Abstract
This chapter asserts that States placing themselves under the umbrella of nuclear-weapon States may not join the 2017 Treaty on the Prohibition of Nuclear Weapons without being in breach with one of its core provisions. The author considers four questions: How did the Treaty come to include a prohibition on threatened use? What does the prohibition mean for threatened self-defensive use of nuclear weapons under jus ad bellum? Does the prohibition cover nuclear deterrence? Does threatening to use nuclear weapons include threatening to have these weapons used on one’s behalf by its nuclear-armed ally? Whilst promoting universal adherence clearly coheres with the Treaty’s object and purpose, it is doubtful whether such considerations warrant a narrow construal in the hope that umbrella States would accede to the treaty without having to abandon their dependence on extended nuclear deterrence.
The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate … But even less could the contracting parties have intended to sacrifice the very object of the Convention in favour of a vain desire to secure as many participants as possible.
International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion Of 28 May 1951
Visiting Lecturer, United Nations Interregional Crime and Justice Research Institute, formerly Senior Legal Advisor, International Law and Policy Institute, Oslo; Visiting Professor, International University of Japan. This contribution is based on the presentation the author delivered at the University of Manitoba conference entitled ‘Human Dimensions and Perspectives in a Nuclear World: Legal Issues of Non-Proliferation, Disarmament and the Right to Nuclear Energy’, held in Winnipeg, Canada, on 12–13 October 2017. He gratefully acknowledges Jonathan Black-Branch and Dieter Fleck, as well as those present at the conference, for their encouragement and input. This author alone is responsible for any omission or error found in this piece.
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Notes
- 1.
See ‘Nuclear Weapons Ban Treaty “Accessible Even While under Nuclear Umbrella”, Says Negotiation Coordinator’, The Asahi Shimbun, 9 August 2017, https://digital.asahi.com/articles/ASK7X7DZ6K7XUHBI030.html.
- 2.
See, e.g., Nuclear Ban Daily, http://www.reachingcriticalwill.org/disarmament-fora/nuclear-weapon-ban/reports, Vol. 1, No. 2 (28 March 2017) (citing Ecuador, Cuba and Peru); Nuclear Ban Daily, Vol. 1, No. 3 (29 March 2017) (citing Nigeria and Trinidad and Tobago); statements made on 29 March 2017 (by Colombia, Costa Rica, Ecuador, Indonesia, the Philippines, South Africa, Sri Lanka, Thailand and Vietnam); Nuclear Ban Daily, Vol. 1, No. 4 (30 March 2017) (citing Bangladesh, Chile, Colombia, Cuba, Egypt, Guatemala, Indonesia, Iran, Liechtenstein, Malaysia, Peru, the Philippines, South Africa, Sri Lanka, Thailand, Venezuela and Vietnam); statements made on 31 March 2017 (by Fiji, Nepal and Timor Leste); working paper no. 4 (A/CONF.229/2017/WP.4) (10 May 2017) (by Papua New Guinea); Nuclear Ban Daily, Vol. 2, No. 3 (19 June 2017) (citing Algeria, Argentina, Bangladesh, Brazil, Chile, Cuba, Ecuador, Egypt, Guatemala, Indonesia, Kazakhstan, Mozambique, Nigeria, Palestine, the Philippines, Singapore, Thailand, Uganda, Vietnam); compilation of amendments received from States on Article 1 received as of 20 June, 10 pm (by Argentina, Cuba, Egypt, Fiji, Guatemala, Iran, Kazakhstan and Thailand).
- 3.
