A shared obligation to negotiate (and achieve?) nuclear disarmament

 Posted by: Nedeski Nataša

Every year since the International Court of Justice’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the UN General Assembly has adopted by a large majority a follow-up resolution. Each resolution reiterates that ‘the continuing existence of nuclear weapons poses a threat to humanity and all life on Earth’, and underlines ‘the unanimous conclusion of the International Court of Justice 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’. The ICJ derived this obligation from Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which provides that

[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.

On 24 April 2014 the Republic of the Marshall Islands (RMI) instituted legal proceedings before the ICJ against nine nuclear weapons possessing states: France, India, Pakistan, the United Kingdom, the United States, Israel, China, Russia and North Korea. The Application states that their failure to pursue and conclude negotiations leading to complete nuclear disarmament amounts to a continuing breach of the obligations enshrined in Article VI NPT (to which five of these states are parties), as well as of identical obligations that exist separately under customary international law. Only Pakistan, the UK and India have accepted the compulsory jurisdiction of the ICJ (albeit with several reservations); the remaining six states have been requested to accept the jurisdiction of the Court.

Assuming that the potential barriers to jurisdiction and admissibility would be overcome, the initiation of these proceedings calls for some reflection on the substantive content of the shared obligation(s) arising from Article VI NPT (and, if they indeed exist, identical obligations under customary international law). As the total elimination of nuclear weapons cannot be achieved by any state in isolation, Article VI NPT requires all states parties to take part in overall disarmament efforts. But while it is clear that nuclear disarmament is a goal that can only be achieved through the combined action of all states, it remains uncertain what action is legally required of them. There exist a variety of conflicting views as to ‘what state behaviour is required to meet the nuclear disarmament obligation’.[1] Arguably, this lack of clarity has contributed to the overall failure of nuclear weapon states to take concrete steps towards the common goal of nuclear disarmament.

It has been argued that Article VI NPT ‘merely’ gives rise to an obligation to negotiate in good faith – a pactum de negotiando – which obliges individual duty-bearers to make a genuine effort towards coming to an agreement, but ‘does not imply an obligation to reach an agreement’.[2] However, in its Nuclear Weapons Advisory Opinion the ICJ has held that the legal import of Article VI NPT ‘goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith’[3]. It subsequently qualified Article VI NPT as giving rise to ‘a two-fold obligation to pursue and conclude negotiations’.[4] These passages have been used to support the argument that Article VI NPT gives rise to a pactum de contrahendo – an obligation of states parties to conclude an international agreement on complete nuclear disarmament.

The difference between these two interpretations of Article VI NPT is far from negligible. An obligation to negotiate in good faith is generally considered to be an obligation of conduct, which entails that each duty-bearer can independently fulfil or breach its obligation by conducting or failing to conduct negotiations in good faith. It would be perfectly possible for one duty-bearer to fulfil its obligation by negotiating in good faith whereas another breaches its obligation by failing to do so (though how a state may demonstrate good faith will of course be up for discussion). In the end, whether or not negotiations bring about a certain result does not have a necessary bearing on the fulfilment (or breach) of the obligation to negotiate.

This seems to be different when it comes to the obligation to conclude negotiations and achieve the result of ‘nuclear disarmament in all its aspects’. If Article VI NPT indeed requires the achievement of such a result, the duty-bearers of this obligation will be highly dependent upon one another when it comes to complying with this requirement. The desired result of complete nuclear disarmament, whether or not through the conclusion of a multilateral treaty, cannot be brought about by a duty-bearer on its own; regardless of the amount of effort it puts in or the extent of good faith it displays (for example by unilaterally declaring that it will dispose of its entire nuclear arsenal). This would entail that the obligation cannot be fulfilled by any duty-bearer as long as the result of total nuclear disarmament has not been achieved. At the same time, it is not clear when this obligation would be breached, as no definitive timeframe has been set out within which negotiations should be concluded and/or complete nuclear disarmament should be achieved. Should a breach nevertheless be established, the question arises whether this would automatically result in shared responsibility for all duty-bearers.

The proceedings instituted by the RMI may provide the ICJ with an opportunity to clarify the substantive content of Article VI NPT. At first sight, the ICJ’s pronouncements in its Nuclear Weapons Advisory Opinion seem to support the argument that Article VI NPT gives rise to an obligation that goes beyond a ‘mere’ obligation to negotiate. But how far does that obligation go? Does it really require that the result of complete nuclear disarmament is achieved before duty-bearers can fulfil the obligation, regardless of the result achieved by each duty-bearer individually? Should nuclear disarmament necessarily be achieved through the conclusion of a multilateral treaty? And would a breach of the obligation to achieve nuclear disarmament entail that both nuclear weapon states and non-nuclear weapon states would share the resulting responsibility?

In the midst of these uncertainties, what does seem evident is that progress towards nuclear disarmament is occurring at a disturbingly slow pace. A clarification of what it is that states must do in order to comply with their legal obligations will make it more difficult to justify their inaction; hopefully bringing us one step closer to the collective goal of nuclear disarmament.

