, Article 92), the ICJ has to bear in mind not only States, but also “we, the peoples”, on whose behalf the U.N. Charter was adopted. In its international adjudication of contentious cases, like the present one of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, the ICJ has to bear in mind basic considerations of humanity, with their incidence on questions of admissibility and jurisdiction, as well as of substantive law.

XXI. Epilogue: A Recapitulation

311. Coming to the end of the present Dissenting Opinion, I feel in peace with my conscience: from all the preceding considerations, I trust to have made it crystal clear that my own position, in respect of all the points which form the object of the present Judgment on the case of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, stands in clear and entire opposition to the view espoused by the Court’s split majority that the existence of a legal dispute has not been established before it, and that the Court has no jurisdiction to consider the Application lodged with it by the Marshall Islands, and cannot thus proceed to the merits of the case. Not at all: in my understanding, there is a dispute before the Court, which has jurisdiction to decide the case. There is a conventional and customary international law obligation of nuclear disarmament. Whether there has been a concrete breach of this obligation, the Court could only decide on the merits phase of the present case.

312. My dissenting position is grounded not only on the assessment of the arguments produced before the Court by the contending parties, but above all on issues of principle and on fundamental values, to which I attach even greater importance. As my dissenting position covers all points addressed in the present Judgment, in its reasoning as well as in its conclusion, I have thus felt obliged, in the faithful exercise of the international judicial function, to lay on the records, in the present Dissenting Opinion, the foundations of my dissenting position thereon. I deem it fit, at this last stage, to recapitulate all the points of my dissenting position, expressed herein, for the sake of clarity, and in order to stress their interrelatedness.

313. Primus: According to the jurisprudence constante of the Court, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests; The existence of an international dispute (at the time of lodging a claim) is a matter for the objective determination of the Court. The existence of a dispute may be inferred. Secundus: The objective determination of a dispute by the Court is not intended to protect respondent States, but rather and more precisely to secure the proper exercise of the Court’s judicial function. Tertius: There is no requirement of prior notice of the applicant State’s intention to initiate proceedings before the ICJ, nor of prior “exhaustion” of diplomatic negotiations, nor of prior notification of the claim; it is, in sum, a matter for objective determination of the Court itself.

314. Quartus: The Marshall Islands and the United Kingdom/India/Pakistan have pursued distinct arguments and courses of conduct on the matter at issue, evidencing their distinct legal positions, which suffice for the Court’s objective determination of the existence of a dispute. Quintus: There is no legal ground for attempting to heighten the threshold for the determination of the existence of a dispute; in its jurisprudence constante, the Court has expressly avoided a formalistic approach on this issue, which would affect access to justice itself. The Court has, instead, in its jurisprudence constante, upheld its own objective determination of the existence of a dispute, rather than relying– as it does in the present case – on the subjective criterion of “awareness” of the respondent States.

315. Sextus: The distinct series of U.N. General Assembly resolutions on nuclear disarmament along the years (namely, warning against nuclear weapons, 1961-1981; on freeze of nuclear weapons, 1982-1992; condemning nuclear weapons, 1982 2015; following-up the ICJ’s 1996 Advisory Opinion, 1996-2015) are endowed with authority and legal value. Septimus: Their authority and legal value have been duly acknowledged before the ICJ in its advisory proceedings in 1995. Octavus: Like the General Assembly, the Security Council has also expressed its concern on the matter at issue, in its work and its resolutions on nuclear disarmament.

316. Nonus: The aforementioned United Nations resolutions, in addition to other initiatives, portray the longstanding saga of the United Nations in the condemnation of nuclear weapons. Decimus: The fact that weapons of mass destruction (poisonous gases, biological and chemical weapons) have been outlawed, and nuclear weapons, far more destructive, have not been banned yet, is a juridical absurdity. The obligation of nuclear disarmament has emerged and crystallized nowadays in both conventional and customary international law, and the United Nations has, along the decades, been giving a most valuable contribution to this effect.

317. Undecimus: In the cas d’espèce, the issue of United Nations resolutions and the emergence of opinio juris communis in the present domain of the obligation of nuclear disarmament has grasped the attention of the contending parties in submitting their distinct arguments before the Court. Duodecimus: The presence of evil has marked human existence along the centuries. Ever since the eruption of the nuclear age in August 1945, some of the world’s great thinkers have been inquiring whether humankind has a future, and have been drawing attention to the imperative of respect for life and the relevance of humanist values. Tertius decimus: Also in international legal doctrine there have been those who have been stressing the needed prevalence of human conscience, the universal juridical conscience, over State voluntarism.

318. Quartus decimus: The U.N. Charter is attentive to peoples; the recent cycle of World Conferences of the United Nations has had, as a common denominator, the recognition of the legitimacy of the concern of the international community as a whole with the conditions of living and the well-being of peoples everywhere. Quintus decimus: General principles of law (prima principia) rest in the foundations of any legal system. They inform and conform its norms, guide their application, and draw attention to the prevalence of jus necessarium over jus voluntarium.

319. Sextus decimus: The nature of a case before the Court may well require a reasoning going beyond the strictly inter-State outlook; the present case concerning the obligation of nuclear disarmament requires attention to be focused on peoples, in pursuance of a humanist outlook, rather than on inter-State susceptibilities. Septimus decimus: The inter-State mechanism of adjudication of contentious cases before the ICJ does not at all imply that the Court’s reasoning should likewise be strictly inter-State. Nuclear disarmament is a matter of concern to humankind as a whole.

320. Duodevicesimus: The present case stresses the utmost importance of fundamental principles, such as that of the juridical equality of States, following the principle of humanity, and of the idea of an objective justice. Undevicesimus: Factual inequalities and the strategy of “deterrence” cannot be made to prevail over the juridical equality of States. Vicesimus: “Deterrence” cannot keep on overlooking the distinct series of U.N. General Assembly resolutions, expressing an opinio juris communis in condemnation of nuclear weapons. Vicesimus primus: As also sustained by general principles of international law and international legal doctrine, nuclear weapons are in breach of international law, of IHL and the ILHR, and of the U.N. Charter.

321. Vicesimus secundus: There is need of a people-centred approach in this domain, keeping in mind the fundamental right to life; the raison d’humanité prevails over the raison d’État. Attention is to be kept on the devastating and catastrophic consequences of the use of nuclear weapons. Vicesimus tertius: In the path towards nuclear disarmament, the peoples of the world cannot remain hostage of individual State consent. The universal juridical conscience stands well above the “will” of the State. Vicesimus quartus: The absolute prohibitions of arbitrary deprivation of human life, of infliction of cruel, inhuman or degrading treatment, and of infliction of unnecessary suffering, are prohibitions of jus cogens, which have and incidence on ILHR and IHL and ILR, and foster the current historical process of humanization of international law.

322. Vicesimus quintus: The positivist outlook unduly overlooks the opinio juris communis as to the illegality of all weapons of mass destruction, including [and starting with] nuclear weapons, and the obligation of nuclear disarmament, under contemporary international law. Vicesimus sextus: Conventional and customary international law go together, in the domain of the protection of the human person, as disclosed by the Martens clause, with an incidence on the prohibition of nuclear weapons. Vicesimus septimus: The existence of nuclear weapons is the contemporary tragedy of the nuclear age; today, more than ever, human beings need protection from themselves. Nuclear weapons have no ethics, and ethics cannot be separated from law, as taught by jusnaturalist thinking.

323. Vicesimus octavus: Humankind, a subject of rights, has been a potential victim of nuclear weapons already for a long time. Vicesimus nonus: The law of nations encompasses, among its subjects, humankind as a whole (as propounded by the “founding fathers” of international law). Trigesimus: This humanist vision is centred on peoples, keeping in mind the humane ends of States. Trigesimus primus: Opinio juris communis necessitatis, upholding a customary and conventional obligation of nuclear disarmament, has been finding expression in the NPT Review Conferences, in the relevant establishment of nuclear-weapon-free zones, and in the recent Conferences of Humanitarian Impact of Nuclear Weapons, – in their common cause of achieving and maintaining a nuclear-weapon-free world. Trigesimus secundus: Those initiatives have gone beyond the State-centric outlook, duly attentive to peoples’ and humankind’s quest for survival in our times.

324. Trigesimus tertius: Opinio juris communis – to which U.N. General Assembly resolutions have contributed – has a much broader dimension than the subjective element of custom, being a key element in the formation of a law of conscience, so as to rid the world of the inhuman threat of nuclear weapons. Trigesimus quartus: U.N. (General Assembly and Security Council) resolutions are adopted on behalf of the United Nations Organization itself (and not only of the States which voted in their favour); they are thus valid for all U.N. member States.

325. Trigesimus quintus: The United Nations Organization, endowed with an international legal personality of its own, upholds the juridical equality of States, in striving for the realization of common goals such as nuclear disarmament. Trigesimus sextus: Of the main organs of the United Nations, the contributions of the General Assembly, the Security Council and the Secretary-General to nuclear disarmament have been consistent and remarkable along the years.

326. Trigesimus septimus: United Nations resolutions in this domain address a matter of concern to humankind as a whole, which cannot thus be properly approached from a State voluntarist perspective. The universal juridical conscience stands well above the “will” of individual States. Trigesimus octavus: The ICJ, as the principal judicial organ of the United Nations, is to keep in mind basic considerations of humanity, with their incidence on questions of admissibility and jurisdiction, as well as of substantive law. Trigesimus nonus: In sum, the ICJ has jurisdiction to consider the cas d’espèce, and there is a conventional and customary international law obligation of nuclear disarmament; whether there has been a breach of this obligation, the Court could only decide on the merits phase of the present case.

327. Quadragesimus: A world with arsenals of nuclear weapons, like ours, is bound to destroy its past, dangerously threatens the present, and has no future at all. Nuclear weapons pave the way into nothingness. In my understanding, the International Court of Justice, as the principal judicial organ of the United Nations, should, in the present Judgment, have shown sensitivity in this respect, and should have given its contribution to a matter which is a major concern of the vulnerable international community, and indeed of humankind as a whole.

(signed) Antônio Augusto CANÇADO TRINDADE

Judge

BOOKS BY THE SAME AUTHOR⁴⁰¹

A Humanização do Direito Internacional, 1st ed. Belo Horizonte: Ed. Del Rey, 2006, pp. 3-409; 2nd ed. Belo Horizonte: Editora Del Rey, 2015, pp. 3-789;

A Incorporação das Normas Internacionais de Proteção dos Direitos Humanos no Direito Brasileiro (ed.). San José de Costa Rica/Brasília: IIDH/ACNUR/CICV/CUE, 1996, pp. 1-845 (1st ed., out of print); 2nd ed. San José de Costa Rica/Brasília: IIDH/ACNUR/CICV/CUE/ASDI, 1996, pp. 1-845 (2nd ed, out of print);

A Proteção dos Direitos Humanos nos Planos Nacional e Internacional: Perspectivas Brasileiras (ed.). San José de Costa Rica/Brasília: IIDH/Fundação F. Naumann, 1992, pp. 1-358 (out of print);

A Proteção Internacional dos Direitos Humanos (Coletânea de Ensaios). Rio de Janeiro: Sindicato dos Bancos do Estado do Rio de Janeiro, 1988, pp. 7-280 (tentative edition, out of print);

A Proteção Internacional dos Direitos Humanos - Fundamentos Jurídicos e Instrumentos Básicos. São Paulo: Editora Saraiva, 1991, pp. 1-742 (out of print);

A Proteção Internacional dos Direitos Humanos e o Brasil (1948-1997): As Primeiras Cinco Décadas, 1st ed. Brasília, Editora Universidade de Brasília (Edições Humanidades), 1998, pp. 1-208 (1st ed., out of print); 2nd ed. Brasília: Editora Universidade de Brasília (Edições Humanidades), 2000, pp. 1-214;

A Proteção dos Vulneráveis como Legado da II Conferência Mundial de Direitos Humanos (1993-2013). Fortaleza/Brasil: IBDH/IIDH/SLADI, 2014, pp. 13-356;

A Responsabilidade do Estado sob a Convenção contra o Genocídio: Em Defesa da Dignidade Humana. Fortaleza: IBDH/IIDH, 2015, pp. 9-265;

A Sociedade Democrática no Final do Século (co-authored with M. Faro de Castro). Brasília: Paralelo 15, 1997, pp. 7-255 (out of print);

As Três Vertentes da Proteção Internacional dos Direitos da Pessoa Humana (co-authored with G. Peytrignet and J. Ruiz de Santiago). Brasília/San José de Costa Rica: IIDH/ACNUR/CICV, 1996, pp. 1-289 (out of print);

Co-Existence and Co-Ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels). The Hague/Dordrecht M. Nijhoff, 1987, pp. 1-435 (vol. 202 of Recueil des Cours de l´Académie de Droit International de la Haye);

Conversación con Antônio Augusto Cançado Trindade - Reflexiones sobre la Justicia Internacional (in book-interview format with Emilia Bea). Valencia: Tirant lo Blanch, 2013, pp. 15-111;

Derechos Humanos, Desarrollo Sustentable y Medio Ambiente/Human Rights, Sustainable Development and the Environment/Direitos Humanos, Desenvolvimento Sustentável e Meio Ambiente (ed.). San José de Costa Rica/Brasília: IIDH/BID, 1992, pp. 1-356 (1st ed., out of print); 2nd ed. San José de Costa Rica/Brasília: IIDH/BID, 1995, pp. 1-414 (2nd ed., out of print);

Derecho Internacional y Derechos Humanos / Droit international et droits de l’homme (in coordenation with D. Bardonnet and R. Cuéllar) (Libro Conmemorativo de la XXIV Sesión del Programa Exterior de la Academia de Derecho Internacional de la Haya), 2nd ed. San José C.R./Haia, 2005, pp. V-VIII and 7-322.