See, e.g., NGO working paper no. 2 (A/CONF.229/2017/NGO/WP.2 (17 March 2017) (by the Women’s International League for Peace and Freedom (WILPF)); NGO working paper no. 12 (A/CONF.229/2017/NGO/WP.12) (28 March 2017) (by the International Association of Lawyers against Nuclear Arms (IALANA)); statements made on 29 March 2017 (by WILPF and IALANA); Nuclear Ban Daily, Vol. 1, No. 4 (30 March 2017) (citing the Lawyers’ Committee on Nuclear Policy); NGO working paper no. 19 (A/CONF.229/2017/NGO/WP.19) (17 April 2017) (by Peace Boat); NGO working paper no. 21 (A/CONF.229/2017/NGO/WP.21) (20 April 2017) (by the International Physicians for the Prevention of Nuclear War (IPPNW)); NGO working paper no. 23 (A/CONF.229/2017/NGO/WP.23) (26 May 2017) (by Abolition des Armes Nucléaires – Maison de Vigilance); NGO working papers no. 26 (A/CONF.229/2017/NGO/WP.26) (7 June 2017) and no. 27 (A/CONF.229/2017/NGO/WP.27) (7 June 2017) (by the Los Alamos Study Group); NGO working paper no. 31 (A/CONF.229/2017/NGO/WP.31) (9 June 2017) (by the Center for International Security and Policy); NGO working paper no. 35 (A/CONF.229/2017/NGO/WP.35) (13 June 2017) (by Abolition des Armes Nucléaires – Maison de Vigilance); NGO working paper no. 30 (A/CONF.229/2017/NGO/WP.30) (8 June 2017) (by IPPNW); NGO working paper no. 39 (A/CONF.229/2017/NGO/WP.39) (14 June 2017) (by the New Age Peace Foundation); NGO working papers no. 37 (A/CONF.229/2017/NGO/WP.37) (16 June 2017) (by IALANA), no. 42 (A/CONF.229/2017/NGO/WP. 42) (16 June 2017) (by Peace Boat); statement made on 16 June 2017 (by WILPF); statement made on 19 June 2017 (by IALANA); and NGO working paper no. 47 (A/CONF.229/2017/NGO/WP.47) (27 June 2017) (by the Campagna Senzatomica and Rete Italiana per il Disarmo).
- 4.
See https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/06/Preamble-Article-1-21_compilation_-SA-proposal_29-June.docx (29 June 2017) (by Argentina and Iran).
- 5.
See ibid. (by Cuba and Thailand).
- 6.
See ibid. (by Egypt, Fiji and Guatemala).
- 7.
See ibid. (by Kazakhstan).
- 8.
See text available at https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/06/Article-1-30-June.pdf. (30 June 2017).
- 9.
See Nuclear Ban Daily, Vol. 2, No. 11 (3 July 2017).
- 10.
See A/CONF.229/2017/L.3 (3 July 2017) and A/CONF.229/2017/L.3/Rev.1 (6 July 2018).
- 11.
Statement made on 29 March 2017, reportedly by Hajnoczi himself (Nuclear Ban Daily, Vol. 1, No. 4 (30 March 2017)).
- 12.
See statement made on 29 March 2017.
- 13.
See Nuclear Ban Daily, Vol. 1, No. 4 (30 March 2017) (citing Austria, Mexico, Sweden and Switzerland); Nuclear Ban Daily, Vol. 2, No. 3 (19 June 2017) (citing Switzerland).
- 14.
See Article 31(2), 1963 Vienna Convention on Consular Relations.
- 15.
See, e.g., A/CONF.25/16, at 302–303; A/CONF.25/16/Add.1, at 126–127. The 1961 Vienna Convention on Diplomatic Relations envisages no exceptional bases for assumed consent to entry by the receiving state. Records show that, during the Vienna Conference on Diplomatic Intercourse and Immunities, Spain and Mexico withdrew their proposed amendment to the inviolability of diplomatic premises which would have stipulated an affirmative duty incumbent upon the head of mission to cooperate with local authorities in case of emergencies. See, e.g., A.CONF.20/14, at 137–143.
- 16.
See Yearbook of the International Law Commission 1967, Vol. II: Documents of the nineteenth session including the report of the Commission to the General Assembly (A/CN.4/SER.A/1967/Add.1), at 360. See also Report of the Sixth Committee (A/6898), at 17.
- 17.
Article 25(1), 1969 Convention on Special Missions. The language was originally introduced by Argentina in the Sixth Committee (see Report of the Sixth Committee (A/7375), at 53) and remained unchanged throughout the subsequent negotiations.
- 18.
Report of the International Law Commission on the work of its first Session, 12 April 1949, Official Records of the General Assembly, Fourth Session, Supplement No. 10 (A/CN.4/13 and Corr. 1–3), at 281.
- 19.
Admittedly, Article 2(4)’s validity may very well have suffered for other reasons. See, e.g., Franck 1970.
- 20.
