321

     DISSENTING OPINION OF JUDGE CANÇADO TRINDADE

                               table of contents

                                                                           Paragraphs

       I. PROLEGOMENA                                                            1-4
      II. The Existence of a Dispute before the Hague Court                     5-32

         1. Objective determination by the Court                                5-15
         2. Existence of a dispute in the Cas d’espèce (Marshall Islands
            v. India case)                                                     16-18
         3. The threshold for the determination of the existence of a
            dispute                                                            19-24
         4. Contentions in the Marshall Islands v. India case                  25-28
         5. General assessment                                                 29-32
     III. UN General Assembly Resolutions and OPINIO JURIS                     33-58

         1. UN General Assembly resolutions on nuclear weapons
            (1961-1981)                                                        34-39
         2. UN General Assembly resolutions on freeze of nuclear
            weapons (1982-1992)                                                40-42
         3. UN General Assembly resolutions on nuclear weapons as
            breach of the UN Charter (Acknowledgment before the
            ICJ, 1995)                                                         43-46
         4. UN General Assembly resolutions condemning nuclear
            weapons (1982-2015)                                                47-52
         5. UN General Assembly resolutions following up the ICJ’s
            1996 Advisory Opinion (1996-2015)                                  53-58
     IV. UN Security Council Resolutions and OPINIO JURIS                      59-65

      V. The Saga of the United Nations in the Condemnation of
         Nuclear Weapons                                                       66-79
     VI. UN Resolutions and the Emergence of OPINIO JURIS:
         The Positions of the Contending Parties                               80-85
     VII. Questions from the Bench and Responses from the
          Parties                                                              86-92
 VIII. Human Wickedness: From the Twenty-First Century
       Back to the Book of Genesis                                            93-122

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322     nuclear arms and disarmament (diss. op. cançado trindade)

     IX. The Attention of the United Nations Charter to
         Peoples                                                            123-131
      X. Impertinence     of   the   So-Called     MONETARY       GOLD
         “Principle”                                                        132-135
     XI. The Fundamental Principle of the Juridical Equality
         of States                                                          136-139
     XII. Unfoundedness of the Strategy of “Deterrence”                     140-150
 XIII. The Illegality of Nuclear Weapons and the Obligation
       of Nuclear Disarmament                                               151-200
         1. The condemnation of all weapons of mass destruction             151-156

         2. The prohibition of nuclear weapons: The need of a
            people-centred approach                                         157-175
         3. The prohibition of nuclear weapons: The fundamental
            right to life                                                   176-189
         4. The absolute prohibitions of jus cogens and the humaniza-
            tion of international law                                       190-193
         5. The pitfalls of legal positivism: A rebuttal of the so-called
            Lotus “principle”                                               194-200
 XIV. Recourse to the “Martens Clause” as an Expression of
      the RAISON D’HUMANITÉ                                                 201-209
     XV. Nuclear Disarmament: Jusnaturalism, the Humanist
         Conception and the Universality of International Law               210-220
 XVI. The Principle of Humanity and the Universalist
      Approach: JUS NECESSARIUM Transcending the Limit-
      ations of JUS VOLUNTARIUM                                             221-233
XVII. NPT Review Conferences                                                234-249
XVIII. The Establishment of Nuclear-Weapon-Free Zones                       250-262
 XIX. Conferences on the Humanitarian Impact of Nuclear
      Weapons (2013-2014)                                                   263-299
         1. First Conference on the Humanitarian Impact of Nuclear
            Weapons                                                         266-270
         2. Second Conference on the Humanitarian Impact of
            Nuclear Weapons                                                 271-279
         3. Third Conference on the Humanitarian Impact of Nuclear
            Weapons                                                         280-291
         4. Aftermath: The “humanitarian pledge”                            292-299

     XX. Final Considerations: OPINIO JURIS COMMUNIS Emanat-
         ing from Conscience (RECTA RATIO), Well above the
         “Will”                                                             300-314
 XXI. Epilogue: A Recapitulation                                            315-331

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323   nuclear arms and disarmament (diss. op. cançado trindade)

                              I. PROLEGOMENA

   1. I regret not to be able to accompany the Court’s majority in the
Judgment of today, 5 October 2016 in the present case of Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. India), whereby it has
found that the existence of a dispute between the parties has not been
established before it, and that the Court has no jurisdiction to consider
the Application lodged with it by the Marshall Islands, and cannot thus
proceed to the merits of the case. I entirely disagree with the present
Judgment. As my dissenting position covers all points addressed in it, in
its reasoning as well as in its resolutory points, I feel obliged, in the faith-
ful exercise of the international judicial function, to lay on the records the
foundations of my own position thereon.

   2. In doing so, I distance myself as much as I can from the position of
the Court’s majority, so as to remain in peace with my conscience. I shall
endeavour to make clear the reasons of my personal position on the mat-
ter addressed in the present Judgment, in the course of the present dis-
senting opinion. I shall begin by examining the question of the existence
of a dispute before the Hague Court (its objective determination by the
Court and the threshold for the determination of the existence of a dis-
pute). I shall then turn attention to the distinct series of UN Gen-
eral Assembly resolutions on nuclear weapons and opinio juris. After
surveying also UN Security Council resolutions and opinio juris, I shall
dwell upon the saga of the United Nations in the condemnation of nuclear
weapons. Next, I shall address the positions of the Contending Parties on
UN resolutions and the emergence of opinio juris, and their responses to
questions from the Bench.

   3. In logical sequence, I shall then, looking well back in time, underline
the need to go beyond the strict inter-State dimension, bearing in mind
the attention of the UN Charter to peoples. Then, after recalling the fun-
damental principle of the juridical equality of States, I shall dwell upon
the unfoundedness of the strategy of “deterrence”. My next line of con-
siderations pertains to the illegality of nuclear weapons and the obliga-
tion of nuclear disarmament, encompassing: (a) the condemnation of all
weapons of mass destruction; (b) the prohibition of nuclear weapons (the
need of a people-centred approach, and the fundamental right to life);
(c) the absolute prohibitions of jus cogens and the humanization of inter-
national law; (d) pitfalls of legal positivism.

  4. This will bring me to address the recourse to the “Martens clause”
as an expression of the raison d’humanité. My following reﬂections, on
nuclear disarmament, will be in the line of jusnaturalism, the humanist
conception and the universality of international law; in addressing the

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324    nuclear arms and disarmament (diss. op. cançado trindade)

universalist approach, I shall draw attention to the principle of humanity
and the jus necessarium transcending the limitations of jus voluntarium. I
shall then turn attention to the NPT Review Conferences, to the relevant
establishment of nuclear-weapon-free zones, and to the Conferences on
the Humanitarian Impact of Nuclear Weapons. The way will then be
paved for my ﬁnal considerations, on opinio juris communis emanating
from conscience (recta ratio), well above the “will”, — and, last but not
least, to the epilogue (recapitulation).

        II. The Existence of a Dispute before the Hague Court

                    1. Objective Determination by the Court
   5. May I start by addressing the issue of the existence of a dispute
before the Hague Court. In the jurisprudence constante of the Hague Court
(PCIJ and ICJ), a dispute exists when there is “a disagreement on a point
of law or fact, a conﬂict of legal views or of interests between two
persons” 1. Whether there exists a dispute is a matter for “objective deter-
mination” by the Court; the “mere denial of the existence of a dispute
does not prove its non-existence” 2. The Court must examine if “the claim
of one party is positively opposed by the other” 3. The Court further states
that “a disagreement on a point of law or fact, a conﬂict of legal views or
interests, or the positive opposition of the claim of one party by the other
need not be necessarily be stated expressis verbis” 4.

   6. Over the last decade, the Court has deemed it ﬁt to insist on its own
faculty to proceed to the “objective determination” of the dispute. Thus,
in the case of Armed Activities on the Territory of the Congo (New Appli-
cation: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction
and Admissibility (Judgment, I.C.J. Reports 2006, p. 6), for example, the
ICJ has recalled that, as long ago as 1924, the PCIJ stated that “a dispute
is a disagreement on a point of law or fact, a conﬂict of legal views or

   1 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,

p. 11.
   2 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,

Advisory Opinion, I.C.J. Reports 1950, p. 74.
   3 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary

Objections, Judgment, I.C.J. Reports 1962, p. 328; case of Armed Activities on the Territory
of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 40, para. 90.
   4 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),

Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.