Derecho Internacional de los Derechos Humanos - Esencia y Trascendencia (Votos en la Corte Interamericana de Derechos Humanos, 1991-2006), 1st ed. México: Editora Porrúa /Universidad Iberoamericana, 2007, pp. 1-1055 (1. ed., out of print);

Developments in the Rule of Exhaustion of Local Remedies in International Law, in 2 volumes, 15 chapters, 1.728 pages (internal circulation): Awarded Yorke Prize thesis by the Law School of the University of Cambridge, England, as the best Ph.D. thesis defended at that University in the field of International Law in the 1977-1978 biennium;

Direito das Organizações Internacionais, Brasília: Escopo Ed., 1990, pp. 1-521 (out of print); 1st ed. Belo Horizonte: Ed. Del Rey, 2002, pp. 1-795 (out of print); 3rd ed., Belo Horizonte: Editora Del Rey, 2003, pp. 1-990 (out of print); 4th ed., Belo Horizonte: Editora Del Rey, 2009, pp. 1-814 (out of print); 5th ed. Belo Horizonte: Editora Del Rey, 2012, pp. 1-838; 6th ed., Belo Horizonte: Editora Del Rey, 2014, pp. 1-846;

Direitos Humanos e Meio-Ambiente: Paralelo dos Sistemas de Proteção Internacional. Porto Alegre: S.A. Fabris Ed., 1993, pp. 1-351 (out of print);

Doctrina Latinoamericana del Derecho Internacional, volume I (coauthored with A. Martínez Moreno), San José de Costa Rica: Corte Interamericana de Derechos Humanos, 2003, pp. 5-64 (out of print);

Doctrina Latinoamericana del Derecho Internacional, volume II (coauthored wih F. Vidal Ramírez). San José de Costa Rica: Corte Interamericana de Derechos Humanos, 2003, pp. 5-66 (out of print);

El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos. Bilbao: Universidad de Deusto, 2001, pp. 9-104;

El Derecho de Acceso a la Justicia en Su Amplia Dimensión, 2nd ed. Santiago de Chile: Editora Librotecnia, 2012, pp. 79-574;

El Derecho Internacional de los Derechos Humanos en el Siglo XXI, 2. ed. Santiago: Editorial Jurídica de Chile, 2006, pp. 9-559;

El Ejercicio de la Función Judicial Internacional - Memorias de la Corte Interamericana de Derechos Humanos, 4th ed. Belo Horizonte: Editora Del Rey, 2017, pp. 1-441;

El Futuro de la Corte Interamericana de Derechos Humanos (co-authored with M.E. Ventura Robles), 3rd ed. rev. San José de Costa Rica: Corte Interamericana de Derechos Humanos, 2005, pp. 7-629;

El Principio Básico de Igualdad y No-Discriminación: Construcción Jurisprudencial, 1st ed. Santiago de Chile: Editora Librotecnia, 2013, pp. 39-748;

Esencia y Transcendencia del Derecho Internacional de los Derechos Humanos (Votos en la Corte Interamericana de Derechos Humanos, 1991-2008), vols. I-III, 2nd ed. rev. México D.F.: Editora Cámara de Diputados, 2015, vol. I, pp. 3-687; vol. II, pp. 3-439; vol. III, pp. 3-421;

Évolution du Droit international au droit des gens - L´accès des particuliers à la justice internationale: le regard d’un juge. Paris: Pédone, 2008, pp. 1-187;

Informe: Bases para un Proyecto de Protocolo a la Convención Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Protección (Relator: A.A. Cançado Trindade), volume II, San José de Costa Rica, Corte Interamericana de Derechos Humanos, 2001, pp. 1-669 (1st ed.). San José de Costa Rica: Corte Interamericana de Derechos Humanos, 2003, pp. 1-1015 (2nd ed.);

International Law for Humankind - Towards a New Jus Gentium, 1st ed., Leiden/The Hague, Nijhoff/The Hague Academy of International Law (Monograph Series n. 6), 2010, pp. 1-726; 2nd rev. ed., 2013, pp. 1-726;

International Law for Humankind: Towards a New Jus Gentium - General Course on Public International Law - Part I, 316 Recueil des Cours de l´Académie de Droit International de la Haye (2005) pp. 31-439;

International Law for Humankind: Towards a New Jus Gentium - General Course on Public International Law - Part II, 317 Recueil des Cours de l´Académie de Droit International de la Haye (2005) pp. 19-312;

Judge A.A. Cançado Trindade - The Construction of a Humanized International Law - A Collection of Individual Opinions (1991-2013), vol. I (Inter-American Court of Human Rights), Leiden, Brill/Nijhoff, 2014, pp. 9-852; vol. II (International Court of Justice), Leiden, Brill/Nijhoff, 2014, pp. 853-1876;

La Nueva Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI (co-authored with Jaime Ruiz de Santiago). San José de Costa Rica: ACNUR, 2001, pp. 09-421 (1st ed., out of print; reimpression, 2002). San José de Costa Rica: ACNUR, 2003, pp. 7-764 (2nd ed.). San José de Costa Rica: ACNUR, 2004, pp. 17-1212; 23-1284 (3rd ed.). San José de Costa Rica: ACNUR, 2006, pp. 21-1284 (4th ed.);

La Humanización del Derecho Internacional Contemporáneo. México: Editora Porrúa, 2014, pp. XV-XVII and 1-324;

Las Tres Vertientes de la Protección Internacional de los Derechos de la Persona Humana (co-authored with G. Peytrignet and J. Ruiz de Santiago). México: Ed. Porrúa/Univ. Iberoamericana, 2003, pp. 1-169;

La Protección de la Persona Humana frente a los Crímenes Internacionales y la Invocación Indebida de Inmunidades Estatales. Fortaleza: IBDH/IIDH/SLADI, 2013, pp. 5-305;

La Protección Internacional de los Derechos Humanos en America Latina y el Caribe (Reunión Regional de America Latina y el Caribe Preparatoria de la Conferencia Mundial de Derechos Humanos de Naciones Unidas). San José de Costa Rica: IIDH/CEE, 1993, pp. 1-137 (1st ed., out of print); and in: ONU, doc. A/CONF.157/PC/63/Add.3, of 18.03.1993, pp. 9-137 (2nd ed., out of print);

Le Droit international pour la personne humain. Paris : Pédone, 2012, pp. 45-368;

Los Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional. Buenos Aires: Editora Ad-Hoc, 2013, pp. 7-185;

O Direito Internacional e a Solução Pacífica das Controvérsias Internacionais. Rio de Janeiro: Sindicato dos Bancos do Estado do Rio de Janeiro, 1988, pp. 3-135 (tentative edition, out of print);

O Direito Internacional em um Mundo em Transformação. Rio de Janeiro: Editora Renovar, 2002, pp. 1-1163;

O Direito Internacional e o Primado da Justiça (co-authored with A.C. Alves Pereira). Rio de Janeiro: Ed. Renovar, 2014, pp. 1-363;

O Esgotamento de Recursos Internos no Direito Internacional, 1st ed. Brasília: Editora Universidade de Brasília, 1984, pp. 1-285 (out of print); 2nd updated edition. Brasília: Editora Universidade de Brasília, 1997, pp. 1-327;

Os Tribunais Internacionais Contemporâneos. Brasília: FUNAG, 2013, pp. 7-132 (Coleção Em Poucas Palavras);

Os Tribunais Internacionais e a Realização da Justiça, 1st ed. Rio de Janeiro: Editora Renovar, 2015, pp. 1-507 (out of print);

Pareceres dos Consultores Jurídicos do Itamaraty (1985-1990 - Pareceres de A.A. Cançado Trindade), vol. VIII (org. A.P. Cachapuz de Medeiros). Brasília: Ministério das Relações Exteriores/Senado Federal, 2004, pp. 7-679 (out of print);

Princípios do Direito Internacional Contemporâneo, 1st ed. Brasília: Editora Universidade de Brasília, 1981, pp. 1-268 (out of print);

Repertório da Prática Brasileira do Direito Internacional Público (Período 1961-1981). Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 1984, pp. 1-353 (1st ed. out of print); 2nd ed. Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 2012, pp. 1-424;

Repertório da Prática Brasileira do Direito Internacional Público (Período 1941-1960). Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 1984, pp. 1-365 (1st ed. out of print); 2nd ed. Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 2012, pp. 1-444;

Repertório da Prática Brasileira do Direito Internacional Público (Período 1919-1940). Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 1984, pp. 1-278 (1st ed. out of print); 2nd ed. Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 2012, pp. 1-388;

Repertório da Prática Brasileira do Direito Internacional Público (Período 1899-1918). Brasília, Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 1986, pp. 1-518 (1st ed. out of print); 2nd ed. Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 2012, pp. 1-587;

Repertório da Prática Brasileira do Direito Internacional Público (Período 1889-1898). Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 1988, pp. 1-271 (1st ed. out of print); 2nd ed. Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 2012, pp. 1-302;

Repertório da Prática Brasileira do Direito Internacional Público (Índice Geral Analítico). Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 1987, pp. 1-237 (1st ed. out of print); 2nd ed. Brasília: Fundação Alexandre de Gusmão/Ministério das Relações Exteriores, 2012, pp. 1-284;

The Access of Individuals to International Justice [2007 General Course at the Academy of European Law in Florence]. Oxford: Oxford University Press, 2011, pp. 1-236;

The Application of the Rule of Exhaustion of Local Remedies in International Law. Cambridge: Cambridge University Press (Série “Cambridge Studies in International and Comparative Law”), 1983, pp. 1-445 (book based on the author's Ph.D. thesis, out of print);

Tratado de Direito Internacional dos Direitos Humanos, volume I, Porto Alegre, S.A. Fabris Ed., 1997, pp. 1-486 (1st ed., out of print); volume I. Porto Alegre: S.A. Fabris Ed., 2003, pp. 1-640 (2nd ed.);

Tratado de Direito Internacional dos Direitos Humanos, volume II. Porto Alegre: S.A. Fabris Ed., 1999, pp. 1-440 (out of print);

Tratado de Direito Internacional dos Direitos Humanos, volume III: Porto Alegre: S.A. Fabris Ed., 2003, pp. 1-663;

And approximately seven hundred and twenty (720) other published works, among monographies, essays, contributions to works and collections Mélanges/Festschriften, and articles published in numerous countries and in different languages.

Ambassador, president of Alexandre de Gusmão Foundation (FUNAG).

2 ICJ 1996 Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons. “Advisory Opinion of July 8 1996.” <Icj-cij.org>, p. 94.

3 “Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament” (Marshall Islands v. United Kingdom et alii). <Icj-cij.org>.

4 See declaration by the International Association of Lawyers Against Nuclear Arms (IALANA), a civil organization founded in 1988 in Sweden with consultative status before the United Nations, on the dismissal of the cases filed by the Marshall Islands at the International Court of Justice (ICJ): <http://lncp.org/pubs/IALANA%202016/IALANAstatementICJRMIoutcome.pdf>.