See also India’s ultimately unpersuasive argument against including fire as an exceptional ground for assumed consent in the 1963 Vienna Convention on Consular Relations (A/CONF.25/16, at 47) (‘The Convention on Diplomatic Relations contained no clause relating to action to be taken in the event of a fire. If such a clause appeared in the convention on consular relations, it might be argued that the authorities of the receiving State could not enter the premises of a diplomatic mission in case of fire – a thesis not permitted by modern international law.’).
- 21.
See, e.g., statements made on 29 March 2017 (by Chile, Ecuador and Venezuela).
- 22.
See, e.g., NGO working paper no. 2 (A/CONF.229/2017/NGO/WP.2) (17 March 2017) (by WILPF); NGO working paper no. 12 (A/CONF.229/2017/NGO/WP.12) (28 March 2017) (by IALANA); statement made on 29 March 2017 (by IALANA); NGO working paper no. 19 (A/CONF.229/2017/NGO/WP.19) (17 April 2017) (by Peace Boat); NGO working paper no. 21 (A/CONF.229/2017/NGO/WP.21) (20 April 2017) (by IPPNW); statement made on 19 June 2017 (by IALANA); and Nuclear Ban Daily, Vol. 2, No. 4, 20 June 2017 (citing the Japan Federation of Bar Associations).
- 23.
Statement made at a UN press briefing on 7 July 2017. See http://webtv.un.org/meetings-events/conferencessummits/un-alliance-of-civilizations-5th-global-forum-27-28-february-2013-vienna/watch/elayne-whyte-gómez-costa-rica-on-the-treaty-on-prohibition-of-nuclear-weapons-press-conference-7-july-2017/5496371703001/?term=&page=7&sort=popular.
- 24.
See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, para 105(2)(C) (‘A threat … of force … that is contrary to Article 2, paragraph 4 … and that fails to meet all the requirements of Article 51, is unlawful’); Grimal 2012, at 145–146, 153.
- 25.
There is another widely accepted exception to ground for lawful use of force under jus ad bellum—namely, authorization by the UN Security Council acting under Chapter VII of the UN Charter. This author declines to pursue the matter further here, for it is exceedingly difficult to imagine situations where nuclear weapons would be used or threatened as part of Chapter VII enforcement action.
- 26.
- 27.
See, e.g., Nuclear Weapons, para 48 (‘Whether this is a “threat” contrary to Article 2, paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality.’). When the ICJ asked itself ‘[w]hether this is a “threat”’, the particular kind of threat it had in mind was that which is ‘contrary to Article 2, paragraph 4’. In other words, the Court was specifically and exclusively concerned with ‘this’—whatever it refers to—being just that kind of threat that is unlawful under jus ad bellum. See also Roscini 2007, at 235.
- 28.
But see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, para 176; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 161, para 77; Brownlie 1963, at 264; Schachter 1984, at 1637; Quigley 1985, 180 (cited in Dinstein 2011, at 232–233).
- 29.
- 30.
- 31.
But see, e.g., Dubuisson and Lagerwall 2015, at 915–917.
- 32.
See, e.g., Higgins 1994, at 241; Gazzini 2006, at 164–169, 203–204; Gray 2000, at 151, 153, 155–156, 197–198, 203; Kretzmer 2013, at 251–258; Gardam 1999, “Necessity and Proportionality in Jus Ad Bellum and Jus In Bello”, in Boisson de Chazournes and Sands (1999) 275, at 277; Printer, Jr. 2003, at 343; Rodin 2003, at 112; Dinstein, at 262; Gardam 1999, at 277, n. 9; Gazzini 2006, at 143, 146–147, 192; Green 2009, at 101–104, 108.
- 33.
- 34.
See Nicaragua, para 269. But see Stürchler 2007, 85.
- 35.
See, e.g., Gregory M. Reichberg and Henrik Syse, Threats and Coercive Diplomacy: A Just-War Analysis (on file with this author).
- 36.
Nuclear Weapons, para 105(2)(E).
- 37.
Ibid., para 96.
- 38.
See, e.g., Kohen 1999, at 293.
- 39.
See, e.g., Stürchler 2007, at 89 n. 110.
- 40.
- 41.
See, e.g., Kadelbach 2009, para 9.
- 42.
The Biological Weapons Convention and the Chemical Weapons Convention do the same for these two types of weapons.