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325    nuclear arms and disarmament (diss. op. cançado trindade)

interests” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924,
P.C.I.J., Series A, No. 2, p. 11). It then added that

        “For its part, the present Court has had occasion a number of times
      to state the following:
            ‘In order to establish the existence of a dispute, ‘it must be
         shown that the claim of one party is positively opposed by the
         other’ (South West Africa, Preliminary Objections, Judgment,
         I.C.J. Reports 1962, p. 328); and further, ‘Whether there exists an
         international dispute is a matter for objective determination’
         (Interpretation of Peace Treaties with Bulgaria, Hungary and Roma-
         nia, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74; East
         Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995,
         p. 100, para. 22; Questions of Interpretation and Application of the
         1971 Montreal Convention arising from the Aerial Incident at Loc-
         kerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
         Objections, Judgment, I.C.J. Reports 1998, p. 17, para. 22; Ques-
         tions of Interpretation and Application of the 1971 Montreal Conven-
         tion arising from the Aerial Incident at Lockerbie (Libyan Arab
         Jamahiriya v. United States of America), Preliminary Objections,
         Judgment, I.C.J. Reports 1998, pp. 122-123, para. 21; Certain Pro-
         perty (Liechtenstein v. Germany), Preliminary Objections, Judg-
         ment, I.C.J. Reports 2005, p. 18, para. 24)’.” (Armed Activities on
         the Territory of the Congo (New Application: 2002) (Democratic
         Republic of the Congo v. Rwanda), Jurisdiction and Admissibility,
         Judgment I.C.J. Reports 2006, p. 40, para. 90.)
  7. Shortly afterwards, in its Judgment on preliminary objections
(of 18 November 2008) in the case of the Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Croatia v. Ser-
bia), the ICJ has again recalled that
         “In numerous cases, the Court has reiterated the general rule which
      it applies in this regard, namely: ‘the jurisdiction of the Court must
      normally be assessed on the date of the ﬁling of the act instituting
      proceedings’ (to this eﬀect, see Application of the Convention on the
      Prevention and Punishment of the Crime of Genocide (Bosnia and Her-
      zegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
      Reports 1996 (II), p. 613, para. 26; Questions of Interpretation and
      Application of the 1971 Montreal Convention arising from the Aerial
      Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
      Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 26, para. 44)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         (I)t is normally by reference to the date of the ﬁling of the instru-
      ment instituting proceedings that it must be determined whether those
      conditions are met
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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326    nuclear arms and disarmament (diss. op. cançado trindade)

         What is at stake is legal certainty, respect for the principle of equal-
      ity and the right of a State which has properly seised the Court to see
      its claims decided, when it has taken all the necessary precautions to
      submit the act instituting proceedings in time
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         [T]he Court must in principle decide the question of jurisdiction on
      the basis of the conditions that existed at the time of the institution
      of the proceedings.
         However, it is to be recalled that the Court, like its predecessor, has
      also shown realism and ﬂexibility in certain situations in which the
      conditions governing the Court’s jurisdiction were not fully satisﬁed
      when proceedings were initiated but were subsequently satisﬁed,
      before the Court ruled on its jurisdiction.” (Judgment, I.C.J. Reports
      2008, pp. 437-438, paras. 79-81.)
  8. More recently, in its Judgment on preliminary objections (of 1 April
2011) in the case of the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation) (hereinafter Application of the CERD Convention), the ICJ
saw it ﬁt, once again, to stress:
         “The Court recalls its established case law on that matter, begin-
      ning with the frequently quoted statement by the Permanent Court
      of International Justice in the Mavrommatis Palestine Concessions
      case in 1924: ‘A dispute is a disagreement on a point of law or fact,
      a conﬂict of legal views or of interests between two persons’. (Judg-
      ment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). Whether there is a
      dispute in a given case is a matter for ‘objective determination’ by the
      Court (Interpretation of Peace Treaties with Bulgaria, Hungary and
      Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).
      ‘It must be shown that the claim of one party is positively opposed
      by the other’ (South West Africa (Ethiopia v. South Africa; Liberia v.
      South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962,
      p. 328) (and, most recently, Armed Activities on the Territory of the
      Congo (New Application: 2002) (Democratic Republic of the Congo
      v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
      2006, p. 40, para. 90). The Court’s determination must turn on an
      examination of the facts. The matter is one of substance, not of form.
      As the Court has recognized (for example, Land and Maritime Bound-
      ary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelimi-
      nary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89), the
      existence of a dispute may be inferred from the failure of a State to
      respond to a claim in circumstances where a response is called for.
      While the existence of a dispute and the undertaking of negotiations
      are distinct as a matter of principle, the negotiations may help demon-
      strate the existence of the dispute and delineate its subject-matter.

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327    nuclear arms and disarmament (diss. op. cançado trindade)

         The dispute must in principle exist at the time the Application is
      submitted to the Court (Questions of Interpretation and Application of
      the 1971 Montreal Convention arising from the Aerial Incident at
      Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
      Objections, Judgment, I.C.J. Reports 1998, pp. 25-26, paras. 42-44;
      Questions of Interpretation and Application of the 1971 Montreal Con-
      vention arising from the Aerial Incident at Lockerbie (Libyan Arab
      Jamahiriya v. United States of America), Preliminary Objections,
      Judgment, I.C.J. Reports 1998, pp. 130-131, paras. 42-44).”
      (I.C.J. Reports 2011 (I), pp. 84-85, para. 30.)
   9. This passage of the 2011 Judgment in the case of Application of the
CERD Convention reiterates what the ICJ has held in its jurisprudence
constante. Yet, shortly afterwards in that same Judgment, the ICJ has
decided to apply to the facts of the case a higher threshold for the deter-
mination of the existence of a dispute, by proceeding to ascertain whether
the applicant State had given the respondent State prior notice of its
claim and whether the respondent State had opposed it 5. On this basis, it
has concluded that no dispute had arisen between the Contending Parties
(before August 2008). Such new requirement, however, is not consistent
with the PCIJ’s and the ICJ’s jurisprudence constante on the determina-
tion of the existence of a dispute (cf. supra).
   10. Now, in the present case, the three respondent States (India,
United Kingdom and Pakistan), seek to rely on a requirement of prior
notiﬁcation of the claim, or the test of prior awareness of the claim of the
applicant State (the Marshall Islands), for a dispute to exist under the
ICJ’s Statute or general international law. Yet, nowhere can such a
requirement be found in the Court’s jurisprudence constante as to the exis-
tence of a dispute: quite on the contrary, the ICJ has made clear that the
position or the attitude of a party can be established by inference 6. Pur-
suant to the Court’s approach, it is not necessary for the respondent to
oppose previously the claim by an express statement, or to express
acknowledgment of the existence of a dispute.

   5 Cf. paras. 50-105, and esp. paras. 31, 61 and 104-105, of the Court’s Judgment of

1 April 2011.
   6 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),

Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89:
      “a disagreement on a point of law or fact, a conﬂict of legal views or interests, or
      the positive opposition of the claim of one party by the other need not necessarily be
      stated expressis verbis. In the determination of the existence of a dispute, as in other
      matters, the position or the attitude of a party can be established by inference, what-
      ever the professed view of that party.”

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328    nuclear arms and disarmament (diss. op. cançado trindade)

   11. The respondent States in the present case have made reference to
the Court’s 2011 Judgment in the case of the Application of the CERD
Convention in support of their position that prior notice of the applicant’s
claim is a requirement for the existence of a dispute. Already in my dis-
senting opinion (para. 161) in that case, I have criticized the Court’s “for-
malistic reasoning” in determining the existence of a dispute, introducing
a higher threshold that goes beyond the jurisprudence constante of the
PCIJ and the ICJ itself (cf. supra).

  12. As I pointed out in that dissenting opinion in the case of the Appli-
cation of the CERD Convention,
      “As to the ﬁrst preliminary objection, for example, the Court spent
      92 paragraphs to concede that, in its view, a legal dispute at last
      crystallized, on 10 August 2008 (para. 93), only after the outbreak of
      an open and declared war between Georgia and Russia! I ﬁnd that
      truly extraordinary: the emergence of a legal dispute only after the
      outbreak of widespread violence and war! Are there disputes which
      are quintessentially and ontologically legal, devoid of any political
      ingredients or considerations? I do not think so. The same formalistic
      reasoning leads the Court, in 70 paragraphs, to uphold the second
      preliminary objection, on the basis of alleged (unfulﬁlled) ‘precondi-
      tions’ of its own construction, in my view at variance with its own
      jurisprudence constante and with the more lucid international legal
      doctrine.” (I.C.J. Reports 2011 (I), p. 305, para. 161.)

