The Uncertain Adjudicatory Future of Article VI of the Non-Proliferation Treaty

[Dr Alexander Gilder is a Lecturer in Law at Royal Holloway, University of London and Co-Convenor of the International Law Section of the Society of Legal Scholars (UK). He tweets @DrAlexGilder.]

In 2016 the International Court of Justice (ICJ or ‘the Court’) found it had no jurisdiction in the Marshall Islands’ proceedings against India, Pakistan, and the United Kingdom. Since then academics have assessed, for example, whether there has been a turn to formalism in the existence of a dispute and the difficulty of political issues before international courts. However, there are other aspects of the judgment that deserve additional attention, particularly given the perceived ineffectiveness of Article VI of the Non-proliferation Treaty (NPT) after the Marshall Islands’ unsuccessful attempts to find international responsibility for the nuclear weapon states’ failure to disarm.

This post examines some important problems for Article VI, which have been further exacerbated by the Marshall Islands cases. The point to be made is simply that the ICJ has created a currently irreconcilable issue with the adjudication of Article VI that perpetuates nuclear deterrence. In particular, the effect of the ICJ’s finding in Legality of the Threat or Use of Nuclear Weapons that Article VI requires states to successfully conclude negotiations to disarm combined with the Monetary Gold principle presents a conundrum that will, in the future, need to be addressed by the Court.

The ICJ’s findings in relation to the obligations under Article VI

Article VI NPT, reads as follows,

[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

When interpreting this Article, the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons concludes “[t]here 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.” Due to this finding the Marshall Islands claimed there is an obligation in customary international law on the cessation of the nuclear arms race at an early date that is rooted in Article VI.

Commentators have discussed whether Article VI in fact requires nuclear weapon states to achieve a precise result and disarm, as the ICJ has suggested. The issue here is whether Article VI constitutes a pactum de contrahendo or pactum de negotiando with the latter not requiring parties to reach an agreement but instead to only negotiate in good faith. Nevertheless, in the Marshall Islands cases the ICJ confirmed the finding in the 1996 Advisory Opinion that there existing a pactum de contrahendo to bring to a conclusion negotiations leading to nuclear disarmament.

The quandary of multilateral negotiations under Article VI

The ICJ’s interpretation of Article VI in Legality of the Threat or Use of Nuclear Weapons has created a quandary. A quandary which could have been but was not resolved by the Marshall Islands cases. The quandary is that the pactum de contrahendo created by the ICJ in 1996 arguably cannot be successfully adjudicated without further clarification from the Court on the exact nature of Article VI. This is because of the longstanding principle from Monetary Gold that the ICJ will not pass judgment on contentious cases where the interests of third parties, states not party to the current contentious case, are engaged. Under the principle, the Court cannot take a decision which would undertake “an evaluation of the lawfulness of the conduct of another State which is not a party to the case.” In its preliminary objections in the Marshall Islands the UK relied heavily on Monetary Gold as a method of excluding the admissibility of the case on the basis that the other nuclear weapon states had not accepted the ICJ’s jurisdiction.

International lawyers know well the thorny nature of the ICJ’s jurisdiction and the possibility of all nuclear weapon states accepting jurisdiction either through recognising the compulsory jurisdiction of the Court or through the doctrine of forum prorogatum are slim. China, Russia, France, and the US have not made declarations accepting the compulsory jurisdiction of the Court and declined to accept the ICJ’s jurisdiction for the proceedings instituted by the Marshall Islands in 2014.

Following the logic of Monetary Gold the Court could then not have made an order in the Marshall Islands cases requiring India, Pakistan and the UK to conclude negotiations to disarm as there would be no practical way for nuclear weapon states to unilaterally achieve this goal. The UK described the Marshall Islands’ claim as in fact not based on the relationship between the UK and Marshall Islands but instead a claim concerning the UK and its relationship with the other nuclear weapon states. The UK therefore set out its own practical limitations and suggested the Court would need to narrow any order made to fit squarely in the limitations of the UK’s unilateral capabilities. 

The consideration of Monetary Gold by the ICJ in the Marshall Islands

This issue was discussed by Judge Peter Tomka in his separate opinion in the Marshall Islands case.  Tomka recognises the reality that where nuclear weapons are concerned a state will not disarm unilaterally and place itself at risk. Tomka was therefore “convinced that the Court cannot meaningfully engage in a consideration of the United Kingdom’s conduct when other States – whose conduct would necessarily also be at issue – are not present before the Court to explain their positions and actions.” 

