On April 24, 2014, the Republic of the Marshall Islands (RMI) filed applications in the International Court of Justice (ICJ) to hold the nine nuclear-armed states accountable for violations of international law with respect to their nuclear disarmament obligations under the 1968 Nuclear Non-Proliferation Treaty (NPT) and customary international law. The nine states possessing nuclear arsenals are the United States, United Kingdom, France, Russia, China, India, Pakistan, North Korea, and Israel. The cases are founded on the unanimous conclusion of the ICJ in a 1996 advisory opinion, that there “exists an obligation to pursue in good faith and bring to a conclusion negotiations leadings to nuclear disarmament in all its aspects under strict and effective international control.”
RMI claims that the principles enshrined in the Article 6 (Each 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) of the Nuclear Non Proliferation Treaty are a part of the jus cogens and hence its violation by all nuclear armed states creates an obligation erga omnus to retract their illegal activities and inspire disarmament. Furthermore, the parallel drawn between the erga omnus, NPT and customary international law by RMI in the context of at least India does not apply because India is not a state party to the NPT and hence is not bound by the principles enshrined in the article 6 of the treaty. Jus Cogens are the philosophical rights of all human beings and are the basis of formation of international law. They are inalienable rights and violation of these rights (regardless of a nation being a state party or not to a convention, treaty or resolution involving these principles) leads to obligations erga omnus to fulfil them. For example, Acts of slavery, piracy and genocide are prohibited as being a part of jus cogens norms.
RMI builds its case claiming that India, Israel and Pakistan are bound by the the aforementioned principles even without signing the NPT by virtue of possessing nuclear weapons as in principle they amount to incitement of genocide. However, nuclear weapons are tools to genocide and must not be equated to genocide itself. But, the argument of self defence by use of nuclear weapons does create a dilemma whether genocide is a way of self defence but according to the Charter of the UN (also part of the principles encompassed under jus cogens) self defence is acceptable in case of imminent threat of acts of aggression by other nation states or non state actors.
Similarly, RMI accuses all parties to the NPT of violating it by blatantly ignoring article 6 and never intending good faith negotiations. For instance, USA not signing the CTBT and conducting tests in RMI, USSR withdrawing by SALT 2 inter alia. These actions, however are more self defence oriented and undeniably are based on geo political reasons but still are not in violation of article 6 because - a) the inception of these talks imply that there has been an intention in good faith towards disarmament and b) every treaty being a multi lateral contract between nations functions like latter implying that the good faith of any contract is assumed because of the offer, acceptance and consideration. If there is a lack of good will proved, the entire contract remains void ab initio. Thus, RMI's various legal claims against all nuclear powered nations are simple means to geopolitical gains and much less for the appreciation of international law.
RMI claims that the principles enshrined in the Article 6 (Each 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) of the Nuclear Non Proliferation Treaty are a part of the jus cogens and hence its violation by all nuclear armed states creates an obligation erga omnus to retract their illegal activities and inspire disarmament. Furthermore, the parallel drawn between the erga omnus, NPT and customary international law by RMI in the context of at least India does not apply because India is not a state party to the NPT and hence is not bound by the principles enshrined in the article 6 of the treaty. Jus Cogens are the philosophical rights of all human beings and are the basis of formation of international law. They are inalienable rights and violation of these rights (regardless of a nation being a state party or not to a convention, treaty or resolution involving these principles) leads to obligations erga omnus to fulfil them. For example, Acts of slavery, piracy and genocide are prohibited as being a part of jus cogens norms.
RMI builds its case claiming that India, Israel and Pakistan are bound by the the aforementioned principles even without signing the NPT by virtue of possessing nuclear weapons as in principle they amount to incitement of genocide. However, nuclear weapons are tools to genocide and must not be equated to genocide itself. But, the argument of self defence by use of nuclear weapons does create a dilemma whether genocide is a way of self defence but according to the Charter of the UN (also part of the principles encompassed under jus cogens) self defence is acceptable in case of imminent threat of acts of aggression by other nation states or non state actors.
Similarly, RMI accuses all parties to the NPT of violating it by blatantly ignoring article 6 and never intending good faith negotiations. For instance, USA not signing the CTBT and conducting tests in RMI, USSR withdrawing by SALT 2 inter alia. These actions, however are more self defence oriented and undeniably are based on geo political reasons but still are not in violation of article 6 because - a) the inception of these talks imply that there has been an intention in good faith towards disarmament and b) every treaty being a multi lateral contract between nations functions like latter implying that the good faith of any contract is assumed because of the offer, acceptance and consideration. If there is a lack of good will proved, the entire contract remains void ab initio. Thus, RMI's various legal claims against all nuclear powered nations are simple means to geopolitical gains and much less for the appreciation of international law.
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