5 The resolution “Taking forward multilateral disarmament negotiations” (71/258) was adopted by the UNGA on December 23 2016 and calls for the start of such negotiations in March.

6 According to Article 36(2) of the Statute of the International Court of Justice, “The States Party to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty; b) any question of international law; c) the existence of a fact which, if established, would constitute a breach of an international obligation; d) the nature and extent of the reparation to be made for the breach of an international obligation.”

7 Series: Doctrine(s) Antônio A. Cançado Trindade, Le Droit International pour La personne humaine, Éditions A. Pedone, Paris, 2012, p. 45-368, particularly p. 61-90, containing the text of the December 20 2004 lecture by the author at the University of Hiroshima on the illegality of all weapons of mass destruction in the light of contemporary international law.

8 This paragraph refers to the concept of disarmament in its broadest meaning. From 1949 onwards there was a concern with mutual containment (caused by the detonation of the first nuclear explosive device by the USSR) but soon the risk of horizontal proliferation became evident (that is, an increase in the number of States possessing nuclear weapons). The interest of the two superpowers was above all to prevent horizontal proliferation, an objective that was attained in part. The NPT was simultaneously signed in 1968 by over 60 countries and entered into force in 1070, when the 40th instrument of ratification was deposited. Even before the first formal proposal of a non-proliferation treaty by the USA and the USSR (1965) non-nuclear countries, including Brazil, had already argued at the UN in favor of instruments to prevent the acquisition of nuclear weapons beyond the two original proliferators.

9 According to Araújo Castro, the NPT and the Charter of the United Nations are instruments of the “freezing” of world power, the former for establishing for ever two categories of nations (five legitimate possessors and all the rest not possessing nuclear weapons) and the latter for instituting the right of veto at the Security Council, exclusively for the same five countries. These features of the two multilateral instruments contradict the principle of the juridical equality of States, enshrined in the Charter itself.

10 In the Message to the Congress, the Brazilian government also defended the idea that the new factors determining international influence were linked to social and political stability, economic and social dynamism and diplomatic articulation, and no longer to the nuclear balance of power.

11 Article 21(XXIII a) of the Brazilian Constitution provides that “a) all nuclear activity in the national territory will only be allowed for peaceful purposes and as approved by the National Congress.”

12 LAMPREIA, Luiz Felipe. Diplomacia brasileira, palavras, contextos e razões, Lacerda & Editores, Rio de Janeiro: 1999, p. 392-394.

13 The two parties to the START II Treaty are apparently carrying out the agreed reductions, but have not yet reached the limits established in that instrument. There is no independent verification of these reductions, not any of the nine possessors recognized formally the need for concrete multilateral disarmament measures, despite generic manifestations of support to nuclear disarmament. Much to the contrary, these countries have refused to accept legally binding obligations to that effect in the multilateral organs that deal with the matter.

14 SIPRI Yearbook 2016.

15 It should be noted that the other possessors, particularly Russia, have also made efforts to “modernize” their arsenals. Some of them, like France and the United Kingdom, established unilateral quantitative limits. Other have expanded the number and the destructive capacity of their arms.

16 According to Article 2 of the 1998 Legislative Decree no. 65, which approved the text of the NPT, “the adhesion of Brazil to this Treaty is linked to the understanding that, in accordance with its Article VI, effective measures toward the cessation at an early date of the nuclear arms race, with the complete elimination of all atomic weapons will be taken.” The National Defense Strategy states, for its part, that “Brazil shall endeavor to keep open the paths to development of its nuclear energy technologies. It will not adhere to amendments to the Treaty on the Non-proliferation of Nuclear Weapons extending the restrictions of the Treaty until the nuclear weapon states advance in the central premise of the Treaty: their own nuclear disarmament”. (p. 21).

Ambassador, former United Nations High Representative for Disarmament Affairs.

18 The power of the Hiroshima bomb was 15 kilotons. One kiloton equals one thousand tons of TNT. One megaton represents the explosive power of one million tons of TNT.

19 The proliferation of nuclear weapons was considered a threat to international peace and security by the United Nations Security Council, the main organ responsible for the maintenance of peace and security. It may be argued that the current possessors in fact promoted proliferation by acquiring nuclear weapons and increasing their number and that they still promote it through technological improvements, even when they reduce their arsenals. In several opportunities, States recognized as “non-nuclear” under the NPT were the object of sanctions decided by the Security Council due to their nuclear activities.

20 For the entry into force of the CTBT the signature and/or ratification by eight countries that on the date of the preparation of this book had not yet done so: China, DPRK, Egypt, India, Iran, Israel, Pakistan and United States.

21 The CTBT allows “subcritical” tests (that is, those that do not produce a chain reaction) and computerized simulation in the laboratory.

22 The United States is urging its NATO allies not to participate in the negotiations, which they consider “premature”, “not realistic” and detrimental to the NPT. These countries advocate in the multilateral forums a “step by step” approach, which over the past decade facilitated the adoption of a number of multilateral measures. All of them, however, dealt with non-proliferation and none addressed disarmament proper. For the past twenty years the Conference on Disarmament, the negotiating organ instituted in 1978, whose decisions require consensus, has been unable to even adopt a program of work that would allow it to initiate substantive activities. Nuclear weapon States consider that the next step should be a treaty to prohibit the production of fissionable material for military purposes. Many non-nuclear countries, however, believe that as proposed this measure would be redundant from the point of view of non-proliferation and innocuous for disarmament and request the establishment of a working group to negotiate concrete, legally binding and irreversible nuclear disarmament measures. Frustration with the longstanding impasse explains the insistence on taking forward the proposal to negotiate a prohibition Convention at the General Assembly of the United Nations which operates by majority vote.

23 Judge at the International Court of Justice (The Hague), former president of the Inter-American Court for Human Rights, professor emeritus of International Law at the University of Brasília, doctor honoris causa from several Latin American and European Universities, former president of the Latin American International Law Society.

24 “Hollande Acknowledges Impact of Nuclear Testing in the Pacific”. Agence France Presse, 2.23.2016, p. 1.

25 “Hollande Acknowledges ‘Consequences’ of Nuclear Tests in Polynesia Trip”, France 24, 2.23.2016, p. 10.

26 “En Polynésie, les effets des essais nucléaires reconnus”, Le Monde, Paris, 2.24.2016, p. 30.

27 “In Hiroshima 71 Years After First Atomic Strike, Obama Calls for End of Nuclear Weapons”, The Washington Post, 5.27.2016, p. 3.

28 Ibid., p. 1-2.

29 At Hiroshima Memorial, Obama Says Nuclear Arms Require ‘Moral Revolution’, The New York Times, 5.27.2016, p. 1.

30 S. Squassoni, “Obama’s Hiroshima Visit Strengthens Calls for Nuclear Disarmament”, The Guardian, London, 5.27.2016, p. 1.

31 “Hiroshima Memory Must Never Fade, Obama Says on Historic Visit”, BBC, 5.27.2016, p. 5.

32 “Obama Visits Hiroshima – US President Pays Respect to A-Bomb Victims”, The Japan News/the Yomiuri Shimbun, 5.27.2016, p. 12.

33 R. Falk, “On President Obama’s Visit to Hiroshima”, 28 Peace Review – Journal of Social Justice (2016), n. 3, p. 278.

34 Ibid., p. 279.

35 Ibid., p. 276-277.

36 UN, doc. SG.SM/18189,-DC/3664, of 10.8.2016, p. 2.

37 UN, doc. GA/DIS/3550, of 10.10.2016, p. 1-10.

38 UN, doc. GA/DIS/3554, of 10.14.2016, p. 1-2. On the concern with nuclear terrorism, cf. UN, doc. GA/DIS/3553, of 10.13.2016, p. 1-8.

39 UN, doc. GA/DIS/3554, of 10.14.2016, p. 1-10.

40 UN, doc. GA/DIS/3563, of 10.17.2016, p. 1-19.

41 UN, GA/DIS/3552, of 10.12.2016, p. 2.

42 This document, originally issued on 10.14.2016, is titled Taking Forward Multilateral Nuclear Disarmament Negotiations, p. 1-14.

43 UN, doc. AS/C.1/71/L.41/p.3-4, Preamble and paragraphs 8 and 12.

44 UN, A/C.5/71/12, of 11.4.2016, p. 1-4.

45 PCIJ, case of Mavrommatis Palestine Concessions, Judgment of 30.08.1924, p. 11.

46 ICJ, Advisory Opinion (of 30.03.1950) on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, p. 74.

47 ICJ, South-West Africa cases (Ethiopia and Liberia versus South Africa, Judgment on Preliminary Objections of 21.12.1962), p. 328; ICJ, case of Armed Activities on the Territory of the Congo (New Application — 2002, D.R. Congo versus Rwanda, Judgment on Jurisdiction and Admissibility of 03.02.2006), p. 40, para. 90.

48 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Judgment on Preliminary Objections, of 11.06.1998), p. 275, para. 89.

49 Cf. paras. 50-105, and esp. paras. 31, 61 and 104-105, of the Court’s Judgment of 01.04.2011.

50 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Judgment on Preliminary Objections, of 11.06.1998), p. 315, para. 89: “a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party”.

51 Cf., to this effect, S. Rosenne, The Law and Practice of the International Court (1920-2005), 4th ed., vol. III, Leiden, Nijhoff/Brill, 2006, p. 1153.

52 Cf. W[ritten Statement] of the M.I., para. 40.

53 Cf. resolutions A/RES/68/32, A/RES/68/42, and A/RES/68/47 of 05.12.2013; A/RES/69/58, A/RES/69/43, and A/RES/69/48 of 02.12.2014; A/RES/70/34, A/RES/70/56, and A/RES/70/52 of 07.12.2015.

54 Response of the Marshall Islands to the questions addressed by Judge Cançado Trindade to both Parties, in: ICJ doc. CR 2016/13, para. 9.

55 Preliminary Objections of the U.K., para. 5.

56 PCIJ, case of Mavrommatis Palestine Concessions, Judgment of 30.08.1924, p. 34.

57 PCIJ, case of Certain German Interests in Polish Upper Silesia case (Jurisdiction), Judgment of 25.08.1925, p. 14.

58 PCIJ, case of Interpretation of Judgments ns. 7 and 8 — Chorzów Factory, Judgment of 16.12.1927, pp. 10-11.

59 Cf., e.g., ICJ, Advisory Opinion (of 26.04.1988) on the Applicability of the Obligation to Arbitrate under Section 21 of the U.N. Headquarters Agreement of 26.06.1947, pp. 28-29, para. 38; ICJ, case of Nicaragua versus United States (Jurisdiction and Admissibility), Judgment of 26.11.1984, pp. 428-429, para. 83. Moreover, the critical date for the determination of the existence of a dispute is, “in principle” (as the ICJ says), the date on which the application is submitted to the Court (ICJ, case of Questions Relation to the Obligation to Prosecute or Extradite, Judgment of 20.07.2012, p. 20, para. 46; ICJ, case of Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, Preliminary Objections, Judgment of 17.03.2016, p. 25, para. 52); the ICJ’s phraseology shows that this is not a strict rule, but rather one to be approached with flexibility.

60 ICJ, case of East Timor (Portugal versus Australia), I.C.J. Reports 1995, p. 100, para. 22 (Judgment of 30.06.1995).

61 ICJ, case of the Application of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia, Preliminary Objections, Judgment of 11.07.1996), I.C.J. Reports 1996, pp. 595 and 614-615, paras. 27-29.

62 Ibid., p. 615, para. 29.

63 ICJ, case of Certain Property (Liechtenstein versus Germany, Preliminary Objections, Judgment of 10.02.2005), I.C.J. Reports 2005 p. 19, para. 25, citing the Court’s Judgments in the cases of East Timor, I.C.J. Reports 1995, p. 100, para. 22; and of the Application of the Convention against Genocide (Preliminary Objections), I.C.J. Reports 1996, p. 615, para. 29.

64 As the present proceedings relate to jurisdiction, the opposition of views is captured in the various jurisdictional objections; it would be even more forceful in pleadings on the merits, which, given the Court’s majority decision, will regrettably no longer take place.

