WCP Commentary on Scottish Report 2

INLAP/World Court Project UK

Every year since 1996, the UN General Assembly has adopted a resolution following up on the Advisory Opinion which, Calls once again upon all States immediately to fulfil that obligation by commencing multilateral negotiations leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.

The obligation to “bring to a conclusion” negotiations to eliminate nuclear weapons is placed on all states to act in concert. The UK is not in a position to do this unilaterally. However, individual states, and especially the Nuclear Weapon States signatory to the NPT, have a special obligation to exert themselves to bring about the commencement of negotiations.

There is no evidence that the UK Government is willing to do this. For several years letters to concerned citizens from the Ministry of Defence and the Foreign Office consistently refer to minimal intermediate steps. For example, a letter from The Ministry of Defence to Trident Ploughshares of 22 June 2009 states: We have ratified the Comprehensive Test Ban Treaty and call regularly on all states that have not yet done so to do the same (particularly those whose ratification is required before the Treaty can enter into force). We are also working hard for the start of negotiation without pre-conditions on a Fissile Material Cut-Off treaty in the Conference on Disarmament in Geneva. There is no reference to the start of negotiations for nuclear disarmament or a nuclear weapons convention, nor is there in the Government’s December 2006 White Paper on The Future of the United Kingdom's Nuclear Deterrent.

The Good Faith Obligation

Both the ICJ and the NPT lay emphasis on the concept of Good Faith. This has meaning in everyday life but it also has legal force. The principle of good faith was said by the ICJ to be one of the basic principles governing the creation and performance of legal obligations (Nuclear Tests Cases (Australia v France; New Zealand v France). Speaking in Edinburgh in 2009 Christopher Weeramantry, former World Court Judge, said: Nobody aware of that evidence could be left in the slightest doubt that every step that can be taken legally towards the abolition of this weapon of brutality needs to be taken and that those steps should be taken not nominally but effectively, not leisurely but urgently, not hesitantly but decisively. Good faith should pervade the whole operation, for good faith is an essential element in every aspect of the application and observance of international law:

Essentially, “Good Faith” means negotiating sincerely and flexibly to achieve the desired result - global nuclear disarmament. This objective should be pursued consistently with real political will. The conclusion should be reached within a reasonable time and the parties must avoid policies which contradict the very purpose of the negotiations. At its heart is trust that the parties to negotiations