   13. Half a decade later, I was hopeful that the Court would distance
itself from the formalistic approach it adopted in the case of the Applica-
tion of the CERD Convention. As it regrettably has not done so, I feel
obliged to reiterate here my dissenting position on the issue, this time in
the present case of Obligations concerning Negotiations relating to Cessa-
tion of the Nuclear Arms Race and to Nuclear Disarmament. In eﬀect,
there is no general requirement of prior notice of the applicant State’s
intention to initiate proceedings before the ICJ 7. It should not pass
unnoticed that the purpose of the need of determination of the existence
of a dispute (and its object) before the Court is to enable this latter to
exercise jurisdiction properly: it is not intended to protect the respondent
State, but rather and more precisely to safeguard the proper exercise of
the Court’s judicial function.

   7 Cf., to this eﬀect, S. Rosenne, The Law and Practice of the International Court

(1920-2005), 4th ed., Vol. III, Leiden, Nijhoﬀ/Brill, 2006, p. 1153.

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329    nuclear arms and disarmament (diss. op. cançado trindade)

  14. There is no requirement under general international law that the
contending parties must ﬁrst “exhaust” diplomatic negotiations before
lodging a case with, and instituting proceedings before, the Court (as a
precondition for the existence of the dispute). There is no such require-
ment in general international law, nor in the ICJ’s Statute, nor in the
Court’s case law. This is precisely what the ICJ held in its Judgment on
preliminary objections (of 11 June 1998) in the case of Land and Maritime
Boundary between Cameroon and Nigeria: it clearly stated that “Neither in
the Charter nor otherwise in international law is any general rule to be
found to the eﬀect that the exhaustion of diplomatic negotiations consti-
tutes a precondition for a matter to be referred to the Court” (I.C.J.
Reports 1998, p. 303, para. 56).

   15. The Court’s statement refers to the “exhaustion” of diplomatic
negotiations, — to discard the concept. In eﬀect, there is no such a
requirement in the UN Charter either, that negotiations would need to be
resorted to or attempted. May I reiterate that the Court’s determination
of the existence of the dispute is not designed to protect the respondent
State(s), but rather to safeguard the proper exercise of its own judicial
function in contentious cases. It is thus a matter for objective determina-
tion by the Court, as it recalled in that same Judgment (para. 87), on the
basis of its own jurisprudence constante on the matter.

                 2. Existence of a Dispute in the Cas d’espèce
                       (Marshall Islands v. India Case)
   16. In the present case opposing the Marshall Islands to India, there
were two sustained and distinct courses of conduct of the two Contending
Parties, evidencing their distinct legal positions, which suﬃce for the
determination of the existence of a dispute. The subject-matter of the dis-
pute between the Parties is whether India has breached its obligation
under customary international law to pursue in good faith and to con-
clude negotiations leading to nuclear disarmament in all its aspects under
eﬀective international control.
   17. The Marshall Islands contended, as to India’s course of conduct,
that, although India repeatedly declared its commitment to the goal of
complete nuclear disarmament, having voted consistently in favour of
General Assembly resolutions to that eﬀect, when it comes to its actions
(or omissions), India has maintained its nuclear arsenal 8. To the Mar-
shall Islands, India’s course of conduct is incompatible with the stated
objective of nuclear disarmament. The Marshall Islands expressed its
opposing position in its declaration of 14 February 2014 at the Confer-

  8 Application instituting proceedings of the Marshall Islands, pp. 20-24, paras. 29-34;

Memorial of the Marshall Islands, para. 19.

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330       nuclear arms and disarmament (diss. op. cançado trindade)

ence of Nayarit on the Humanitarian Impact of Nuclear Weapons
(cf. Part XIX, infra).

   18. In its submissions before the ICJ, India conﬁrmed the opposition
of legal views 9. In its Counter-Memorial, e.g., India argued that the posi-
tion of the Marshall Islands “lacks any merit whatsoever” 10. In its oral
arguments before the ICJ, India denied the existence of an obligation
under customary international law, as invoked by the Marshall Islands 11.
India further contended that “[d]isarmament is a Charter responsibility of
the United Nations” 12. Yet, it proceeded, in its view, “the question of a
dispute does not arise” in the cas d’espèce, as global nuclear disarmament
“cannot be litigated between two States or among a handful of States”,
and has to be supported by, and count on the participation of, all States 13.
India then added that it is “the only State possessing nuclear weapons”
that has “co-sponsored and votes for” the UN General Assembly resolu-
tions on the follow-up of the 1996 ICJ’s Advisory Opinion on the Threat
or Use of Nuclear Weapons 14.

     3. The Threshold for the Determination of the Existence of a Dispute
   19. In the present cases of Marshall Islands v. India/United Kingdom/
Pakistan), the Court’s majority has unduly heightened the threshold for
establishing the existence of a dispute. Even if dismissing the need for an
applicant State to provide notice of a dispute, in practice, the requirement
stipulated goes far beyond giving notice: the Court eﬀectively requires an
applicant State to set out its legal claim, to direct it speciﬁcally to the
prospective-respondent State(s), and to make the alleged harmful conduct
clear. All of this forms part of the “awareness” requirement that the
Court’s majority has laid down, seemingly undermining its own ability to
infer the existence of a dispute from the conﬂicting courses of conduct of
the Contending Parties.

     9
     Cf. India’s letter of 6 June 2014, cit. in: Memorial of the Marshall Islands, para. 20.
     10
      Counter-Memorial of India, para. 6.
   11 Cf., e.g., CR 2016/8, of 16 March 2016, p. 36, para. 5, for the argument that the

Marshall Islands “is attempting to impose a legal obligation on India based on an imagi-
nary principle of parallel customary law distinct from Article VI of the NPT”, while provi-
ding “no source for this principle”.
   12 As indicated by its Articles 11, 26 and 47 (1); CR 2016/4, of 10 March 2016, p. 13,

para. 2 (statement of India).
   13 Ibid., p. 19, paras. 11-12.
   14 Ibid., para. 1; and cf. ibid., p. 16, para. 6.

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331        nuclear arms and disarmament (diss. op. cançado trindade)

  20. This is not in line with the ICJ’s previous obiter dicta on inference,
contradicting it. For example, in the aforementioned case of Land and
Maritime Boundary between Cameroon and Nigeria (1998), the ICJ stated
that
            “[A] disagreement on a point of law or fact, a conﬂict of legal views
          or interests, or the positive opposition of the claim of one party by
          the other need not necessarily be stated expressis verbis. In the deter-
          mination of the existence of a dispute, as in other matters, the position
          or the attitude of a party can be established by inference, whatever
          the professed view of that party.” (I.C.J. Reports 1998, p. 315,
          para. 89.)
   21. The view taken by the Court’s majority in the present case contra-
dicts the Hague Court’s (PCIJ and ICJ) own earlier case law, in which it
has taken a much less formalistic approach to the establishment of the
existence of a dispute. Early in its life, the PCIJ made clear that it did not
attach much importance to “matters of form” 15; it added that it could not
“be hampered by a mere defect of form” 16. The PCIJ further stated that
“the manifestation of the existence of the dispute in a speciﬁc manner, as
for instance by diplomatic negotiations, is not required. (. . .) [T]he Court
considers that it cannot require that the dispute should have manifested
itself in a formal way.” 17
   22. The ICJ has, likewise, in its own case law, avoided to take a very
formalistic approach to the determination of the existence of a dispute 18.
May I recall, in this respect, inter alia, as notable examples, the Court’s
obiter dicta on the issue, in the cases of East Timor (Portugal v. Austra-
lia), of the Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Croatia v. Serbia) (Bosnia and
Herzegovina v. Yugoslavia), and of Certain Property (Liechtenstein v.
Germany). In those cases, the ICJ has considered that conduct post-

     15   Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 34.
    16 Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,

P.C.I.J., Series A, No. 6, p. 14.
    17 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11,

1927, P.C.I.J., Series A, No. 13, pp. 10-11.
    18 Cf., e.g., Advisory Opinion on the Applicability of the Obligation to Arbitrate under

Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory
Opinion, I.C.J. Reports 1988, pp. 28-29, para. 38; case of Military and Paramilitary Acti-
vities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83. Moreover, the critical
date for the determination of the existence of a dispute is, “in principle” (as the ICJ says),
the date on which the application is submitted to the Court (Questions relating to the Obli-
gation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II),
p. 20, para. 46; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean
Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 27, para. 52); the ICJ’s phraseology shows that this is not a strict rule, but rather one to
be approached with ﬂexibility.

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332       nuclear arms and disarmament (diss. op. cançado trindade)

dating the critical date (i.e., the date of the ﬁling of the Application) sup-
ports a ﬁnding of the existence of a dispute between the parties. In the
light of this approach taken by the ICJ itself in its earlier case law, it is
clear that a dispute exists in each of the present cases lodged with it by the
Marshall Islands.