65 Application Instituting Proceedings of the Marshall Islands, pp. 35-6, paras. 100-109.

66 Preliminary Objections of the United Kingdom, pp. 2-3, paras. 4-5.

67 Namely, in sequence, General Assembly resolutions A/RES/33/71B of 14.12.1978, and A/RES/35/152D of 12.12.1980.

68 Cf. General Assembly resolutions A/RES/34/75 of 11.12.1979, and A/RES/35/46 of 03.12.1980.

69 Cf. General Assembly resolutions A/RES/43/78L of 07.12.1988, and A/RES/45/62 A of 04.12.1990.

70 Cf. General Assembly resolutions A/RES/33/71B of 14.12.1978, and A/RES/35/152D of 12.12.1980.

71 ICJ, doc. CR 95/25, of 03.11.1995, pp. 52-53 (statement of Mexico).

72 ICJ, doc. CR 95/22, of 30.10.1995, pp. 44-45 (statement of Australia).

73 ICJ, doc. CR 95/26, of 06.11.1995, pp. 23-24 (statement of Iran).

74 ICJ, doc. CR 95/28, of 09.11.1995, pp. 62-63 (statement of the Philippines).

75 ICJ, doc. CR 95/31, of 13.11.1995, p. 46 (statement of Samoa).

76 ICJ, doc. CR 95/27, of 07.11.1995, pp. 58-59 (statement of Malaysia).

77 Cf., e.g., ICJ, doc. CR 95/35, of 15.11.1995, p. 34, and cf. p. 22 (statement of Zimbabwe, on its initiative as Chair of the Non-Aligned Movement).

78 Cf., e.g., inter alia, General Assembly resolution A/RES/50/71E, of 12.12.1995.

79 Note that in earlier resolutions, the following year is explicitly referenced, i.e., States should commence negotiations in “the following year”. This reference is removed in later resolutions.

80 Cf. also Security Council resolutions S/RES/1695 of 15.07.2006; S/RES/1718 of 14.10.2006; S/RES/1874 of 12.06.2009; S/RES/1928 of 07.06.2010; S/RES/2094 of 07.03.2013; S/RES/2141 of 05.03.2014; S/RES/2159 of 09.06.2014; S/RES/2224 of 09.06.2015; S/RES/2270 of 02.03.2016. In preambular paragraphs of all these Security Council resolutions, the Security Council reaffirms, time and time again, that the proliferation of nuclear, chemical and biological weapons, and their means of delivery, constitutes a threat to international peace and security.

81 U.N. doc. S/23500, of 31.01.1992, pp. 1-5.

82 Ibid., pp. 2 and 5.

83 Ibid., p. 4.

84 Ibid., p. 4.

85 Cf. e.g. Security Council resolutions 1540, of 28.04.2004; 1673, of 27.04.2006; 1810, of 25.04.2008; 1977, of 20.04.2011. And cf. also resolutions 1695, of 15.07.2006; 1718, of 14.10.2006; 1874, of 12.06.2009; 1928, of 07.06.2010; 2094, of 07.03.2013; 2141, of 05.03.2014; 2159, of 09.06.2014; 2224, of 09.06.2015; and 2270, of 02.03.2016.

86 For a historical account and the perspectives of the CTBT, cf., e.g., K.A. Hansen, The Comprehensive Nuclear Test Ban Treaty, Stanford, Stanford University Press, 2006, pp. 1-84; [Various Authors,] Nuclear Weapons after the Comprehensive Test Ban Treaty (ed. E. Arnett), Stockholm-Solna/Oxford, SIPRI/Oxford University Press, 1996, pp. 1-141; J. Ramaker, J. Mackby, P.D. Marshall and R. Geil, The Final Test — A History of the Comprehensive Nuclear-Test-Ban Treaty Negotiations, Vienna, Ed. Prep. Comm. of CTBTO, 2003, pp. 1-265.

87 Those 44 States, named in Annex 2, participated in the CTBT negotiations at the Conference on Disarmament, from 1994 to 1996, and possessed nuclear reactors at that time.

88 U.N. doc. SG/SM/17709-DC/3628, of 27.04.2016, pp. 1-2.

89 Ibid., p. 2.

90 Ever since, several G.A. resolutions have called for a 4th Special Session on Disarmament, but it has not yet taken place.

91 And cf. also paras. 18 and 20.

92 E.g., the aforementioned NPT, CTBT, the Biological Weapons Convention, and the Chemical Weapons Convention, in addition to the seabed treaties, and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques.

93 ICJ, doc. CR 2016/1, of 07.03.2016, para. 7.

94 Ibid., para. 8.

95 Ibid., para. 7.

96 ICJ, doc. CR 2016/4, of 10.03.2016, para. 1, p. 19.

97 Counter-Memorial of India, p. 9, para. 13.

98 Ibid., p. 8, para. 12.

99 Counter-Memorial of Pakistan., p. 8, para. 2.3.

100 Ibid., p. 8, para. 2.4.

101 Ibid., p. 14, para. 4.4; p. 30, para. 7.55.

102 Ibid., p. 38, paras. 7.95-7.97.

103 Ibid., p. 38, para. 7.97.

104 ICJ, doc. CR 2016/9, of 16.09.2016, pp. 33-34.

105 ICJ, Reply of the United Kingdom to the Questions Addressed by Judge Cançado Trindade to Both Parties, doc. MIUK 2016/13, of 23.03.2016, pp. 1-2, para. 3.

106 The Marshall Islands also cites the International Law Commission’s Draft Conclusions on the Identification of Customary International Law (2015), which recognise the importance of the attitude of States towards General Assembly resolutions for establishing State practice and opinio juris. ICJ, Reply of the Marshall Islands to the Questions Addressed by Judge Cançado Trindade to Both Parties, doc. MIUK 2016/13, of 23.03.2016, pp. 2-3, paras. 2-5.

107 Ibid., p. 4, para. 7.

108 Ibid., p. 4, para. 8.

109 Ibid., p. 4, para. 9.

110 Preceded by a nuclear test undertaken by the United States at Alamagordo, New Mexico, on 16.07.1945.

111 M. Gandhi, “Atom Bomb and Ahimsa”, Harijan (07.07.1946), reproduced in: Journalist Gandhi — Selected Writings of Gandhi (org. S. Sharma), 1st ed., Mumbai, Ed. Gandhi Book Center, 1994, p. 104; also cit. in: P.F. Power, Gandhi on World Affairs, London, Allen & Unwin, 1961, pp. 63-64.

112 Cit. in: What Mahatma Gandhi Said about the Atom Bomb (org. Y.P. Anand), New Delhi, National Gandhi Museum, 1998, p. 5.

113 From the Journal Harijan (29.09.1946), cit. in: Faisal Devji, The Impossible Indian — Gandhi and the Temptation of Violence, London, Hurst & Co., 2012, p. 150.

114 K. Jaspers, La bombe atomique et l’avenir de l’homme [1958], Paris, Buchet/Chastel, 1963, pp. 22 and 336.

115 Ibid., p. 576.

116 Ibid., pp. 621 and 640.

117 B. Russell, Has Man a Future?, [London], Penguin Books, 1962 [reprint], pp. 27 and 37.

118 Ibid., p. 45.

119 Ibid., pp. 45-46, and cf. 69.

120 Ibid., pp. 97 and 79.

121 K. Popper, The Lesson of This Century (interview with G. Bosetti), London/N.Y., Routledge, 1997, pp. 24 and 28. And cf. also, earlier on, K. Popper, La Responsabilidad de Vivir — Escritos sobre Política, Historia y Conocimiento [1994], Barcelona, Paidós, 2012 [reed.], p. 242, and cf. p. 274.

122 M. Gallo, Caïn et Abel – Le premier crime, [Paris], Fayard, 2011, pp. 112 and 141.

123 Ibid., p. 174.

124 Ibid., pp. 236-237.

125 B. Russell, L’homme survivra-t-il?, Paris, Éd. J. Didier, 1963, pp. 162-163.

126 B. Russell, Has Man a Future?, op. cit. supra n. (73), pp. 109-110. Towards the end of his life, Bertrand Russell again warned against the extreme danger of atomic and hydrogen bombs, and expressed his concern that people seemed to get used to their existence; cf. B. Russell, Autobiography [1967], London, Unwin, 1985 [reed.], pp. 554-555.

127 Cf. A.J. Toynbee, A Study in History, Oxford, Oxford University Press, 1970 [3rd reprint], pp. 48-558, 559-701, 702-718 and 826-850; A.J. Toynbee, Civilization on Trial, Oxford/N.Y., Oxford University Press, 1948, pp. 3-263.

128 A.J. Toynbee, Guerra e Civilização [War and Civilization], Lisbon, Edit. Presença, 1963, pp. 29, 129 and 178.

129 H. Hesse, Sobre la Guerra y la Paz [1946], 5th ed., Barcelona, Edit. Noguer, 1986, pp. 119 and 122.

130 H. Hesse, Guerre et Paix, Paris, L’Arche Éd., 2003 [reed.], pp. 127 and 133.

131 J. Maritain, “Dieu et la permission du mal”, in Œuvres de Jacques Maritain — 1961-1967 (Jacques et Raissa Maritain — Oeuvres Complètes), vol. XII, Fribourg/Paris, Éd. Universitaires/Éd. Saint-Paul, 1992, p. 17, and cf. p. 41.

132 Cf. J. Maritain, Humanisme intégral, Paris, Aubier, 2000 (reed.), pp. 18, 37, 137 and 230-232; J. Maritain, The Person and the Common Good, Notre Dame, University of Notre Dame Press, 2002 (reed.), pp. 29, 49-50, 92-93 and 104; J. Maritain, O Homem e o Estado, 4th ed., Rio de Janeiro, Livr. Agir Ed., 1966, pp. 96-102; J. Maritain, Los Derechos del Hombre y la Ley Natural, Buenos Aires, Ed. Leviatan, 1982, pp. 38, 44, 50, 69 and 94-95, and cf. pp. 79-82; J. Maritain, Para una Filosofía de la Persona Humana, Buenos Aires, Ed. Club de Lectores, 1984, pp. 164, 176-178, 196-197, 221 and 231.

133 J. Maritain, De la justice politique — Notes sur la présente guerre, Paris, Libr. Plon, 1940, pp. 88, 90-91, 106-107 and 112-114.

134 As shown in his posthumous book of essays: S. Zweig, Messages from a Lost World, London, Pushkin Press, 2016, pp. 55, 88-90, 97, 107 and 176.

135 Ibid., pp. 170 and 175.

136 S. Zweig, O Mundo que Eu Vi [1944, Die Welt von Gestern], Rio de Janeiro, Edit. Record, 1999, p. 483, and cf. 272-274, 278, 462, 467, 474, 490 and 503-505.

137 Ibid., p. 490.

138 Sigmund Freud, Civilization and Its Discontents [1930], N.Y., Norton & Cia., 1962 [reed.], pp. 7-9, 26, 36-37 and 59-63.

139 Cf. ibid., pp. 23 and 67-92.

140 C.G. Jung, Aspects du drame contemporain, Genève/Paris, Libr. de l’Univ. Georg/Éd. de la Colonne Vendôme, 1948, pp. 99 and 145.

141 Ibid., pp. 173 and 179.

142 Ibid., pp. 198-200, 208, 218-219 and 223.

143 A. Schweitzer, Filosofia da Civilização [1923], São Paulo, Edit. Unesp, 2011 [reed.], pp. 80, 304, 311 and 315.

144 A. Schweitzer, Pilgrimage to Humanity [Weg zur Humanität], N.Y., Philosophical Library, 1961, pp. 87-88, 99 and 101.

145 M. Arnold, Albert Schweitzer – La compassion et la raison, Lyon, Éd. Olivétan, 2015, pp. 74-75 and 77.

146 Cit. in ibid., p. 111.

147 Extract from his book Paix ou guerre atomique (1958), reproduced in his posthumous book of essays: A. Schweitzer, Respect de la vie (org. B. Kaempf), Paris, Éd. Arfuyen/CIAL, 1990, p. 98.

148 L. Tolstoi, La Esclavitud de Nuestro Tiempo [1900], Barcelona, Littera, 2000 [reed.], pp. 86-87, 89, 91 and 97.

149 Ibid., pp. 101, 103-104 and 121.

150 G. Duhamel, Civilisation — 1914-1917, Paris, Mercure de France, 1944, pp. 53 and 274-275; G. Duhamel, Mémorial de la guerre blanche — 1938, Paris, Mercure de France, 1945, pp. 41, 95, 100, 102 and 170.