- 43.
See also Article I, Biological Weapons Convention; and Article 1(1), Chemical Weapons Convention.
- 44.
Article 51, United Nations Charter.
- 45.
S.S. Wimbledon (U.K. v. Japan), 1923 P.C.I.J. (ser. A) No. 1 (Aug. 17), para 35.
- 46.
The situation might become quite different if the content of Article 1(1)(d) were, or were to become, customary.
- 47.
Koskenniemi 1997, at 145–146.
- 48.
Hayashi 2014, at 51.
- 49.
Nuclear Weapons, para 48.
- 50.
See Stürchler 2007, at 84–85, 255–256. But see ibid., at 84–85, 263; Nuclear Weapons, Dissenting Opinion of Judge Weeramantry, at 540.
- 51.
Nuclear Weapons, para 47.
- 52.
Ibid.
- 53.
Ibid., para 48.
- 54.
- 55.
See, e.g., Kadelbach 2010, para 11.
- 56.
See, e.g., Gunderson 1979, at 257.
- 57.
See, e.g., Brownlie 1963, at 361–64; Yearbook of the International Law Commission 1989, Vol. I: Summary records of the meetings of the forty-first session 2 May-21 July 1989 (A/CN.4/SER.A/1989), at 68; Weeramantry 1999, at 541; Roscini 2007, at 238–243, esp. 238; Guyana v. Suriname, 47 International Legal Materials 166 (2008), at 439, 445; Independent International Fact-Finding Mission on the Conflict in Georgia, Report (2009) Vol. II, at 232; Alder, at 78.
- 58.
See, e.g., NGO working paper (A/CONF.229/2017/NGO/WP.37) (16 June 2017) (by IALANA), at paras 1–5. But see Dubuisson and Lagerwall 2015, at 913.
- 59.
Here, too, Israel’s ‘strategic ambiguity’ comes to mind.
- 60.
- 61.
See, e.g., Dubuisson and Lagerwall 2015, at 913.
- 62.
See Hayashi 2014, at 52 (‘There is, in principle, some degree of specificity regarding the threatenee’s identity. Mutual nuclear deterrence of the classic Cold War-type typifies this construal. Another good example is India and Pakistan, where both are at once, and very clearly, each other’s threatener and threatenee. In certain circumstances, however, the threatenee’s identity need be neither so specific nor so singular. It may be said that Israel’s strategic ambiguity, by its very design, has multiple unnamed threatenees in the Middle East, both near to and far from its borders.’).
- 63.
- 64.
- 65.
See also, e.g., Grimal 2012, at 62.
- 66.
Nuclear Weapons, para 48.
- 67.
See ibid., paras 65–66.
- 68.
See ibid., para 66.
- 69.
See ibid., para 65.
- 70.
Ibid., para 67.
- 71.
Ibid., para 64.
- 72.
Ibid., para 73.
- 73.
- 74.
See, e.g., Kadelbach 2009, paras 9, 11.
- 75.
See, e.g., Hayashi 2014, at 39–42.
- 76.
Nuclear Weapons, para 48.
- 77.
See, e.g., Josh Rogin, Obama Plans Major Nuclear Policy Changes in His Final Months, The Washington Post, 10 July 2016, https://www.washingtonpost.com/opinions/global-opinions/obama-plans-major-nuclear-policy-changes-in-his-final-months/2016/07/10/fef3d5ca-4521-11e6-88d0-6adee48be8bc_story.html?noredirect=on&utm_term=.ba3ce6bedd66; David E. Sanger and William J. Broad, Obama Unlikely to Vow No First Use of Nuclear Weapons, The New York Times, 5 September 2016, http://www.nytimes.com/2016/09/06/science/obama-unlikely-to-vow-no-first-use-of-nuclear-weapons.html.
- 78.
See, e.g., Abe Tells U.S. of Japan’s Concerns over ‘No First Use’ Nuke Policy Being Mulled by Obama, The Japan Times, 16 August 2016, https://www.japantimes.co.jp/news/2016/08/16/national/politics-diplomacy/abe-tells-u-s-japans-concerns-obama-mulled-no-first-use-nuke-policy/#.Wud90C-B0ch.
- 79.