   23. In the case of East Timor (1995), in response to Australia’s pre-
liminary objection that there was no dispute between itself and Portugal,
the Court stated: “Portugal has, rightly or wrongly, formulated com-
plaints of fact and law against Australia which the latter has denied. By
virtue of this denial, there is a legal dispute” 19. Shortly afterwards, in the
case of the Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Croatia v. Serbia) (preliminary objec-
tions, 1996), in response to Yugoslavia’s preliminary objection that the
Court did not have jurisdiction under Article IX of the Convention
against Genocide because there was no dispute between the Parties, the
Court, contrariwise, found that there was a dispute between them, on the
basis that Yugoslavia had “wholly denied all of Bosnia and Herzegovi-
na’s allegations, whether at the stage of proceedings relating to the
requests for the indication of provisional measures, or at the stage of the
(. . .) proceedings relating to [preliminary] objections” 20. Accordingly,
“by reason of the rejection by Yugoslavia of the complaints formulated
against it” 21, the ICJ found that there was a dispute.

  24. In the case of Certain Property (preliminary objections, 2005), as to
Germany’s preliminary objection that there was no dispute between the
parties, the ICJ found that complaints of fact and law formulated by
Liechtenstein were denied by Germany; accordingly, “[i]n conformity
with well-established jurisprudence” — the ICJ concluded — “by virtue
of this denial”, there was a legal dispute between Liechtenstein and Ger-
many 22. Now, in the present proceedings before the Court, in each of the
three cases lodged with the ICJ by the Marshall Islands (against India,
the United Kingdom and Pakistan), the respondent States have expressly
denied the arguments of the Marshall Islands. May we now take note of
the denials which, on the basis of the Court’s aforementioned jurispru-

     19
      East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22.
     20
      Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), pp. 595 and 614-615, paras. 27-29.
   21 Ibid., p. 615, para. 29.
   22 Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judg-

ment, I.C.J. Reports 2005, p. 19, para. 25, citing the Court’s Judgments in the cases of
East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22; and
of the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996 (II), p. 615, para. 29.

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333        nuclear arms and disarmament (diss. op. cançado trindade)

dence constante, evidence the existence of a dispute between the Contend-
ing Parties 23.

                4. Contentions in the Marshall Islands v. India Case
  25. The Marshall Islands argues that India has breached the custom-
ary international law obligation to negotiate nuclear disarmament in
good faith by engaging in a course of conduct that is contrary to the
objective of disarmament. The Marshall Islands further argues that India,
by its conduct, has breached the customary international law obligation
regarding the cessation of the nuclear arms race at an early date 24. For its
part, in its Counter-Memorial, India discloses that there is a dispute
between the Parties, ﬁrst, as to whether a customary international law
obligation to negotiate disarmament exists, and, secondly, as to whether,
by its own conduct, it has breached such an obligation.

   26. In eﬀect, India denies the formation of customary international
law obligations rooted in the NPT, and also denies the application of
any such obligation to itself. The terms in which India does so are very
clear:
             “In reality the RMI blames India for not complying with Article VI
          of the NPT on the nature and scope of which there is no agreement
          within the NPT and with which purportedly there has been no com-
          pliance by the States parties to that treaty for 45 years. The said obli-
          gation therefore cannot acquire customary law character imposing an
          obligation on a non-State party who has persistently objected to the
          treaty itself and the obligations contained thereunder.” 25

  27. Still in its Counter-Memorial, India contends that
          “any suggestion of the existence of a jurisdiction to compel States to
          accept obligations under a Treaty — in whole or in part — does not
          vest in this Court, and any invitation to cast upon States obligations
          other than those that ﬂow from clear and well deﬁned principles of
          customary international law would seriously erode the principle of
          sovereignty of States” 26.
India thus makes it clear that it considers that the obligations asserted by
the Marshall Islands are not well deﬁned principles of customary interna-

    23 As the present proceedings relate to jurisdiction, the opposition of views is captured

in the various jurisdictional objections; it would be even more forceful in pleadings on the
merits, which, given the Court’s majority decision, will regrettably no longer take place.
     24 Application instituting proceedings of the Marshall Islands, p. 36, paras. 58 and 60.
     25 Counter-Memorial of India, p. 41, para. 93 (iii).
     26 Ibid., p. 15, para. 24.

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334        nuclear arms and disarmament (diss. op. cançado trindade)

tional law. This directly contradicts the Marshall Islands’ position on the
matter.
   28. Furthermore, in its oral arguments, India states that “[t]he RMI is
attempting to impose a legal obligation on India based on an imaginary
principle of parallel customary law distinct from Article VI of the NPT.
The RMI provides no source for this principle” 27. As to the contention as
to whether India has breached its customary international law obligations
by its conduct, in its argument on the absence of a dispute, India argues
that it is a supporter of nuclear disarmament; accordingly, it denies the
Marshall Islands’ arguments regarding its conduct 28.

                                   5. General Assessment
   29. Always attentive and over-sensitive to the position of
nuclear-weapon States [NWS] (cf. Part XIII, infra), — such as the respon-
dent States in the present cases, — the Court, in the cas d’espèce, dis-
misses the statements made by the Marshall Islands in multilateral fora
before the ﬁling of the Application, as being, in its view, insuﬃcient to
determine the existence of a dispute. Moreover, the Court’s split majority
makes tabula rasa of the requirement that “in principle” the date for
determining the existence of the dispute is the date of ﬁling of the applica-
tion (case of Alleged Violations of Sovereign Rights and Maritime Spaces
in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 27, para. 52); as already seen, in its
case law the ICJ has taken into account conduct post-dating that critical
date (cf. supra).

   30. In an entirely formalistic reasoning, the Court borrows the obiter
dicta it made in the case of the Application of the CERD Conven-
tion (2011) — unduly elevating the threshold for the determination of the
existence of a dispute — in respect of a compromissory clause under that
Convention (wrongly interpreted anyway, making abstraction of the
object and purpose of the CERD Convention). In the present case, oppos-
ing the Marshall Islands to India, worse still, the Court’s majority takes
that higher standard out of context, and applies it herein, in a case lodged

     27   CR 2016/8, of 16 March 2016, p. 36, para. 5.
     28   For example, India states that:
             “While asserting that RMI’s position lacks any merit whatsoever, it is necessary
          at the outset to set out India’s position in the matter of nuclear disarmament and
          nuclear proliferation.
             India explained in its letter of 6 June 2014, it is ‘committed to the goal of a
          nuclear-weapon-free world through global, veriﬁable and non-discriminatory nuclear
          disarmament’.” Counter-Memorial of India, p. 4, paras. 6-7, and cf. pp. 4-10, wherein
          India argues that its conduct supports disarmament.

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335   nuclear arms and disarmament (diss. op. cançado trindade)

with the Court on the basis of an optional clause declaration, and con-
cerning an obligation under customary international law.

   31. This attempt to heighten still further the threshold for the determi-
nation of the existence of a dispute (requiring further factual precisions
from the applicant) is, besides formalistic, artiﬁcial: it does not follow
from the deﬁnition of a dispute in the Court’s jurisprudence constante, as
being “a conﬂict of legal views or of interests”, as already seen (cf. supra).
The Court’s majority formalistically requires a speciﬁc reaction of the
respondent State to the claim made by the applicant State (in applying
the criterion of “awareness”, amounting, in my perception, to an obstacle
to access to justice), even in a situation where, as in the cas d’espèce, there
are two consistent and distinct courses of conduct on the part of the Con-
tending Parties.

   32. Furthermore, and in conclusion, there is a clear denial by the
respondent States (India, United Kingdom and Pakistan) of the argu-
ments made against them by the applicant State, the Marshall Islands. By
virtue of these denials there is a legal dispute between the Marshall Islands
and each of the three respondent States. The formalistic raising, by the
Court’s majority, of the higher threshold for the determination of the
existence of a dispute, is not in conformity with the jurisprudence con-
stante of the PCIJ and ICJ on the matter (cf. supra). Furthermore, in my
perception, it unduly creates a diﬃculty for the very access to justice (by
applicants) at international level, in a case on a matter of concern to the
whole of humankind. This is most regrettable.

      III. UN General Assembly Resolutions and OPINIO JURIS

  33. In the course of the proceedings in the present cases of Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament, both the applicant State (the Mar-
shall Islands) and the respondent States (India, United Kingdom and
Pakistan) addressed UN General Assembly resolutions on the matter of
nuclear disarmament (cf. Part VI, infra). This is the point that I purport
to consider, in sequence, in the present dissenting opinion, namely, in
addition to the acknowledgment before the ICJ (1995) of the authority
and legal value of General Assembly resolutions on nuclear weapons as
breach of the UN Charter, the distinct series of: (a) UN General Assem-
bly Resolutions on Nuclear Weapons (1961-1981); (b) UN General
Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992);
(c) UN General Assembly Resolutions Condemning Nuclear Weapons
(1982-2015); (d) UN General Assembly Resolutions following up the
ICJ’s 1996 Advisory Opinion (1996-2015).