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[1] Legal Memorandum by the International Association of Lawyers Against Nuclear Arms and the International Human Rights Clinic Human Rights Program, Harvard Law School, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice (International Human Rights Clinic Human Rights Program, Harvard Law School, Cambridge, 2009) at 4. Available at http://www.un.org/disarmament/education/docs/goodfaithnegs.pdf.

[2] Railway Traffic Between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J. Series A/B No. 42, p. 108, at p. 116.

[3] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at para. 99 (emphasis added).

[4] Ibid., at para. 100 (emphasis added).

The responsibility of third states concerning the Israeli occupation of the Palestinian Territories

 Posted by: Schechinger Jessica

On Thursday evening 13 June 2013, the third SHARES Debate entitled The Israeli occupation of the Palestinian Territories: is there a responsibility for the Netherlands? was held in Amsterdam. This blog post will highlight parts of the debate.

Background

The continuing Israeli occupation of the West Bank, the Gaza Strip and East-Jerusalem, and the expansion of settlements raise the question as to what the responsibility is of other states. Due to the asymmetry of this conflict, it would appear that it can only be resolved through the intervention of third parties.

This SHARES debate addressed the role of third states in general, and the Netherlands in particular. The focus on the Netherlands was justified not only because the Netherlands attaches great importance to the promotion of the international rule of law, but also because it maintains close relations with both Israel and the Palestinian Authority.

The panel consisted of two eminent speakers: Laurens Jan Brinkhorst and John Dugard. André Nollkaemper acted as moderator.

The debate

In his individual talk, professor Dugard focused primarily on the international legal issues, while professor Brinkhorst discussed the political issues surrounding the occupation of the Palestinian Territories.

THIRD STATE OBLIGATIONS AND INTERNATIONAL LAW

Professor Dugard discussed the obligations of third states (placing emphasis on the Netherlands) in relation to the Israeli occupation of the Palestinian Territories, from the perspective of international law.

Dugard argued that in order for the third state obligations under the ILC Articles on Responsibility of States for Internationally Wrongful Acts (hereafter ASR) to be applicable in the present case, three elements need to be fulfilled. First, there must be conduct in breach of an international obligation; second, this conduct needs to be attributable to Israel; and third, in the context of article 41 ASR, the act must also be an international wrong of a serious nature (a violation of a norm of jus cogens). In Dugard’s view, the law and the facts are clear because the construction of settlements, the transfer of settlers, and the construction of the wall are all considered illegal under international law. These acts are international wrongs of a serious nature and attributable to Israel. The de facto annexation of the Occupied Territories, the denial of the Palestinian people’s right to self-determination and the existence of segregation, amounting to an ‘apartheid’ system, are considered violations of peremptory norms.

This situation triggers obligations of third states under international law deriving in part from international humanitarian law. Article 1[1] of the 4th Geneva Convention on the treatment of civilians in armed conflict, entailing the obligation for states parties to the Geneva Convention to respect and ensure respect for the present Convention, is relevant in the present case. In addition, article 41[2] of the ASR is of importance, since it obliges states to cooperate to bring an end to an unlawful situation amounting to a violation of jus cogens, not to recognise an unlawful situation, and not to render aid or assistance in maintaining an unlawful situation.

Dugard noted that although states have what he called a ‘margin of appreciation’ regarding their obligations, it has in practice led to states doing nothing. Although the United Nations Security Council, the United Nations General Assembly, the European Union (EU) and the United States (US) have condemned (meaning they do not recognise the lawfulness of) the Israeli settlement policy, to this date nothing has actually been done.

The illegality of what Dugard called the ‘settlement enterprise’ is confirmed in the 4th Geneva Convention, the Rome Statute, by the ICJ and the United Nations Human Rights Council. An independent fact-finding mission of the UN Human Rights Council has put the illegality of the wall and the Israeli settlements in the Occupied Territories as follows:

The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law as applicable in the Occupied Palestinian Territory, as recognized notably by the International Court of Justice in its advisory opinion of 9 July 2004.[3]

Furthermore, in its Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, the fact-finding mission recommended that states should not recognise an unlawful situation resulting from Israel’s violations of international law in the Occupied Palestinian Territories.[4]

PROHIBITION OF AID OR ASSISTANCE

With regard to article 16[5] ASR on aid or assistance in the commission of an internationally wrongful act, an aspect concerning the obligations of third states under international law, Dugard stressed that there is knowledge of the illegal circumstances and of what happens on the ground. Preserving an illegal situation can be seen as aiding or assisting in maintaining an unlawful situation. This was also recognised in paragraph 163 (3)(D) of the ICJ’s Advisory Opinion on the wall.

Dugard’s remarks on aid or assistance are in line with what Professor James Crawford has said earlier on obligations of European governments in general, and the UK in particular, concerning support for and involvement in settlement activity of Israel in the West Bank. In his opinion entitled Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories, Crawford concluded that involvement of a third state in Israel’s settlement activity, where characterised as recognition or aid or assistance, is incompatible with international law.[6] He however stressed that ‘it is doubtful whether States have any positive obligations to ensure Israel’s compliance with international humanitarian law. The ILC Articles require only collective action.’[7]

WHAT CONDUCT SHOULD STATES ADOPT?