See also Article 12 (‘Each State Party shall encourage States not party to this Treaty to sign, ratify, accept, approve or accede to the Treaty, with the goal of universal adherence of all States to the Treaty.’).
- 80.
See Article 17(2) (‘Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interest of its country …’). The right of withdrawal is subject to two safeguards. First, the State is to notify the depositary of what the extraordinary events in question are. Second, the withdrawal is to take effect only 12 months after the notice or, if the withdrawing State finds itself a party to an armed conflict, that State will continue to be bound by the Treaty ‘until it is no longer party to an armed conflict’.
- 81.
See Articles 2(1)(c) (‘Each State Party shall submit to the Secretary-General of the United Nations, not later than 30 days after this Treaty enters into force for that State Party, a declaration in which it shall … [n]otwithstanding Article 1(g), declare whether there are any nuclear weapons or other nuclear explosive devices in its territory or in any place under its jurisdiction or control that are owned, possessed or controlled by another State.’) and 4(4) (‘Notwithstanding Article 1 … (g), each State Party that has any nuclear weapons or other nuclear explosive devices in its territory or in any place under its jurisdiction or control that are owned, possessed or controlled by another State shall ensure the prompt removal of such weapons, as soon as possible but not later than a deadline to be determined by the first meeting of States Parties Upon the removal of such weapons or other explosive devices, that State Party shall submit to the Secretary-General of the United Nations a declaration that it has fulfilled its obligations under this Article.’).
- 82.
Article 1(1)(g) prohibits States Parties from ‘allow[ing] any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in [their territories] or at any place under [their] jurisdiction or control’.
- 83.
Papua New Guinea (A/CONF.229/2017/WP.4 (10 May 2017)), as well as ICAN (statement made on 21 June 2017) and the Center for International Security and Policy (statement made on 21 June 2017), categorically opposed any possibility to withdraw under any circumstances. A number of States advocated restrictions on withdrawals. See statements made on 31 March 2017 (by Austria, Brazil, New Zealand and Sweden) and compilation of amendments received from States on Articles 11–21 received as of 20 June, 10 pm (by Liechtenstein). For the harder-line position regarding removals characterised by ‘destroy and then join’, see, e.g., Briefing by the President of the United Nations Conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination (New York, 12 June 2017); statement made on 31 March 2017 by the Center for International Security and Policy.
- 84.
See Article 17. The idea of excluding reservations enjoyed widespread support. See, e.g., working paper no. 1 (A/CONF.229/2017/WP.1 (23 March 2017) (by OPANAL); working paper no. 4 (A/CONF.229/2017/WP.4) (10 May 2017) (by Papua New Guinea); NGO working paper no. 1 (A/CONF.229/2017/NGO/WP.1) (17 March 2017) (by WILPF); NGO working paper no. 21 (A/CONF.229/2017/NGO/WP.21) (20 April 2017) (by IPPNW); statements made on 31 March 2017 (by Austria, Brazil, Fiji, New Zealand, Thailand and ICAN); compilation of amendments received from States on Articles 11–21 received as of 20 June, 10 pm (by Cuba). They prevailed over those in favour of more flexibility (see, e.g., statement made on 29 March 2017 (by Malaysia)) or non-regulation (see, e.g., compilation of amendments received from States on Articles 11–21 received as of 20 June, 10 pm (by Liechtenstein)) over the matter.
- 85.
See, e.g., statements made on 29 March 2017 (by South Africa and ICAN); NGO working paper no. 19 (A/CONF.229/2017/NGO.WP.19) (17 April 2017) (by Peace Boat) (‘Indeed, [nuclear-armed states and nuclear-dependent states] will not be able to accede to the NWBT as long as they possess or continue to rely on nuclear weapons in their security policies. They will need to undertake fundamental changes to their security policies in order to accede to the NWBT. This may not take place in the immediate near future in many of those states. Any attempt to dilute the prohibitions of the NWBT to facilitate the accession of those states, in a way to allow them to accede to the treaty without clearly parting with their attachment to nuclear weapons, not only runs contrary to the central objectives of this treaty but also is unlikely to result in their actual accession, given their refusal to participate in the negotiations so far’).
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Hayashi, N. (2019). Is the Nuclear Weapons Ban Treaty Accessible to Umbrella States?. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume IV. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-267-5_17
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