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336   nuclear arms and disarmament (diss. op. cançado trindade)

        1. UN General Assembly Resolutions on Nuclear Weapons
                            (1961-1981)
   34. The 1970s was the First Disarmament Decade: it was so declared
by General Assembly resolution A/RES/2602 E (XXIV) of 16 December
1969, followed by two other resolutions of 1978 and 1980 on non-use of
nuclear weapons and prevention of nuclear war 29. The General Assembly
speciﬁcally called upon States to intensify eﬀorts for the cessation of the
nuclear arms race, nuclear disarmament and the elimination of other
weapons of mass destruction. Even before that, the ground-breaking
General Assembly resolution 1653 (XVI), of 24 November 1961, advanced
its célèbre “Declaration on the Prohibition of the Use of Nuclear and
Thermonuclear Weapons” (cf. Part V, infra). In 1979, when the First
Disarmament Decade was coming to an end, the General Assem-
bly, disappointed that the objectives of the ﬁrst decade had not been real-
ized, declared the 1980s as a Second Disarmament Decade 30.
Likewise, the 1990s were subsequently declared the Third Disarmament
Decade 31.

  35. In this ﬁrst period under review (1961-1981), the UN Gen-
eral Assembly paid continuously special attention to disarmament issues
and to nuclear disarmament in particular. May I refer to General Assem-
bly resolutions A/RES/2934 (XXVII) of 29 November 1972; A/RES/2936
(XXVII) of 29 November 1972; A/RES/3078 (XXVIII) of 6 December
1973; A/RES/3257 (XXIX) of 9 December 1974; A/RES/3466 (XXX) of
11 December 1975; A/RES/3478 (XXX) of 11 December 1975; A/
RES/31/66 of 10 December 1976; A/RES/32/78 of 12 December 1977; A/
RES/33/71 of 14 December 1978; A/RES/33/72 of 14 December 1978; A/
RES/33/91 of 16 December 1978; A/RES/34/83 of 11 December 1979; A/
RES/34/84 of 11 December 1979; A/RES/34/85 of 11 December 1979; A/
RES/34/86 of 11 December 1979; A/RES/35/152 of 12 December 1980; A/
RES/35/155 of 12 December 1980; A/RES/35/156 of 12 December 1980;
A/RES/36/81 of 9 December 1981; A/RES/36/84 of 9 December 1981; A/
RES/36/92 of 9 December 1981; A/RES/36/94 of 9 December 1981; A/
RES/36/95 of 9 December 1981; A/RES/36/97 of 9 December 1981; and
A/RES/36/100 of 9 December 1981.
  36. In 1978 and 1982, the UN General Assembly held two Special
Sessions on Nuclear Disarmament (respectively, the Tenth and
Twelfth Sessions), where the question of nuclear disarmament featured
prominently amongst the themes discussed. In fact, it was stressed that
the most immediate goal of disarmament is the elimination of the dan-
   29 Cf.   Namely, in sequence, General Assembly resolutions A/RES/33/71B
of 14 December 1978, and A/RES/35/152D of 12 December 1980.
   30 Cf. General Assembly resolutions A/RES/34/75 of 11 December 1979, and A/RES/

35/46 of 3 December 1980.
   31 Cf. General Assembly resolutions A/RES/43/78L of 7 December 1988, and A/RES/

45/62 A of 4 December 1990.

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337   nuclear arms and disarmament (diss. op. cançado trindade)

ger of a nuclear war. In a subsequent series of its resolutions (in the
following period of 1982-2015), as we shall see, the General Assembly
moved on straightforwardly to the condemnation of nuclear weapons
(cf. infra).
   37. In its resolutions adopted during the present period of 1972-1981,
the General Assembly repeatedly drew attention to the dangers of the
nuclear arms race for humankind and the survival of civilization and
expressed apprehension concerning the harmful consequences of nuclear
testing for the acceleration of such arms race. Thus, the General Assem-
bly reiterated its condemnation of all nuclear weapon tests, in whatever
environment they may be conducted. It called upon States that had not
yet done so to adhere to the 1963 Test Ban Treaty (banning nuclear tests
in the atmosphere, in outer space and under water) and called for the
conclusion of a comprehensive test ban treaty, which would ban nuclear
weapons tests in all environments (e.g. underground as well). Pending the
conclusion of such treaty, it urged NWS to suspend nuclear weapon tests
in all environments.

   38. The General Assembly also emphasized that NWS bear a special
responsibility for fulﬁlling the goal of achieving nuclear disarmament,
and in particular those nuclear-weapon States that are parties to interna-
tional agreements in which they have declared their intention to achieve
the cessation of the nuclear arms race. It further called speciﬁcally on the
Heads of State of the USSR and the United States to implement the pro-
cedures for the entry into force of the Strategic Arms Limitation agree-
ment (so-called “SALT” agreement).

   39. At the 84th plenary meeting, following the Tenth Special Session
on Disarmament, the General Assembly declared that the use of nuclear
weapons is a “violation of the Charter of the United Nations” and “a
crime against humanity”, and that the use of nuclear weapons should be
prohibited, pending nuclear disarmament 32. The General Assembly fur-
ther noted the aspiration of non-nuclear-weapon States [NNWS] to pre-
vent nuclear weapons from being stationed on their territories through
the establishment of nuclear-weapon-free zones, and supported their
eﬀorts to conclude an international convention strengthening the guaran-
tees for their security against the use or threat of use of nuclear weapons.
As part of the measures to facilitate the process of nuclear disarmament
and the non-proliferation of nuclear weapons, it requested the Committee
on Disarmament to consider the question of the cessation and prohibi-
tion of the production of ﬁssionable material for weapons purposes.

  32 Cf. General Assembly resolutions A/RES/33/71B of 14 December 1978, and A/

RES/35/152D of 12 December 1980.

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338   nuclear arms and disarmament (diss. op. cançado trindade)

             2. UN General Assembly Resolutions on Freeze
                  of Nuclear Weapons (1982-1992)
   40. Every year in the successive period 1982-1992 (following up on the
Tenth and Twelfth Special Sessions on Nuclear Disarmament, held
in 1978 and 1982, respectively), the General Assembly adopted resolu-
tions also calling for a nuclear-weapons freeze. May I refer to Gen-
eral Assembly resolutions A/RES/37/100A of 13 December 1982; A/
RES/38/73E of 15 December 1983; A/RES/39/63C of 12 December 1984;
A/RES/40/151C of 16 December 1985; A/RES/41/60E of 3 December
1986; A/RES/42/39B of 30 November 1987; A/RES/43/76B of 7 Decem-
ber 1988; A/RES/44/117D of 15 December 1989; A/RES/45/59D of
4 December 1990; A/RES/46/37C of 6 December 1991; and A/RES/47/53E
of 9 December 1992.
   41. These resolutions on freeze of nuclear weapons note that existing
arsenals of nuclear weapons are more than suﬃcient to destroy all life on
earth. They express the conviction that lasting world peace can be based
only upon the achievement of general and complete disarmament, under
eﬀective international control. In this connection, the aforementioned
General Assembly resolutions note that the highest priority objectives in
the ﬁeld of disarmament have to be nuclear disarmament and the elimina-
tion of all weapons of mass destruction. They at last call upon NWS to
agree to reach “a freeze on nuclear weapons”, which would, inter alia,
provide for “a simultaneous total stoppage of any further production of
ﬁssionable material for weapons purposes”.

   42. Such nuclear-weapons freeze is not seen as an end in itself but as
the most eﬀective ﬁrst step towards: (a) halting any further increase and
qualitative improvement in the existing arsenals of nuclear weapons; and
(b) activating negotiations for the substantial reduction and qualitative
limitation of nuclear weapons. From 1989 onwards, these resolutions also
set out the structure and scope of the prospective joint declaration
through which all nuclear-weapons States would agree on a nuclear-arms
freeze. Such freeze would encompass: (a) a comprehensive test ban;
(b) cessation of the manufacture of nuclear weapons; (c) a ban on all
further deployment of nuclear weapons; and (d) cessation of the produc-
tion of ﬁssionable material for weapons purposes.