Judge James Crawford concluded in his dissenting opinion that the Court could determine a third state has breached an obligation but of course there would be no way of enforcing such a decision where the third state has not accepted jurisdiction. Crawford also suggested the scope and application of Article VI would need to be addressed in further detail to determine in the merits to see if such a decision could be taken against a third state.  Judges Xue Hanqin and Dalveer Bhandari also agreed with the respondents that the Monetary Gold principle applies to the case and should have been directly addressed by the Court at the preliminary stage.  In particular, Judge Bhandari explained,

[t]he other countries, who possess the other more than 97 per cent of the nuclear weapons in the world, are not before the Court and consequently the Court is precluded from exercising its jurisdiction in this matter with respect to those States (the States possessing 97 per cent of the nuclear weapons). Therefore, it is indispensable to have the participation of the other countries who possess such a large quantity of the world’s nuclear weapons.

For Judge Bhandari the UK’s objections under Monetary Gold were substantial, but the ICJ has potentially missed its opportunity to adjudicate the issue.

The Court has created a situation where nuclear proliferation may persist in perpetuity. Applicants wishing to find state responsibility for nuclear weapon states failing to comply with Article VI are at a double loss. First, if the ICJ persists with its finding that Article VI constitutes a pactum de contrahendo then any future case would likely focus heavily on the Monetary Gold principle. The fact one state cannot conclude negotiations unilaterally means a strong argument can be made that the respondent has not acted in bad faith due to the failures of all nuclear weapon states. Second, if Article VI is found to constitute a pactum de negotiando an applicant would fail in a claim that asserts Article VI requires the conclusion of an agreement to disarm. Instead, the applicant would need to prove the respondent had acted in bad faith during negotiations, a difficult feat given the indeterminacy of good faith as a concept in international law.

What is most confusing about the ICJ’s stance on Article VI is that it is simply illogical to conclude the Article implies an end result but then for multiple judges to speculate the Court would be unable to adjudicate such a multilateral obligation without all nuclear weapons states present. In relation to the disputes between the Marshall Islands and the nuclear weapon states, Alberto Alvarez-Jimenez makes clear the Court “took no measure to prevent this situation from becoming permanent.”

More generally, multiple additional opinions from the judges that speculate on these issues can be enlightening for academics but problematic for dispute settlement. Hemi Mistry has expounded the issue of ICJ judges giving numerous additional opinions discussing how judicial disagreement over the applicable law can lead to lessened legitimacy of the Court’s output and consequently many questions will continue to be asked about Article VI.  The differing views of the individual judges does not lend well to any suggestion that Article VI is a settled area of international law and it is a difficult to see how any future cases concerning the Article can proceed to the merits.

With such a contentious issue such as nuclear proliferation it is unwise for the Court to disagree in multiple additional opinions and then pass the buck to be pursued multilaterally among the different nuclear states.  Nevertheless, the obligation, whether it’s a pactum de negotiando or contrahendo, and the role of Monetary Gold, are legal questions that require further consideration from the ICJ.  If the Court shies away from the issue of nuclear proliferation under the NPT states may simply further stall negotiations as proliferation is only a peripheral issue for some. The difficulty over Article VI is not the complete fault of the Court and partial blame could be attributed to the language of the NPT, but a resolution to adjudicating Article VI may be needed in the future and it will need to come from the ICJ.

Conclusion

The conundrum of how to adjudicate Article VI will persist for a number of years to come, particularly given how nuclear proliferation is a sensitive issue for various populations and the refusal of the nuclear weapon states to sign the Treaty on the prohibition of nuclear weapons. In his dissenting opinion in the Marshall Islands, Judge Antônio Augusto Cançado Trindade argued the Court “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.”  Trindade’s suggestion may impassion many but as this post has highlighted the Court would have faced a number of difficult questions if the Marshall Islands cases had proceeded to the merits. But these are difficult questions which will need answers. Holding only some of the world’s nuclear powers responsible for failing to conclude negotiations would have produced similar negative critiques of the Court as we have seen arising from the Court’s finding that there was no dispute. As it stands, the requirement imposed by the ICJ to conclude negotiations is a hurdle it has sought to avoid addressing.