Dugard also addressed the question of what conduct is required from third states in order not to be held responsible for wrongful conduct under international law.

On the issue of mandatory labelling of products that were produced in or come from settlements, Dugard went one step further and also said that states are obliged under international law to stop purchasing and selling these products, meaning that all such products must be banned from shops.

Currently a number of campaigns including an academic and cultural boycott of Israel (see e.g. here and here are taking place. Consumer boycott campaigns seeking to block the import of products that come from settlements might find Dugard’s argument helpful for their cause.[8] It could be interesting to see what would happen if a case was brought before a domestic court in the Netherlands (or elsewhere) against a supermarket chain for aiding and abetting an unlawful situation, because of selling products coming from Israeli settlements.

COUNTERMEASURES

Dugard further noted that, because of the illegality of the construction of settlements and the wall, states are entitled to take countermeasures under international law so as to put an end to these illegal acts. Termination of aviation or trade agreements are examples of countermeasures, but all such measures must be proportionate and may not involve the use of force. Brinkhorst noted that suspending the EU-Israel Association Agreement would be a possibility (article 2 of the agreement on human rights is relevant here). Twenty-three members of the European Parliament have indeed called for the suspension of the EU-Israel Association Agreement[9] on 11 March 2013 in a letter to Catherine Ashton, the High Representative of the EU for Foreign Affairs and Security Policy.

POLITICAL ISSUES AND THE VANISHING TWO-STATE SOLUTION

Professor Brinkhorst discussed the political issues surrounding the occupation of the Palestinian Territories. He observed that this is an asymmetric conflict with two parties who are not equal in terms of size, power and resources.

Brinkhorst argued that the US is not well-suited to provide a solution to the conflict given the fundamental divide in the US society on this issue. Other states should exercise their responsibility.

While many states, including the Netherlands and the EU, support the two-state solution, this solution becomes increasingly impossible due to the on-going expansion of the settlement policy. UN Secretary-General Ban Ki-moon recently called current plans of continued expansion of Israeli settlements ‘unhelpful’ and undermining the ‘progress towards the two-state solution’, and called on ‘Israel to heed the calls of the international community to freeze settlement activity and abide by its commitments under international law.’[10]

Brinkhorst noted that the Netherlands should, first, stop intensifying the bilateral relations until there is some change concerning the settlements, and second, stop blocking a European policy on the labelling of products. He also concluded that Europe has a special responsibility for the vanishing of the two-state solution.

Shared Responsibility?

Both presentations supported the view that all states have responsibilities with regard to the conflict. All states might be required by international law, as suggested by Dugard, to make sure that products must not only be labelled but also banned in their territories, which would amount to a de facto boycott of products coming from the Occupied Territories.

The question also arises as to whether the argument of Brinkhorst, that the Netherlands should stop intensifying the bilateral relations with Israel until there is some change concerning the settlements, can be applied to all states.

This debate emphasised (through the obligation not to aid or assist) that third states do have an obligation to do something. More can and must be done by states in order for them to live up to their obligations under international law, to ‘wake up’ Israel, and bring an illegal situation to an end.

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[1] Article 1 reads as follows: The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

[2] Article 41 on particular consequences of a serious breach of an obligation under part two, chapter III entitled: serious breaches of obligations under peremptory norms of general international law reads as follows: 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.

2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.

[3] Human Rights Council, UNGA/HRC/22/63 (7 February 2013), Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, conclusions, p. 21, paragraph 102, available here. See also conclusions, p. 21, paragraph 104: ‘The mission considers that, with regard to the settlements, Israel is committing serious breaches of its obligations under the right to self-determination and certain obligations under international humanitarian law, including the obligation not to transfer its population into the Occupied Palestinian Territory (…).’

[4] Ibid, report, recommendations, p. 23, paragraph 116: ‘The mission calls upon all Member States to comply with their obligations under international law and to assume their responsibilities in their relations with a State breaching peremptory norms of international law, and specifically not to recognize an unlawful situation resulting from Israel’s violations.’

[5] Article 16 reads: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and(b) the act would be internationally wrongful if committed by that State.

[6] James Crawford, Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories, Opinion, 24 January 2012, p. 58, paragraph 135.

[7] Ibid.

[8] A report entitled TRADING AWAY PEACE: How Europe helps sustain illegal Israeli settlements, published on 30 October 2012 by a consortium of 20 European NGO’s, concludes that although the EU is consistent in condemning the settlement policy, and defines the Israeli settlements in the Occupied Palestinian Territories as unlawful under international law, the policies of the EU help sustain the settlements because of trade with the Israeli settlements. This report recommends concrete measures that both the EU and individual member states can take in order to ensure that their policies do not either directly, or indirectly support the illegal Israeli settlements. This report is available here; see also here. For a recent development in the Netherlands concerning supermarket boycotts see here (in Dutch).

[9] See Crawford on the Association Agreement in his Opinion, note 6, p. 59, paragraph 138.

[10] United Nations Secretary-General, Latest Statements, Statement attributable to the Spokesperson for the Secretary-General on continued Israeli settlement activity in the West Bank, New York, 14 June 2013, see here.