       3. UN General Assembly Resolutions on Nuclear Weapons
                    as Breach of the UN Charter
              (Acknowledgment before the ICJ, 1995)
  43. Two decades ago, when UN General Assembly resolutions con-
demning nuclear weapons were not as numerous as they are today, they
were already regarded as authoritative in the views of States from distinct

87

339       nuclear arms and disarmament (diss. op. cançado trindade)

continents. This was made clear, e.g., by States which participated in the
advisory proceedings of 30 October to 15 November 1995 before the ICJ,
conducive to its Advisory Opinion of 8 July 1996 on the Threat or Use of
Nuclear Weapons. On the occasion, the view was upheld that those Gen-
eral Assembly resolutions expressed a “general consensus” and had a rel-
evant “legal value” 33. Resolution 1653 (XVI), of 1961, e.g., was invoked
as a “law-making” resolution of the General Assembly, in stating that the
use of nuclear weapons is contrary to the letter and spirit, and aims,
of the United Nations, and, as such, a “direct violation” of the
UN Charter 34.

   44. It was further stated that, already towards the end of 1995, “numer-
ous” General Assembly resolutions and declarations conﬁrmed the ille-
gality of the use of force, including nuclear weapons 35. Some
General Assembly resolutions (1653 (XVI), of 24 November 1961; 33/71B
of 14 December 1978; 34/83G of 11 December 1979; 35/152D of 12 Decem-
ber 1980; 36/92I of 9 December 1981; 45/59B of 4 December 1990; 46/37D
of 6 December 1991) were singled out for having signiﬁcantly declared
that the use of nuclear weapons would be a violation of the UN Charter
itself 36. The view was expressed that the series of General Assembly reso-
lutions (starting with resolution 1653 (XVI), of 24 November 1961)
amounted to “an authoritative interpretation” of humanitarian law trea-
ties as well as the UN Charter 37.

   45. In the advisory proceedings of 1995 before the ICJ, it was further
recalled that General Assembly resolution 1653 (XVI) of 1961 was
adopted in the form of a declaration, being thus “an assertion of the
law”, and, ever since, the General Assembly’s authority to adopt such
declaratory resolutions (in condemnation of nuclear weapons) was gener-
ally accepted; such resolutions declaring the use of nuclear weapons
“unlawful” were regarded as ensuing from the exercise of an “inherent”
power of the General Assembly 38. The relevance of General Assembly
resolutions has been reckoned by large groups of States. 39

   46. Ever since the aforementioned acknowledgment of the authority and
legal value of General Assembly resolutions in the course of the pleadings of

     33
     CR 1995/25, of 3 November 1995, pp. 52-53 (statement of Mexico).
     34
     CR 1995/22, of 30 October 1995, pp. 44-45 (statement of Australia).
  35 CR 1995/26, of 6 November 1995, pp. 23-24 (statement of Iran).
  36 CR 1995/28, of 9 November 1995, pp. 62-63 (statement of the Philippines).
  37 CR 1995/31, of 13 November 1995, p. 46 (statement of Samoa).
  38 CR 1995/27, of 7 November 1995, pp. 58-59 (statement of Malaysia).
  39 Cf., e.g., CR 1995/35, of 15 November 1995, p. 34, and cf. p. 22 (statement of

Zimbabwe, on its initiative as Chair of the Non-Aligned Movement).

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340    nuclear arms and disarmament (diss. op. cançado trindade)

late 1995 before the ICJ, those resolutions continue to grow in number until
today, clearly forming, in my perception, an opinio juris communis on nuclear
disarmament. In addition to those aforementioned, may I also review, in
sequence, two other series of General Assembly resolutions, extending to the
present, namely: the longstanding series of General Assembly resolutions
condemning nuclear weapons (1982-2015), and the series of General Assem-
bly resolutions following up the ICJ’s 1996 Advisory Opinion (1997-2015).

        4. UN General Assembly Resolutions Condemning Nuclear
                        Weapons (1982-2015)
  47. In the period 1982-2015, there is a long series of UN Gen-
eral Assembly resolutions condemning nuclear weapons. May I refer to
General Assembly resolutions A/RES/37/100C of 9 December 1982; A/
RES/38/73G of 15 December 1983; A/RES/39/63H of 12 December 1984;
A/RES/40/151F of 16 December 1985; A/RES/41/60F of 3 December
1986; A/RES/42/39C of 30 November 1987; A/RES/43/76E of 7 Decem-
ber 1988; A/RES/44/117C of 15 December 1989; A/RES/45/59B of
4 December 1990; A/RES/46/37D of 6 December 1991; A/RES/47/53C of
9 December 1992; A/RES/48/76B of 16 December 1993; A/RES/49/76E of
15 December 1994; A/RES/50/71E of 12 December 1995; A/RES/51/46D
of 10 December 1996; A/RES/52/39C of 9 December 1997; A/RES/53/78D
of 4 December 1998; A/RES/54/55D of 1 December 1999; A/RES/55/34G
of 20 November 2000; A/RES/56/25B of 29 November 2001; A/RES/57/94
of 22 November 2002; A/RES/58/64 of 8 December 2003; A/RES/59/102
of 3 December 2004; A/RES/60/88 of 8 December 2005; A/RES/61/97 of
6 December 2006; A/RES/62/51 of 5 December 2007; A/RES/63/75 of
2 December 2008; A/RES/64/59 of 2 December 2009; A/RES/65/80 of
8 December 2010; A/RES/66/57 of 2 December 2011; A/RES/67/64 of
3 December 2012; A/RES/68/58 of 5 December 2013; A/RES/69/69 of
2 December 2014; and A/RES/70/62 of 7 December 2015.
  48. In those resolutions, the General Assembly warned against the
threat by nuclear weapons to the survival of humankind. They were pre-
ceded by two ground-breaking historical resolutions, namely, Gen-
eral Assembly resolution 1 (I) of 24 January 1946, and General Assembly
resolution 1653 (XVI), of 24 November 1961 (cf. infra). In this new and
long series of resolutions condemning nuclear weapons (1982-2015), at
the opening of their preambular paragraphs the General Assembly states,
year after year, that it is
         “Alarmed by the threat to the survival of mankind and to the
      life-sustaining system posed by nuclear weapons and by their use,
      inherent in the concepts of deterrence,
         Convinced that nuclear disarmament is essential for the prevention
      of nuclear war and for the strengthening of international peace and
      security,

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341        nuclear arms and disarmament (diss. op. cançado trindade)

            Further convinced that a prohibition of the use or threat of use of
          nuclear weapons would be a step towards the complete elimination
          of nuclear weapons leading to general and complete disarmament
          under strict and eﬀective international control.”

  49. Those General Assembly resolutions next signiﬁcantly reaffirm, in
their preambular paragraphs, year after year, that
          “the use of nuclear weapons would be a violation of the Charter of
          the United Nations and a crime against humanity, as declared in its
          resolutions 1653 (XVI) of 24 November 1961, 33/71 B of 14 Decem-
          ber 1978, 34/83 G of 11 December 1979, 35/152 D of 12 December
          1980 and 36/92 I of 9 December 1981”.

   50. Still in their preambular paragraphs, those General Assembly reso-
lutions further note with regret the inability of the Conference on Disar-
mament to undertake negotiations with a view to achieving agreement on
a nuclear disarmament convention during each previous year. In their
operative part, those resolutions reiterate, year after year, the request that
the Committee on Disarmament undertakes, on a priority basis, negotia-
tions aiming at achieving agreement on an international convention pro-
hibiting the use or threat of use of nuclear weapons under any
circumstances, taking as a basis the text of the draft Convention on the
Prohibition of the Use of Nuclear Weapons.

   51. From 1989 (forty-fourth session) onwards, those resolutions begin
to note speciﬁcally that a multilateral agreement prohibiting the use or
threat of use of nuclear weapons should strengthen international security
and help to create the climate for negotiations leading to the complete
elimination of nuclear weapons. Subsequently, those resolutions come to
stress, in particular, that an international Convention would be a step
towards the complete elimination of nuclear weapons, leading to general
and complete disarmament, under strict and eﬀective international con-
trol.
   52. Clauses of the kind then evolve, from 1996 onwards 40, to refer
expressly to a time framework, i.e., that an international Convention
would be an important step in a phased programme towards the complete
elimination of nuclear weapons, within a speciﬁc framework of time.
More recent resolutions also expressly refer to the determination to
achieve an international Convention prohibiting the development, pro-
duction, stockpiling and use of nuclear weapons, leading to their ultimate
destruction.