151 I. Berlin, The Proper Study of Mankind, N.Y., Farrar & Straus & Giroux, 2000 (reed.), pp. 78, 135, 155, 217, 235-236, 242, 247, 311 and 334; I. Berlin, “Return of the Volksgeist: Nationalism, Good and Bad”, in At Century’s End (ed. N.P. Gardels), San Diego/Cal., Alti Publ., 1995, p. 94.

152 Cf. E. Fromm, Las Cadenas de la Ilusión — Una Autobiografía Intelectual [1962], Barcelona, Paidós, 2008 [reed.], pp. 78 and 234-239.

153 Cf. E. Fromm, Anatomía de la Destructividad Humana [1974], Mexico/Madrid/Buenos Aires, 2009 [reed.], pp. 16-468; and cf. also E. Fromm, El Amor a la Vida [1983 — Über die Liebe zum Leben], Barcelona, Paidós, 2016 (4th reprint), pp. 15-250.

154 E. Fromm, Las Cadenas de la Ilusión..., op. cit. supra n. (108), pp. 240 and 250-251.

155 E. Morin, Vers l’abîme?, Paris, L’Herne, 2012, pp. 9, 24-25 and 40-41.

156 Ibid., pp. 27, 30, 59, 85, 89, 126 and 181.

157 E. Morin, Breve Historia de la Barbarie en Occidente, Barcelona, Paidós, 2009, p. 94, and cf. pp. 60 and 92-93.

158 E. Wiesel, Silences et mémoires d´hommes, Paris, Éd. Seuil, 1989, pp. 166, 173 and 175.

159 Ibid., pp. 167-168.

160 Ibid., p. 174, and cf. p. 170.

161 Ibid., pp. 175-176.

162 H. Bergson, La conscience et la vie [1911], Paris, PUF, 2012 [reprint], pp. 10-11, 13 and 26.

163 Ibid., pp. 5-6.

164 Cf. A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, 2nd rev. ed., Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 141-147 and 153-161.

165 Cf. G. Radbruch, Introducción a la Filosofía del Derecho, 3rd ed., Mexico/Buenos Aires, Fondo de Cultura Económica, 1965, pp. 9-180.

166 Cf., e.g., R. Alexy, The Argument from Injustice — A Reply to Legal Positivism, Oxford, Oxford University Press, 2010, pp. 3-130.

167 A. Verdross, Derecho Internacional Público, 5th ed., Madrid, Aguilar, 1969 [reprint], pp. 15-19.

168 R. Ago, “Nouvelles réflexions sur la codification du droit international”, 92 Revue générale de droit international public (1988) p. 540, and cf. p. 541 on “la nature non volontaire de l’origine du droit coutumier”.

169 A. de La Pradelle, Droit international public (cours sténographié), Paris, Institut des Hautes Études Internationales/Centre Européen de la Dotation Carnegie, November 1932/May 1933, p. 33, and cf. pp. 36-37.

170 Ibid., pp. 49-59, 149, 222 and 264.

171 Cf. ibid., pp. 412-413.

172 Such as, e.g., those of Antonio Gómez Robledo, Meditación sobre la Justicia [1963], Mexico/Buenos Aires, Fondo de Cultura Económica, 1963, pp. 179 and 185; R. Quadri, “Cours général de droit international public”, 113 Recueil des Cours de l’Académie de Droit International de La Haye (1964) pp. 326, 332, 336-337, 339 and 350-351.

173 S. Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pédone, 1964, p. 18.

174 Cf. A.A. Cançado Trindade, op. cit. supra (120), ch. VI, pp. 139-161.

175 S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barcelona, Ed. Paidós/Universidad Autónoma de Barcelona, 1995, pp. 81-82, 84 and 130-131; S. Weil, Réflexions sur les causes de la liberté et de l’oppression sociale, Paris, Gallimard, 1955, pp. 124-125, and cf. pp. 114-115 and 144.

176 R.P. Sertillanges, Le problème du mal — l’histoire, Paris, Aubier, 1948, pp. 5-412.

177 Ibid., pp. 5-412.

178 Cf., inter alia, e.g., M. Neusch, L’énigme du mal, Paris, Bayard, 2007, pp. 7-193; J. Maritain, Dio e la Permissione del Male, 6th ed., Brescia, Edit. Morcelliana, 2000, pp. 9-100; E. Fromm, Anatomía de la Destructividad Humana, Mexico/Madrid/Buenos Aires, Siglo XXI Edit., 2009 [reprint.], pp. 11-468; P. Ricoeur, Evil — A Challenge to Philosophy and Theology, London, Continuum, 2007, pp. 33-72; P. Ricoeur, Le mal — Un défi à la philosophie et à la théologie, Genève, Éd. Labor et Fides, 2004, pp. 19-65; C.S. Nino, Juicio al Mal Absoluto, Buenos Aires, Emecé Edit., 1997, pp. 7-292; A. Morton, On Evil, N.Y./London, Routledge, 2004, pp. 1-148; T. Eagleton, On Evil, New Haven/London, Yale University Press, 2010, pp. 1-163; P. Dews, The Idea of Evil, Oxford, Wiley-Blackwell, 2013, pp. 1-234.

179 Cf., moreover, inter alia, e.g., [Various Authors,] Le Mal (ed. C. Crignon), Paris, Flammarion, 2000, pp. 11-232; J. Waller, Becoming Evil, 2nd ed., Oxford, Oxford University Press, 2007, pp. 3-330; S. Baron-Cohen, The Science of Evil — On Empathy and the Origins of Cruelty, N.Y., Basic Books, 2012, pp. 1-243; L. Svendsen, A Philsophy of Evil, Champaign/London, Dalkey Archive Press, 2011 [reprint], pp. 9-282; M. Salvioli, Bene e Male — Variazioni sul Tema, Bologna, Ed. Studio Domenicano (ESD), 2012, pp. 11-185; D. Livingstone Smith, Less than Human, N.Y., St. Martin’s Press, 2011, pp. 1-316; R. Safranski, El Mal, o el Drama de la Libertad, 4th ed., Barcelona, Tusquets Edit., 2014, pp. 15-281; S. Neiman, Evil in Modern Thought, 2nd ed., Princeton/Oxford, Princeton University Press, 2015, pp. 1-359; J.-C. Guillebaud, Le tourment de la guerre, Paris, Éd. de l’Iconoclaste, 2016, pp. 9-390.

180 Max Huber, La pensée et l’action de la Croix-Rouge, Genève, CICR, 1954, pp. 26, 247, 270, 286 and 291.

181 Cf., e.g., the case of Nottebohm (1955, pertaining to double nationality); the cases of the Trial of Pakistani Prisoners of War (1973), of the Hostages (U.S. Diplomatic and Consular Staff) in Teheran case (1980); of the Application of the Convention against Genocide (Bosnia versus Serbia, 1996 and 2007); of the Frontier Dispute between Burkina Faso and Mali (1998); the triad of cases concerning consular assistance — namely, the cases Breard (Paraguay versus United States,1998), the case LaGrand (Germany versus United States, 2001), the case Avena and Others (Mexico versus United States, 2004); the cases of Armed Activities in the Territory of Congo (D.R. Congo versus Uganda, 2000, concerning grave violations of human rights and of International Humanitarian Law); of the Land and Maritime Boundary between Cameroon and Nigeria (1996); of Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus Senegal, 2009-2013, pertaining to the principle of universal jurisdiction under the U.N. Convention against Torture); of A.S. Diallo (Guinea versus D.R. Congo, 2010), on detention and expulsion of a foreigner), of the Jurisdictional Immunities of the State (Germany versus Italy, Greece intervening, 2010-2012); of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus Russian Federation, 2011); of the Temple of Preah Vihear (Cambodia versus Thailand, provisional measures, 2011); of the Application of the Convention against Genocide (Croatia versus Serbia, 2015). To those cases one can add the two most recent Advisory Opinions of the ICJ, on the Declaration of Independence of Kosovo (2010); and on a Judgment of the ILO Administrative Tribunal upon a Complaint Filed against the IFAD (2012).

182 B. Boutros-Ghali, Nouvelles dimensions de la réglementation des armements et du désarmement dans la période de l’après-guerre froide — Rapport du Secrétaire Général, N.Y., Nations Unies, 1993, pp. 21-22.

183 E.g., in the U.N. Conference on Environment and Development (Rio de Janeiro, 1992, in its World NGO Forum) and in the II World Conference on Human Rights (Vienna, 1993, in the same Forum and in its Drafting Committee).

184 A growing call was formed for the pursuance of social justice among and within nations.

185 A.A. Cançado Trindade, A Proteção dos Vulneráveis como Legado da II Conferência Mundial de Direitos Humanos (1993-2013), Fortaleza/Brazil, IBDH/IIDH/SLADI, 2014, pp. 13-356; A.A. Cançado Trindade, “Sustainable Human Development and Conditions of Life as a Matter of Legitimate International Concern: The Legacy of the U.N. World Conferences”, in Japan and International Law — Past, Present and Future (International Symposium to Mark the Centennial of the Japanese Association of International Law), The Hague, Kluwer, 1999, pp. 285-309; A.A. Cançado Trindade, “The Contribution of Recent World Conferences of the United Nations to the Relations between Sustainable Development and Economic, Social and Cultural Rights”, in Les hommes et l’environnement: Quels droits pour le vingt-et-unième siècle? - Études en hommage à Alexandre Kiss (eds. M. Prieur and C. Lambrechts), Paris, Éd. Frison-Roche, 1998, pp. 119-146; A.A. Cançado Trindade, “Memória da Conferência Mundial de Direitos Humanos (Viena, 1993)”, 87/90 Boletim da Sociedade Brasileira de Direito Internacional (1993-1994) pp. 9-57.

186 Those Conferences acknowledged that human rights do in fact permeate all areas of human activity, and contributed decisively to the reestablishment of the central position of human beings in the conceptual universe of the law of nations (droit des gens). Cf., on the matter, A.A. Cançado Trindade, Évolution du Droit international au droit des gens — L’accès des particuliers à la justice internationale: le regard d’un juge, Paris, Pédone, 2008, pp. 1-187.

187 Even if only to dismiss it (para. 116).

188 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), pp. 84-85, and cf. pp. 62-63, 65 and 73.

189 Cf. criticisms of such posture in, e.g., A. Sayed, Quand le droit est face à son néant — Le droit à l’épreuve de l’emploi de l’arme nucléaire, Bruxelles, Bruylant, 1998, pp. 79-80, 84, 88-89, 96 and 113.

190 Cf. ibid., p. 147, and cf. pp. 129, 133, 151, 160, 174-175, 197 and 199-200.

191 On the expansion of the material content of this latter, cf. A.A. Cançado Trindade, “Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-Law”, in XXXV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano — 2008, Washington D.C., OAS General Secretariat, 2009, pp. 3-29.

192 A.A. Cançado Trindade, “La Humanización del Derecho Internacional y los Límites de la Razón de Estado”, in 40 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais — Belo Horizonte/Brazil (2001), pp. 11-23.

193 Cf., e.g., the testimonies of the Mayors of Hiroshima and Nagasaki, in part XIII, infra.

194 ICJ, doc. CR 95/35, of 15.11.1995, p. 32 (statement of Zimbabwe).

195 ICJ, doc. CR 95/27, of 07.11.1995, p. 37 (statement of the Mayor of Nagasaki).

196 Ibid., p. 45, para. 14 (statement of Malaysia).

197 Ibid., p. 55, para. 8; and cf. pp. 60-61 and 63, paras. 17-20 (statement of Malaysia).

198 Cf., e.g., G. E. do Nascimento e Silva, “A Proliferação Nuclear e o Direito Internacional”, in Pensamiento Jurídico y Sociedad Internacional — Libro-Homenaje al Prof. A. Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986, pp. 877-886; C.A. Dunshee de Abranches, Proscrição das Armas Nucleares, Rio de Janeiro, Livr. Freitas Bastos, 1964, pp. 114-179.

199 Cf. Annuaire de l’Institut de Droit International – Session d’Edimbourg (1969)-II, pp. 49-50, 53, 55, 60, 62-63, 66, 88-90 and 99.