     40   Cf., e.g., inter alia, General Assembly resolution A/RES/50/71E, of 12 December
1995.

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342   nuclear arms and disarmament (diss. op. cançado trindade)

            5. UN General Assembly Resolutions following up
              the ICJ’s 1996 Advisory Opinion (1996-2015)
   53. Ever since the delivery, on 8 July 1996, of the ICJ’s Advisory Opin-
ion on Nuclear Weapons to date, the General Assembly has been adopt-
ing a series of resolutions (1996-2015), as its follow-up. May I refer to
General Assembly resolutions A/RES/51/45 of 10 December 1996;
A/RES/52/38 of 9 December 1997; A/RES/53/77 of 4 December 1998;
A/RES/54/54 of 1 December 1999; A/RES/55/33 of 20 November 2000;
A/RES/56/24 of 29 November 2001; A/RES/57/85 of 22 November 2002;
A/RES/58/46 of 8 December 2003; A/RES/59/83 of 3 December 2004;
A/RES/60/76 of 8 December 2005; A/RES/61/83 of 6 December 2006;
A/RES/62/39 of 5 December 2007; A/RES/63/49 of 2 December 2008;
A/RES/64/55 of 2 December 2009; A/RES/65/76 of 8 December 2010;
A/RES/66/46 of 2 December 2011; A/RES/67/33 of 3 December 2012;
A/RES/68/42 of 5 December 2013; A/RES/69/43 of 2 December 2014; and
A/RES/70/56 of 7 December 2015. These resolutions make a number of
signiﬁcant statements.

   54. The series of aforementioned General Assembly resolutions on
follow-up to the 1996 Advisory Opinion of the ICJ (1996-2015) begins by
expressing the General Assembly’s belief that “the continuing existence of
nuclear weapons poses a threat to humanity” and that “their use would
have catastrophic consequences for all life on earth”, and, further, that
“the only defence against a nuclear catastrophe is the total elimination of
nuclear weapons and the certainty that they will never be produced again”
(2nd preambular paragraph). The General Assembly resolutions reiterat-
edly reaﬃrm “the commitment of the international community to the
realization of the goal of a nuclear-weapon-free world through the total
elimination of nuclear weapons” (3rd preambular paragraph). They recall
their request to the Conference on Disarmament to establish an ad hoc
Committee to commence negotiations on a phased programme of nuclear
disarmament, aiming at the elimination of nuclear weapons, within a
“time bound framework”; they further reaﬃrm the role of the Conference
on Disarmament as the single multilateral disarmament negotiating
forum.
   55. The General Assembly then recalls, again and again, that “the sol-
emn obligations of States parties, undertaken in Article VI of the Treaty
on the Non-Proliferation of Nuclear Weapons (NPT), particularly to pur-
sue negotiations in good faith on eﬀective measures relating to cessation
of the nuclear arms race at an early date and to nuclear disarmament”
(4th preambular paragraph). They express the goal of achieving a legally
binding prohibition on the development, production, testing, deployment,
stockpiling, threat or use of nuclear weapons, and their destruction under
“eﬀective international control”. They signiﬁcantly call upon all States to
fulﬁl promptly the obligation leading to an early conclusion of a Conven-
tion prohibiting the development, production, testing, deployment, stock-

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piling, transfer, threat or use of nuclear weapons and providing for their
elimination 41.

   56. Those resolutions (from 2003 onwards) express deep concern at the
lack of progress made in the implementation of the “thirteen steps”
agreed to, at the 2000 Review Conference, for the implementation of
Article VI of the NPT. The aforementioned series of General Assembly
resolutions include, from 2010 onwards, an additional (6th) preambular
paragraph, expressing “deep concern at the catastrophic humanitarian
consequences of any use of nuclear weapons”, and reaﬃrming, in this
context, “the need for all States at all times to comply with applicable
international law, including international humanitarian law”. Those
follow-up General Assembly resolutions further recognize

      “with satisfaction that the Antarctic Treaty, the Treaties of Tlatelolco,
      Rarotonga, Bangkok and Pelindaba, and the Treaty on a Nuclear-
      Weapon-Free Zone in Central Asia, as well as Mongolia’s nuclear-
      weapon-free status, are gradually freeing the entire southern
      hemisphere and adjacent areas covered by those treaties from nuclear
      weapons” (10th preambular paragraph).

   57. More recent resolutions (from 2013 onwards) are signiﬁcantly fur-
ther expanded. They call upon all NWS to undertake concrete disarma-
ment eﬀorts, stressing that all States need to make special eﬀorts to
achieve and maintain a world without nuclear weapons. They also take
note of the “Five-Point Proposal on Nuclear Disarmament” made by the
UN Secretary-General (cf. Part XVII, infra), and recognize the need for a
multilaterally negotiated and legally binding instrument to assure that
NNWS stand against the threat or use of nuclear weapons, pending the
total elimination of nuclear weapons. In their operative part, the same
series of General Assembly resolutions underline the ICJ’s unanimous
conclusion, in its 1996 Advisory Opinion on the Threat or Use of Nuclear
Weapons, 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” (para. 1).

   58. Looking at this particular series of General Assembly follow-up
resolutions as a whole, it should not pass unnoticed that they contain
paragraphs referring to the obligation to pursue and conclude, in good
faith, negotiations leading to nuclear disarmament, without any reference

   41 Note that in earlier resolutions, the following year is explicitly referenced, i.e., States

should commence negotiations in “the following year”. This reference is removed in later
resolutions.

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to the NPT or to States parties to it. They rather refer to that obligation
as a general one, not grounded on any treaty provision. All States, and
not only States parties to the NPT, are called upon to fulﬁl promptly
that obligation, incumbent upon all States, to report (to the Secretary-
General) on their compliance with the resolutions at issue. There are,
notably, other paragraphs in those resolutions that are speciﬁcally
directed at nuclear-weapon States, or make speciﬁc references to the
NPT. In sum, references to all States are deliberate, and in the absence
of any references to a treaty or other speciﬁcally-imposed international
obligation, this thus points towards a customary law obligation to nego-
tiate and achieve nuclear disarmament.

                   IV. UN Security Council Resolutions
                            and OPINIO JURIS

   59. Like the UN General Assembly, the UN Security Council has also
often dwelt upon the matter at issue. May I refer, inter alia, to Secu-
rity Council resolutions S/23500, of 31 January 1992; S/RES/984,
of 11 April 1995; S/RES/1540, of 28 April 2004; S/RES/1673, of 27 April
2006; S/RES/1810, of 25 April 2008; S/RES/1887, of 24 September 2009;
and S/RES/1997, of 11 July 2011, — to which others can be added 42. May
I at ﬁrst recall that, at a Security Council’s meeting at the level of Heads
of State and Government, held on 31 January 1992, the President of the
UN Security Council made a statement on behalf of the members of the
Security Council that called upon all member States to fulﬁl their obliga-
tions on matters of arms control and disarmament, and to prevent the
proliferation of all weapons of mass destruction 43 (encompassing nuclear,
chemical, and biological weapons).

  60. The statement expressed the feeling prevailing at the time that the
end of the Cold War “has raised hopes for a safer, more equitable and
more humane world”, giving now to the world “the best chance of achiev-
ing international peace and security since the foundation of the
United Nations” 44. The members of the Security Council then warned
against the threat to international peace and security of all weapons of

   42 Cf. also Security Council resolutions S/RES/1695 of 15 July 2006; S/RES/1718

of 14 October 2006; S/RES/1874 of 12 June 2009; S/RES/1928 of 7 June 2010; S/RES/2094
of 7 March 2013; S/RES/2141 of 5 March 2014; S/RES/2159 of 9 June 2014; S/RES/2224
of 9 June 2015; S/RES/2270 of 2 March 2016. In preambular paragraphs of all these
Security Council resolutions, the Security Council reaﬃrms, time and time again, that the
proliferation of nuclear, chemical and biological weapons, and their means of delivery,
constitutes a threat to international peace and security.
   43 UN doc. S/23500, of 31 January 1992, pp. 1-5.
   44 Ibid., pp. 2 and 5.

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345        nuclear arms and disarmament (diss. op. cançado trindade)

mass destruction, and expressed their commitment to take appropriate
action to prevent “the spread of technology related to the research for or
production of such weapons” 45. They further stressed the importance of
“the integral role in the implementation” of the NPT of “fully eﬀective
IAEA safeguards”, and of “eﬀective export controls”; they added that
they would take “appropriate measures in the case of any violations noti-
ﬁed to them by the IAEA” 46.
   61. The proliferation of all weapons of mass destruction is deﬁned in
the aforementioned Security Council statement, notably, as a threat to
international peace and security, — a point which was to be referred to,
in subsequent resolutions of the Security Council, to justify its action
under Chapter VII of the UN Charter. In three of its subsequent resolu-
tions, in a preambular paragraph (resolution 1540, of 28 April 2004,
para. 2; resolution 1810, of 25 April 2008, para. 3; and resolution 1887,
of 24 September 2009, para. 2), the Security Council reaﬃrms the state-
ment of its President (adopted on 31 January 1992), and, also in other
resolutions, further asserts (also in preambular paragraphs) that the pro-
liferation of nuclear, chemical and biological weapons is a threat to inter-
national peace and security 47 and that all States need to take measures to
prevent such proliferation.
   62. In resolution S/RES/1540 of 28 April 2004, adopted by the Security
Council acting under Chapter VII of the UN Charter, it sets forth legally
binding obligations on all UN Member States to set up and enforce
appropriate and eﬀective measures against the proliferation of nuclear,
chemical, and biological weapons, — including the adoption of controls
and a reporting procedure for UN Member States to a Committee of the
Security Council (sometimes referred to as the “1540 Committee”). Sub-
sequent Security Council resolutions reaﬃrm resolution S/RES/1540 and
call upon UN Member States to implement it.