200 Text in: Annuaire de l’Institut de Droit International – Session d’Edimbourg (1969) II, pp. 375-376.

201 Paras. 1-3, 5-6 and 8, in ibid., pp. 376-377.

202 Text in ibid., pp. 376-377.

203 International Law Association (I.L.A.), Committee: Nuclear Weapons, Non-Proliferation and Contemporary International Law (2nd Report: Legal Aspects of Nuclear Disarmament), I.L.A. Washington Conference, 2014, pp. 2-4.

204 Ibid., pp. 5-6.

205 Ibid., pp. 8-9.

206 Ibid., p. 18.

207 Nagendra Singh, Nuclear Weapons and International Law, London, Stevens, 1959, p. 242.

208 A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, op. cit. supra n. (120), ch. VI (“The Material Source of International Law: Manifestations of the Universal Juridical Conscience”), pp. 139-161.

209 Text of my lecture reproduced in: A.A. Cançado Trindade, Le Droit international pour la personne humaine, Paris, Pédone, 2012, ch. I (“L’illicéité de toutes les armes de destruction massive au regard du droit international contemporain”), pp. 61-90; A.A. Cançado Trindade, A Humanização do Direito Internacional, 2nd ed., Belo Horizonte/Brazil, Edit. Del Rey, 2015, ch. XVII (“The Illegality under Contemporary International Law of All Weapons of Mass Destruction”), pp. 361-390.

210 Michihiko Hachiya, Journal d’Hiroshima — 6 août-30 septembre 1945 [1955], Paris, Éd. Tallandier, 2015 [reed.], pp. 25-281; Toyofumi Ogura, Letters from the End of the World — A Firsthand Account of the Bombing of Hiroshima [1948], Tokyo/N.Y./London, Kodansha International, 2001 [reed.], pp. 15-173; Naomi Shohno, The Legacy of Hiroshima — Its Past, Our Future, Tokyo, Kösei Publ. Co., 1987 [reed.], pp. 13-140; Kenzaburo Oe, Notes de Hiroshima [1965], [Paris,] Gallimard, 1996 [reed.], pp. 17-230; J. Hersey, Hiroshima [1946], London, Penguin, 2015 [reprint], pp. 1-98.

211 Kenzaburo Oe, Hiroshima Notes [1965], N.Y./London, Marion Boyars, 1997 [reed.], pp. 72 and 159.

212 Ibid., pp. 149 and 162.

213 Cf. J. Borrie, “Humanitarian Reframing of Nuclear Weapons and the Logic of a Ban”, 90 International Affairs (2014) p. 633, and cf. pp. 637, 643-644 and 646.

214 Cf. I.C.J. Reports 1974, pp. 63-455; and cf. I.C.J. Reports 1995, pp. 4-23, and the position of three dissenting Judges in ibid., pp. 317-421.

215 ICJ, Application Instituting Proceedings (of 09.05.1973), Nuclear Tests case (New Zealand versus France), pp. 8 and 15-16, cf. pp. 4-16.

216 ICJ, Application Instituting Proceedings (of 09.05.1973), Nuclear Tests case (Australia versus France), pp. 12 and 14, paras. 40, 47 and 49(1).

217 ICJ, Pleadings, Oral Arguments, Documents — Nuclear Tests cases (vol. II: New Zealand versus France, 1973-1974), pp. 256-257 and 264-266.

218 ICJ, Pleadings, Oral Arguments, Documents — Nuclear Tests cases (vol. I: Australia versus France, 1973-1974), p. 503.

219 For a critical parallel between the 1973 Orders and the 1974 Judgments, cf. P. Lellouche, “The Nuclear Tests Cases: Judicial Silence versus Atomic Blasts”, 16 Harvard International Law Journal (1975) pp. 615-627 and 635; and, for further criticisms, cf. ibid., pp. 614-637;

220 I.C.J. Reports 1974, pp. 272 and 478, respectively.

221 ICJ, Nuclear Tests case, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, I.C.J. Reports 1974, pp. 319-322, 367-369, 496, 500, 502-504, 514 and 520-521; and cf. Dissenting Opinion of Judge De Castro, ibid., pp. 386-390; and Dissenting Opinion of Judge Barwick, ibid., pp. 392-394, 404-405, 436-437 and 525-528. It was further pointed out that the ICJ should thus have dwelt upon the question of the existence of rules of customary international law prohibiting States from causing, through atmospheric nuclear tests, the deposit of radio-active fall-out on the territory of other States; ICJ, Nuclear Tests case, Separate Opinion of Judge Petrén, I.C.J. Reports 1974, pp. 303-306 and 488-489. It was the existence or otherwise of such customary rules that had to be determined, — a question which unfortunately was left largely unanswered by the Court in that case.

222 As recalled in the Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, I.C.J. Reports 1974, pp. 362, 368-369 and 520-521; as well as in the Dissenting Opinion of Judge Barwick, ibid., pp. 436-437.

223 Cf. I.C.J. Reports 1995 pp. 288-308; once again, there were Dissenting Opinions (cf. ibid., pp. 317-421). Furthermore, petitions against the French nuclear tests in the atoll of Mururoa and in that of Fangataufa, in French Polinesia, were lodged with the European Commission of Human Rights (EComHR); cf. EComHR, case N.N. Tauira and 18 Others versus France (appl. n. 28204/95), decision of 04.12.1995, 83-A Decisions and Reports (1995) p. 130.

224 As the ICJ understood, as to the other application, that the WHO was not competent to deal with the question at issue, – despite the purposes of that U.N. specialized agency at issue and the devastating effects of nuclear weapons over human health and the environment...

225 I.C.J. Reports 1996, pp. 266-267.

226 Ibid., p. 266.

227 L. Doswald-Beck, “International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 35-55; H. Fujita, “The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons”, in ibid., pp. 56-64. International Humanitarian Law prevails also over self-defence; cf. M.-P. Lanfranchi and Th. Christakis, La licéité de l’emploi d’armes nucléaires devant la Cour Internationale de Justice, Aix-Marseille/Paris, Université d’Aix-Marseille III/Economica, 1997, pp. 111, 121 and 123; S. Mahmoudi, “The International Court of Justice and Nuclear Weapons”, 66 Nordic Journal of International Law (1997) pp. 77-100; E. David, “The Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 21-34.

228 ICJ, doc. CR 95/32, of 14.11.1995, p. 22 (statement of the Marshall Islands).

229 Ibid., p. 23.

230 ICJ, doc. CR 95/32, of 14.11.1995, p. 31 (statement of Solomon Islands). Customary international law and general principles of international law have an incidence in this domain; ibid., pp. 36 and 39-40.

231 ICJ Advisory Opinion on Threat or Use of Nuclear Weapons, I.C.J Reports 1996, Dissenting Opinion of Judge Koroma, pp. 573-574 and 578.

232 Cf. ibid., Dissenting Opinions of Judge Shahabuddeen, pp. 386-387, 406, 408, 410-411 and 425; and of Judge Weeramantry, pp. 477-478, 481, 483, 486-487, 490-491, 494, 508 and 553-554.

233 Notably, the ground-breaking General Assembly resolution 1653(XVI), of 24.11.1961.

234 A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, op. cit. supra n. (120), pp. 415-418; L. Condorelli, “Nuclear Weapons: A Weighty Matter for the International Court of Justice— Jura Novit Curia?”, 316 International Review of the Red Cross (1997) pp. 9-20; M. Mohr, “Advisory Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons under International Law — A Few Thoughts on Its Strengths and Weaknesses”, 316 International Review of the Red Cross (1997) pp. 92-102. The Opinion is not conclusive and provides no guidance; J.-P. Queneudec, “E.T. à la C.I.J.: méditations d’un extra-terrestre sur deux avis consultatifs”, 100 Revue générale de Droit international public (1996) 907-914, esp. p. 912.

235 Cf. A.A. Cançado Trindade, Derecho Internacional de los Derechos Humanos, Derecho Internacional de los Refugiados y Derecho Internacional Humanitario — Aproximaciones y Convergencias, Geneva, ICRC, [2000], pp. 1-66.

236 Cf. A.A. Cançado Trindade, The Access of Individuals to International Justice, Oxford, Oxford University Press, 2012 [reprint], chs. II-III and VII, pp. 17-62 and 125-131.

237 ICJ, doc. CR 2016/5, of 11.03.2016, p. 9, para. 10.

238 ICJ, doc. CR 2016/1, of 07.03.2016, p. 16, paras. 4-5.

239 ICJ, doc. CR 2016/2, of 08.03.2016, p. 10, paras. 5-7.

240 ICJ, doc. CR 95/27, of 07.11.1995, pp. 22-23.

241 Ibid., pp. 24-25.

242 Ibid., pp. 25-27.

243 Ibid., p. 25.

244 Ibid., pp. 27-28.

245 Ibid., p. 30.

246 Ibid., pp. 30-31.

247 Ibid., p. 31.

248 ICJ, doc. CR 95/27, of 07.11.1995, p. 33.

249 Ibid., pp. 36-37.

250 Ibid., pp. 39.

251 ICJ, doc. CR 95/35, of 15.11.1995, p. 28 (statement of Zimbabwe).

252 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), ch. XII, pp. 291-326.

253 A.A. Cançado Trindade, “Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-Law”, in XXXV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano — 2008, Washington D.C., OAS General Secretariat, 2009, pp. 3-29.

254 The Geneva Protocol of 1925, and the Conventions of 1972 and 1993 against Biological and Chemical Weapons, respectively.

255 E.g., the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects.

256 The Roman-privatist influence — with its emphasis on the autonomy of the will  had harmful consequences in traditional international law; in the public domain, quite on the contrary, conscience stands above the “will”, also in the determination of competences.

257 A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Edit. Renovar, 2002, p. 1099.

258 Cf. Dissenting Opinion of Judge Loder, PCIJ, Lotus case (France versus Turkey), Series A, n. 10, Judgment of 07.09.1927, p. 34 (such conception was not in accordance with the “spirit of international law”).

259 Cf. J.L. Brierly, The Basis of Obligation in International Law and Other Papers, Oxford, Clarendon Press, 1958, p. 144; H. Lauterpacht, The Function of Law in the International Community, Oxford, Clarendon Press, 1933, pp. 409-412 and 94-96; and cf., subsequently, e.g., G. Herczegh, “Sociology of International Relations and International Law”, in Questions of International Law (ed. G. Haraszti), Budapest, Progresprint, 1971, pp. 69-71 and 77.

260 A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, op. cit. supra n. (213), p. 1099.

261 A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A Re-Assessment”, 59 Revue de droit international de sciences diplomatiques et politiques – Geneva (1981) p. 214, and cf. pp. 212-213. On the need of a universalist perspective, cf. also Cf. K. Tanaka, “The Character or World Law in the International Court of Justice” [translated from Japanese into English by S. Murase], 15 Japanese Annual of International Law (1971) pp. 1-22.

262 J. Salmon, Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou de l’emploi d´armes nucléaires’ rendu le 8 juillet 1996 par la Cour Internationale de Justice”, in Mélanges en l’honneur de N. Valticos — Droit et justice (ed. R.-J. Dupuy), Paris, Pédone, 1999, pp. 197-214, esp. pp. 208-209; R. Ticehurst, “The Martens Clause and the Laws of Armed Conflict”, 317 International Review of the Red Cross (1997) pp. 125-134, esp. pp. 133-134; A. Azar, Les opinions des juges dans l’Avis consultatif sur la licéité de la menace ou de l’emploi d’armes nucléaires, Bruxelles, Bruylant, 1998, p. 61.

263 Which was intended to extend juridically the protection to the civilians and combatants in all situations, even if not contemplated by the conventional norms.

264 A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 497-509.

265 Cf. comments in Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (eds. Y. Sandoz, C. Swinarski and B. Zimmermann), Geneva, ICRC/Nijhoff, 1987, pp. 389-420 and 597-600.

266 Cf. ICJ, doc. CR 95/31, of 13.11.1995, p. 45-46(statement of Samoa); ICJ, doc. CR 95/25, of 03.11.1995, p. 55 (statement of Mexico); ICJ, doc. CR 95/27, of 07.11.1995, p. 60 (statement of Malaysia).

267 ICJ, doc. 95/26, of 06.11.1995, p. 32 (statement of Iran).

268 ICJ, doc. 95/22, of 30.10.1995, p. 39 (statement of Australia).

269 ICJ, doc. 95/35, of 15.11.1995, p. 33 (statement of Zimbabwe).

270  Stefan Glaser, L’arme nucléaire à la lumière du Droit international, Paris, Pédone, 1964, pp. 15, 21, 24-27, 32, 36-37, 41, 43-44 and 62-63, and cf. pp. 18 and 53.

271 If, in other epochs, the ICJ had likewise limited itself to verify a situation of “legal uncertainty” (which, anyway, does not apply in the present context), most likely it would not have issued its célèbres Advisory Opinions on Reparations for Injuries (1949), on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951), and on Namibia (1971), which have so much contributed to the evolution of international law.

272 Cf. A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), pp. 1-726.

273 A.A. Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional, Buenos Aires, Ed. Ad-Hoc, 2013, pp. 166-167; and cf. C. Husson-Rochcongar, Droit international des droits de l’homme et valeurs — Le recours aux valeurs dans la jurisprudence des organes spécialisés, Bruxelles, Bruylant, 2012, pp. 309-311, 451-452, 578-580, 744-745 and 771-772.

274 In another international jurisdiction, in my Separate Opinion in the IACtHR’s case of the Massacres of Ituango versus Colombia (Judgment of 01.07.2006), I devoted part of my reflections to “human cruelty in its distinct manifestations in the execution of State policies” (part II, paras. 9-13).

275 ‘General Comment’ n. 14 (of 1984) of the HRC, text in: United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, doc. HRI/GEN/1/Rev.3, of 15.08.1997, pp. 18-19. The HRC, further stressing that the right to life is a fundamental right which does not admit any derogation not even in time of public emergency, related the current proliferation of weapons of mass destruction to “the supreme duty of States to prevent wars”. Cf. also U.N. Report of the Human Rights Committee, G.A.O.R. — 40th Session (1985), suppl. n. 40 (A/40/40), p. 162.

276 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), pp. 1-726. Recta ratio and universalism, present in the jusnaturalist thinking of the “founding fathers” of international law (F. de Vitoria, F. Suárez, H. Grotius, among others), go far back in time to the legacies of Cicero, in his characterization of recta ratio in the foundations of jus gentium itself, and of Thomas Aquinas, in his conception of synderesis, as predisposition of human reason to be guided by principles in the search of the common good; ibid., pp. 10-14.

277 Ibid., ch. XI, pp. 275-288; A.A. Cançado Trindade, “Quelques réflexions sur l’humanité comme sujet du droit international”, in Unité et diversité du Droit international – Écrits en l’honneur du Prof. P.-M. Dupuy (eds. D. Alland, V. Chetail, O. de Frouville and J.E. Viñuales), Leiden, Nijhoff, 2014, pp. 157-173.

278 Cf., to this effect, C.A.J. Coady, “Natural Law and Weapons of Mass Destruction”, in Ethics and Weapons of Mass Destruction– Religious and Secular Perspectives (eds. S.H. Hashmi and S.P. Lee), Cambridge, Cambridge University Press, 2004, p. 122, and cf. p. 113; and cf. also J. Finnis, J.M. Boyle Jr. and G. Grisez, Nuclear Deterrence, Morality and Realism, Oxford, Clarendon Press, 1987, pp. 77-103, 207-237, 275-319 and 367-390. In effect, contemporary expert writing has become, at last, very critical of the “failed strategy” of “deterrence”; cf., inter alia, e.g., [Various Authors,] At the Nuclear Precipice – Catastrophe or Transformation? (eds. R. Falk and D. Krieger), London, Palgrave/MacMillan, 2008, pp. 162, 209, 218 and 229; A.C. Alves Pereira, Os Impérios Nucleares e Seus Reféns: Relações Internacionais Contemporâneas, Rio de Janeiro, Ed. Graal, 1984, pp. 87-88, and cf. pp. 154, 209 and 217.

279 For an early study on this issue, cf. A.A. Cançado Trindade, “Co-Existence and Co-Ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)”, 202 Recueil des Cours de l’Académie de Droit International de La Haye (1987), ch. XI, pp. 271-283. And for subsequent developments on the notion of potential victims, cf. A.A. Cançado Trindade, The Access of Individuals to International Justice, Oxford, Oxford University Press, 2012 [reprint], ch. VII, pp. 125-131.

280 Articles VIII-XI, in turn, are procedural in nature.

281 In particular the speech of President D. D. Eisenhower (U.S.) to the U.N. General Assembly in 1953, as part of his plan “Atoms for Peace”; cf., e.g., I. Chernus, Eisenhower’s Atoms for Peace, [Austin,] Texas A&M University Press, 2002, pp. 3-154.

282 J. Burroughs, The Legal Framework for Non-Use and Elimination of Nuclear Weapons, [N.Y.], Greenpeace International, 2006, p. 13.

283 H. Williams, P. Lewis and S. Aghlani, The Humanitarian Impacts of Nuclear Weapons Initiative: The ‘Big Tent’ in Disarmament, London, Chatam House, 2015, p. 7; D.H. Joyner, “The Legal Meaning and Implications of Article VI of the Non-Proliferation Treaty”, in: Nuclear Weapons and International Law (eds. G. Nystuen, S. Casey-Maslen and A.G. Bersagel), Cambridge, Cambridge University Press, 2014, pp. 397, 404 and 417, and cf. pp. 398-399 and 408; and cf. D.H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, Oxford, Oxford University Press, 2013 [reprint], pp. 2, 104 and 126, and cf. pp. 20, 26-29, 31, 97 and 124.

284 A.A. Cançado Trindade, Évolution du Droit international au droit des gens — L´accès des particuliers à la justice internationale: le regard d’un juge, Paris, Pédone, 2008, pp. 1-187.

285 IACtHR, case of the Community Moiwana versus Suriname (Judgment of 15.06.2005), Separate Opinion of Judge Cançado Trindade, paras. 6-7.

286 Ibid., paras. 6-7.

287 Cf. comments of A.A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça, Rio de Janeiro, Edit. Renovar, 2015, pp. 463-468.

288 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), pp. 137-138.

289 U.N., United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations — Official Records, vol. I (statement by the Representative of Brazil, A.A. Cançado Trindade, of 12.03.1986), pp. 187-188, para. 18.

290 Application Instituting Proceedings, p. 24, para. 66; and Memorial, pp. 29, 56-60, 61, 63, 68-69, 71 and 73, paras. 50, 123-128, 130, 136, 150, 153, 154, 161-162 and 168; and Statement of Observations on [U.K.’s] Preliminary Objections, pp. 15 and 47, paras. 32 and 126.

291 Preliminary Objections, pp. 1-2, 10 and 23, paras. 2-3, 21 and 50.

292 Counter-Memorial, p. 15, para. 23 n. 49, and Annex 23.

293 ICJ. doc. CR 2016/1, of 07.03.2016, pp. 26-27 and 50, paras. 9 and 17 (M.I.); ICJ. doc. CR 2016/6, of 14.03.2016, p. 32, para. 10 (M.I.).

294 ICJ. doc. CR 2016/5, of 11.03.2016, p. 47, para. 8 (M.I.).

295 ICJ. doc. CR 2016/4, of 10.03.2016, p. 14, para. 3 (India).

296 ICJ. doc. CR 2016/7, of 09.03.2016, pp. 14-16 and 18-19, paras. 20, 22, 24, 32 and 37 (United Kingdom).

297 For an assessment of these earlier NPT Review Conferences, cf. H. Müller, D. Fischer and W. Kötter, Nuclear Non-Proliferation and Global Order, Stockholm-Solna/Oxford, SIPRI/Oxford University Press, 1994, pp. 31-108.

298 Decision 2, NPT/CONF.1995/32 (Part I), Annex, p. 2.

299 Final Document, part II, p. 257, paras. 3-3ter., and cf. pp. 258 and 260, paras. 4 and 9.

300 Ibid., pp. 271-273, paras. 36-39.

301 NPT/CONF.2000/4, paras. 12-13.

302 Final Document, vol. 1, part I, pp. 14-15.

303 The “13 Practical Steps”, moreover, affirm that the principle of irreversibility should apply to all nuclear disarmament and reduction measures. At last, the 13 practical steps reaffirm the objective of general and complete disarmament under effective international control, and stress the importance of both regular reports on the implementation of NPT’s Article VI obligations, and the further development of verification capabilities.

304 NPT/CONF.2005/57, part I, and cf. report on the 2005 Review Conference in: 30 U.N. Disarmament Yearbook (2005) ch. I, p. 23.

305 Hans Blix, Why Disarmament Matters, Cambridge, Mass./London, Boston Review/MIT, 2008, pp. 6 and 63.

306 Cf. U.N. Secretary-General (Ban Ki-moon), Address (at a conference at the East-West Institute): “The United Nations and Security in a Nuclear-Weapon-Free World”, in U.N. News Centre, of 24.10.2008, pp. 1-3.

307 It added that this could be pursued either by an agreement on “a framework of separate, mutually reinforcing instruments”, or else by negotiating “a nuclear-weapons convention, backed by a strong system of verification, as has long been proposed at the United Nations” (para. 2).

308 On two other occasions, namely, during a Security Council Summit on Nuclear Non-Proliferation on 24.09.2009, and at a Conference organized by the East-West Institute on 24.10.2011.

309 U.N. Secretary-General (Ban Ki-moon), “Opening Remarks to the Security Council Summit on Nuclear Non-Proliferation and Nuclear Disarmament”, in U.N. News Centre, of 24.09.2009, pp. 1-2.

310 D.H. Joyner, “The Legal Meaning and Implications of Article VI of the Non-Proliferation Treaty”, in: Nuclear Weapons and International Law (eds. G. Nystuen, S. Casey-Maslen and A.G. Bersagel), Cambridge, Cambridge University Press, 2014, pp. 413 and 417.

311 NPT/CONF.2010/50, vol. I, pp. 12-14 and 19-20.

312 Cf. 2010 Review Conference — Final Document, vol. I, doc. NPT/CONF.2010/50, of 18.06.2010, p. 12, para. 80.

313 Cf. ibid., p. 15, para. 99.

314 Ibid., p. 21, point (i).

315 Ibid., p. 19, point (v).

316 ICRC, “Eliminating Nuclear Weapons”, Statement — 2015 Review Conference of the Parties to the NPT, of 01.05.2015, p. 1.

317 Ibid., pp. 2-3.

318 2015 Review Conference — Working Paper of the Chair of Main Committee I, doc. NPT/CONF.2015/MC.I/WP.1, of 18.05.2015, p. 3, para. 17.

319 Ibid., p. 5, para. 27.

320 Ibid., p. 5, para. 35.

321 Ibid., p. 6, para. 43.

322 Ibid., p. 7, paras. 45-46(1).

323 Application Instituting Proceedings of the M.I., p. 26, para. 73; and Memorial of the M.I., pp. 40, 53 and 56, paras. 84, 117 and 122.

324 Preliminary Objections of the U.K., p. 2, para. 4.

325 On the initial moves in the U.N. to this effect, by Brazil (in 1962) and Mexico (taking up the leading role from 1963 onwards), cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. infra n. (286), pp. 116, 20 and 139.

326 The first one concerning the States internationally responsible for territories located within the limits of the zone of application of the Treaty, and the second one pertaining to the nuclear-weapon States.

327 A. García Robles, “Mesures de désarmement dans des zones particulières: le Traité visant l’interdiction des armes nucléaires en Amérique Latine”, 133 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1971) p. 103, and cf. p. 71.

328 Ibid., p. 99, and cf. p. 102.

329 Which was originally prompted by a reaction to the Cuban missiles crisis of 1962.

330 Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y./Geneva, U.N.-OPANAL/UNIDIR, 1997, pp. 9, 25, 39 and 153.

331 Those Protocols contain the undertaking not only not to use nuclear weapons, but also not to threaten their use; cf. M. Roscini, op. cit. infra (n. 295), pp. 617-618.

332 The Treaty of Tlatelolco has in addition counted on its own regional organism to that end, the Organism for the Prohibition of Nuclear Weapons in Latin America (OPANAL).

333 Cf., in general, M. Roscini, Le Zone Denuclearizzate, Torino, Giappichelli Ed., 2003, pp. 1-410; J. Goldblat, “Zones exemptes d’armes nucléaires: une vue d’ensemble”, in Le droit international des armes nucléaires (Journée d’études, ed. S. Sur), Paris, Pédone, 1998, pp. 35-55.

334 Upon the initiative of Australia.

335 M. Hamel-Green, “The South Pacific — The Treaty of Rarotonga”, in Nuclear Weapons-Free Zones (ed. R. Thakur), London/N.Y., MacMillan/St. Martin’s Press, 1998, p. 59, and cf. p. 62.

336 Ibid., pp. 77 and 71.

337 This extended territorial scope has generated resistance on the part of nuclear-weapon States to accept its present form; A. Acharya and S. Ogunbanwo, “The Nuclear-Weapon-Free Zones in South-East Asia and Africa”, in Armaments, Disarmament and International Security — SIPRI Yearbook (1998) pp. 444 and 448.

338 Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra n. (286), pp. 60-61; and cf. J. O. Ihonvbere, “Africa — The Treaty of Pelindaba”, in Nuclear Weapons-Free Zones, op. cit. supra n. (291), pp. 98-99 and 109. And, for a general study, cf. O. Adeniji, The Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone, Geneva, UNIDIR, 2002, pp. 1-169.

339 M. Roscini, “Something Old, Something New: The 2006 Semipalatinsk Treaty on a Nuclear Weapon-Free Zone in Central Asia”, 7 Chinese Journal of International Law (2008) p. 597.

340 As to their shortcomings, cf., e.g., J. Goldblat, “The Nuclear Non-Proliferation Régime: Assessment and Prospects”, 256 Recueil des Cours de l’Académie de Droit International de La Haye (1995) pp. 137-138; M. Roscini, op. cit. supra n. (295), pp. 603-604.

341 J. Enkhsaikhan, “Nuclear-Weapon-Free Zones: Prospects and Problems”, 20 Disarmament — Periodic Review by the United Nations (1997) n. 1, p. 74.

342 Cf., e.g., H. Fujita, “The Changing Role of International Law in the Nuclear Age: from Freedom of the High Seas to Nuclear-Free Zones”, in Humanitarian Law of Armed Conflict: Challenges Ahead  —Essays in Honour of F. Kalshoven (eds. A.J.M. Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991, p. 350, and cf. pp. 327-349.

343 J. Prawitz, “Nuclear-Weapon-Free Zones: Their Added Value in a Strengthened International Safeguards System”, in Tightening the Reins — Towards a Strengthened International Nuclear Safeguards System (eds. E. Häckel and G. Stein), Berlin/Heidelberg, Springer-Verlag, 2000, p. 166.

344 Cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra n. (286), pp. 27, 33-38 and 134.

345 U.N., Report of the Disarmament Commission — General Assembly Official Records (54th Session, supplement n. 42), U.N. doc. A/54/42, of 06.05.1999,Annex I, pp. 6-7, paras. 1, 6 and 9.

346 Ibid., p. 7, paras. 10-11 and 13.

347 Ibid., Annex II, p. 11 3rd preambular paragraph.

348 Ibid., Annex I, p. 7, para. 5; and p. 8, para. 28.

349 Ibid., p. 9, para. 36.

350 Ibid., p. 9, para. 41.

351 Ibid., p. 9, para. 45.

352 Cf. G. Venturini, “Control and Verification of Multilateral Treaties on Disarmament and Non-Proliferation of Weapons of Mass Destruction”, 17 University of California Davis Journal of International Law and Policy (2011) pp. 359-360.

353 E.g., in Central and Eastern Europe, in the Middle East, in Central and North-East and South Asia, and in the whole of the southern hemisphere.

354 Cf. A. Acharya and S. Ogunbanwo, op. cit. supra n. (293), p. 443; J. Enkhsaikhan, op. cit. supra n. (297), pp. 79-80. Mongolia in effect declared its territory as a nuclear-weapon-free zone (in 1992), and in February 2000 adopted national legislation defining its status as a nuclear-weapon-free State. This was acknowledged by U.N. General Assembly resolution 55/33S of 20.11.2000.

355 In: https://www.regjeringen.no/globalassets/upload/ud/vedlegg/hum/hum_india.pdf.

356 For accounts of the work of the 2013 Oslo Conference, cf., e.g., Viewing Nuclear Weapons through a Humanitarian Lens (eds. J. Borrie and T. Caughley), Geneva/N.Y., U.N./UNIDIR, 2013, pp. 81-82, 87, 90-91, 93-96, 99, 105-108 and 115-116.

357 Norway/Ministry of Foreign Affairs, Chair´s Summary — Humanitarian Impact of Nuclear Weapons, Oslo, 05.03.2013, p. 2.

358 In: https://www.regjeringen.no/en/aktuelt/nuclear_summary/id716343/.

359 Marshall Islands’ Statement, Second Conference on the Humanitarian Impact of Nuclear Weapons, Nayarit, Mexico, 13-14 February 2014 (in: http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/nayarit-2014/statements/MarshallIslands.pdf). The text is also quoted by the Marshall Islands in its Memorial in Marshall Islands versus United Kingdom, Annex 72.

360 In: http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf. And the Marshall Islands’ Minister of Foreign Affairs (Ph. Muller) added that “It should be our collective goal as the United Nations to not only stop the spread of nuclear weapons, but also to pursue the peace and security of a world without them. Further, the Republic of the Marshall Islands has recently ratified the Comprehensive Test Ban Treaty and urges other member States to work towards bringing this important agreement into force.

The Marshall Islands is not the only nation in the Pacific to be touched by the devastation of nuclear weapon testing. (...) We express again our eventual aspirations to join with our Pacific neighbours in supporting a Pacific free of nuclear weapons in a manner consistent with international security” (pp. 1-2).

361 Memorial of the M.I. in Marshall Islands versus United Kingdom, para. 99.

362 Mexico/Gobierno de la República, Chair’s Summary — Second Conference on the Humanitarian Impact of Nuclear Weapons, Mexico, 14.02.2014, pp. 2-3.

363 On behalf of the International Campaign to Abolish Nuclear Weapons (ICAN), a coalition of over 350 entities in 90 countries.

364 For example, for its part, India favoured a step-by-step approach towards the elimination of nuclear weapons, ultimately leading to “a universal, non-discriminatory Convention on prohibition and elimination of nuclear weapons”; cf. www.reachingcriticalwill.org/images/documents/Disarmament-fora/nayarit-2014/statements/India.pdf.

365 Cf.http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/nayarit-2014/chairs-summary.pdf.

366 Cf. Vienna Conference on the Humanitarian Impact of Nuclear Weapons (08-09 December 2014), Vienna, Austria’s Federal Ministry for Europe, Integration and Foreign Affairs, 2015, p. 19.

367 Ibid., p. 34.

368 Ibid., p. 58.

369 Ibid., p. 17.

370 Statement reproduced in ibid., p. 16.

371 Cf. ibid. pp. 1-88.

372 Ibid., pp. 5-7.

373 In:http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/-HINW14/HINW14Vienna_Pledge _Document.pdf. The Pledge only refers to States’ obligations under the NPT and makes no mention of customary international law.

374 http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/-HINW14/HINW14.

375 Encompassing measures relating to any use, threat of use, development, production, acquisition, possession, stockpiling and transfer of nuclear weapons.

376 From around 16.300 nuclear warheads in 2014 to 15,850 in 2015, and to 15,395 in early 2016.

377 Cf. SIPRI Yearbook 2016: Armaments, Disarmament and International Security, Stockholm-Solna, SIPRI, 2016, ch. 16, pp. 609-667.

378 ILPI, Evidence of Catastrophe — A Summary of the Facts Presented at the Three Conferences on the Humanitarian Impact of Nuclear Weapons, Oslo, ILPI, 2015, p. 15.

379 U.N. General Assembly, doc. A/C.1/70/L.13/Rev.1, of 29.10.2015, pp. 1-3.

380 Preamble, paras. 8 and 14-15.

381 Operative part, para. 2.

382 For an account, cf., e.g., inter alia, J. Lukacs, L’héritage de la Seconde Guerre Mondiale, Paris, Ed. F.-X. de Guibert, 2011, pp. 38-39, 55, 111 and 125-148 ; and cf. I. Kershaw, To Hell and Back — Europe 1914-1949, London, Penguin, 2016, pp. 7, 356, 407, 418, 518 and 521.

383 R. Aron, Paz e Guerra entre as Nações [1962], Brasília, Edit. Universidade de Brasília, 1979, pp. 413, 415, 421-422 and 610. R. Aron’s book contains his reflections on the new age of nuclear weapons, amidst the tensions of the cold-war era, and the new challenges and dangers it imposed, — persisting to date, — for the future of humankind; cf., for the French edition, R. Aron, Paix et guerre entre les nations, 8th ed., Paris, Éd. Calmann-Lévy, 2015, pp. 13-770.

384 On the principle of self-determination of peoples, namely, G.A. resolutions 1514(XV) of 14.12.1960, and 2145(XXI) of 27.10.1966; cf. I.C.J. Reports 1971 pp. 31, 45 and 49-51.

385 Cf. I.C.J. Reports 1975 pp. 20, 23, 26-37, 40, 57 and 67-68.

386 Cf. I.C.J. Reports 1975 pp. 171-172, paras. 86-88.

387 Cf. I.C.J. Reports 2010 p. 437, para. 80 (addressing a General Assembly resolution “which reflects customary international law”).

388 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), p. 137, and cf. p. 138; and cf. R. Huesa Vinaixa, El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho Internacional Contemporáneo, Valencia, Tirant lo Blanch, 1991, pp. 30-31 and 36-38, and cf. pp. 76-77, 173, 192, 194, 199 and 204-205; R. E. Piza Escalante, “La ‘Opinio Juris’ como Fuente Autónoma del Derecho Internacional (‘Opinio Juris’ y ‘Jus Cogens’)”, 39 Relaciones Internacionales — Heredia/C.R. (1992) pp. 61-74; J. I. Charney, “International Lawmaking — Article 38 of the ICJ Statute Reconsidered”, in New Trends in International Lawmaking — International ‘Legislation’ in the Public Interest (Proceedings of the Kiel Symposium, March 1996), Berlin, Duncker & Humblot, 1997, pp. 180-183 and 189-190.

389 Wang Tieya, “The Third World and International Law”, in The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (eds. R.St.J. Macdonald and D.M. Johnston), The Hague, M. Nijhoff, 1983, p. 964.

390 Ibid., pp. 964-965.

391 B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 British Year Book of International Law (1987) p. 80, and cf. pp. 116, 137 and 141.

392 For example, in the course of the proceedings in the Nuclear Tests cases (1973-1974), one of the applicant States (Australia) recalled, in the public sitting of 08.07.1974, that the ICJ had held, in the North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 41), that a conventional norm can pass into the general corpus of international law thus becoming also a rule of customary international law; cf. ICJ, Pleadings, Oral Arguments, Documents— Nuclear Tests cases (vol. I: Australia versus France, 1973-1974), p. 503. In effect, — may I add, — just as a customary rule may later crystallize into a conventional norm, this latter can likewise generate a customary rule. International law is not static (as legal positivists wrongfully assume); it is essentially dynamic.

393 A.A. Cançado Trindade, “Contemporary International Law-Making: Customary International Law and the Systematization of the Practice of States”, in Sources of International Law (Thesaurus Acroasium, vol. XIX), Thessaloniki, Institute of Public International Law and International Relations, 1992, pp. 68 and 71.

394 Ibid., pp. 78-79.

395 Ibid., pp. 126-129.

396 Ibid., pp. 128-129. And cf., more recently, in general, A.A. Cançado Trindade, “The Contribution of Latin American Legal Doctrine to the Progressive Development of International Law”, 376 Recueil des Cours de l’Académie de Droit International de La Haye (2014) pp. 9-92, esp. pp. 75-76.

397 Cf., in this sense, A.A. Cançado Trindade, Direito das Organizações Internacionais, 6th rev. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2014, pp. 51 and 530-531.

398 A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra n. (120), pp. 129-138.

399 A.A. Cançado Trindade, A Humanização do Direito Internacional, 2nd rev. ed., Belo Horizonte/Brazil, 2015, pp. 6-24; A.A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça, op. cit. supra n. (243), pp. 410-418.

400 A.A. Cançado Trindade, Direito das Organizações Internacionais, op. cit. supra n. (353), pp. 530-537.

401      List updated until 6 January 2017.