   63. The UN Security Council refers, in particular, in two of its resolu-
tions (S/RES/984, of 11 April 1995; and S/RES/1887 of 24 September
2009), to the obligation to pursue negotiations in good faith in relation to
nuclear disarmament. In its preamble, Security Council resolu-
tion S/RES/984 aﬃrms the need for all States parties to the NPT “to com-
ply fully with all their obligations”; in its operative part, it further
          “[u]rges all States, as provided for in Article VI of the Treaty on the
          Non-Proliferation of Nuclear Weapons, to pursue negotiations in

     45
      UN doc. S/23500, of 31 January 1992, p. 4.
     46
      Ibid.
   47 Cf. e.g. Security Council resolutions S/RES/1540, of 28 April 2004; S/RES/1673,

of 27 April 2006; S/RES/1810, of 25 April 2008; S/RES/1977, of 20 April 2011. And cf. also
resolutions S/RES/1695, of 15 July 2006; S/RES/1718, of 14 October 2006; S/RES/1874,
of 12 June 2009; S/RES/1928, of 7 June 2010; S/RES/2094, of 7 March 2013; S/RES/2141, of
5 March 2014; S/RES/2159, of 9 June 2014; S/RES/2224, of 9 June 2015; and S/RES/2270,
of 2 March 2016.

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346    nuclear arms and disarmament (diss. op. cançado trindade)

      good faith on eﬀective measures relating to nuclear disarmament and
      on a treaty on general and complete disarmament under strict and
      eﬀective international control which remains a universal goal” (Secu-
      rity Council resolution 984/1985 para. 8).
It should not pass unnoticed that Security Council resolution S/RES/984
pre-dates the ICJ’s 1996 Advisory Opinion on the Threat or Use of
Nuclear Weapons.
   64. And Security Council resolution S/RES/1887 of 24 September
2009, in its operative part, again calls upon States parties to the NPT “to
comply fully with all their obligations and fulﬁl their commitments under
the Treaty” (para. 2), and, in particular, “pursuant to Article VI of the
Treaty, to undertake to pursue negotiations in good faith on eﬀective
measures relating to nuclear arms reduction and disarmament”; further-
more, it calls upon “all other States to join in this endeavour” (para. 5).
It should not pass unnoticed that it is a general call, upon all UN Mem-
ber States, whether or not parties to the NPT.

   65. In my perception, the aforementioned resolutions of the Security
Council, like those of the General Assembly (cf. supra), addressing all
UN Member States, provide signiﬁcant elements of the emergence of an
opinio juris, in support of the gradual formation of an obligation of cus-
tomary international law, corresponding to the conventional obligation
under Article VI of the NPT. In particular, the fact that the Secu-
rity Council calls upon all States, and not only States parties to the NPT,
to pursue negotiations towards nuclear disarmament in good faith (or to
join the NPT State parties in this endeavour) is signiﬁcant. It is an indica-
tion that the obligation is incumbent on all UN Member States, irrespec-
tively of their being or not parties to the NPT.

       V. The Saga of the United Nations in the Condemnation
                        of Nuclear Weapons

   66. The UN resolutions (of the General Assembly and the Security
Council) that I have just reviewed (supra) portray the United Nations’
longstanding saga in the condemnation of nuclear weapons. This saga
goes back to the birth and earlier years of the United Nations. In fact,
nuclear weapons were not in the minds of the delegates to the San Fran-
cisco Conference of June 1945, at the time when the United Nations
Charter was adopted on 26 June 1945. The United States’ dropping of
atomic bombs over Hiroshima and Nagasaki, heralding the nuclear age,
occurred on 6 and 9 August 1945, respectively, over ten weeks before the
UN Charter’s entry into force, on 24 October 1945.
   67. As soon as the United Nations Organization came into being, it
promptly sought to equip itself to face the new challenges of the nuclear

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347    nuclear arms and disarmament (diss. op. cançado trindade)

age: the General Assembly’s very ﬁrst resolution, — resolution 1 (I)
of 24 January 1946, — thus, established a Commission to deal with the
matter, entrusted with submitting reports to the Security Council “in the
interest of peace and security” (para. 2 (a)), as well as with making pro-
posals for “control of atomic energy to the extent necessary to ensure its
use only for peaceful purposes”, and for “the elimination from national
armaments of atomic weapons and of all other major weapons adaptable
to mass destruction” (para. 5 (b) and (c)).
   68. One decade later, in 1956, the International Atomic Energy Agency
(IAEA) was established. And half a decade later, in 1961, the General
Assembly adopted a ground-breaking resolution: it would be proper here
to recall the precise terms of the historical General Assembly resolu-
tion 1653 (XVI), of 24 November 1961, titled “Declaration on the Prohi-
bition of the Use of Nuclear and Thermo-Nuclear Weapons”. That
célèbre resolution 1653 (1961) remains contemporary today, and, 55 years
later, continues to require close attention; in it,
         “The General Assembly,
         Mindful of its responsibility under the Charter of the United Nations
      in the maintenance of international peace and security, as well as in
      the consideration of principles governing disarmament,

         Gravely concerned that, while negotiations on disarmament have
      not so far achieved satisfactory results, the armaments race, particu-
      larly in the nuclear and thermo-nuclear ﬁelds, has reached a danger-
      ous stage requiring all possible precautionary measures to protect
      humanity and civilization from the hazard of nuclear and thermo-
      nuclear catastrophe,

         Recalling that the use of weapons of mass destruction, causing
      unnecessary human suﬀering, was in the past prohibited, as being
      contrary to the laws of humanity and to the principles of international
      law, by international declarations and binding agreements, such as
      the Declaration of St. Petersburg of 1868, the Declaration of the Brus-
      sels Conference of 1874, the Conventions of the Hague Peace Con-
      ferences of 1899 and 1907, and the Geneva Protocol of 1925, to which
      the majority of nations are still parties,
         Considering that the use of nuclear and thermo-nuclear weapons
      would bring about indiscriminate suﬀering and destruction to man-
      kind and civilization to an even greater extent than the use of those
      weapons declared by the aforementioned international declarations
      and agreements to be contrary to the laws of humanity and a crime
      under international law,
         Believing that the use of weapons of mass destruction, such as
      nuclear and thermo-nuclear weapons, is a direct negation of the high
      ideals and objectives which the United Nations has been established
      to achieve through the protection of succeeding generations from the

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348    nuclear arms and disarmament (diss. op. cançado trindade)

      scourge of war and through the preservation and promotion of their
      cultures,
      1. Declares that:
          (a) The use of nuclear and thermo-nuclear weapons is contrary
              to the spirit, letter and aims of the United Nations and, as
              such, a direct violation of the Charter of the United Nations;
          (b) The use of nuclear and thermo-nuclear weapons would exceed
              even the scope of war and cause indiscriminate suﬀering and
              destruction to mankind and civilization and, as such, is con-
              trary to the rules of international law and to the laws of
              humanity;
          (c) The use of nuclear and thermo-nuclear weapons is a war
              directed not against an enemy or enemies alone but also
              against mankind in general, since the peoples of the world not
              involved in such a war will be subjected to all the evils gener-
              ated by the use of such weapons;
          (d) Any State using nuclear and thermo-nuclear weapons is to be
              considered as violating the Charter of the United Nations, as
              acting contrary to the laws of humanity and as committing a
              crime against mankind and civilization;
      2. Requests the Secretary-General to consult the Governments of
         Member States to ascertain their views on the possibility of con-
         vening a special conference for signing a convention on the pro-
         hibition of the use of nuclear and thermo-nuclear weapons for
         war purposes and to report on the results of such consultation to
         the General Assembly at its seventeenth session.”
   69. Over half a century later, the lucid and poignant declaration con-
tained in General Assembly resolution 1653 (1961) appears endowed with
permanent topicality, as the whole international community remains still
awaiting for the conclusion of the propounded general convention on the
prohibition of nuclear and thermo-nuclear weapons: nuclear disarma-
ment remains still a goal to be achieved by the United Nations today, as
it was in 1961. The Comprehensive Nuclear Test Ban Treaty (CTBT),
adopted on 24 September 1996, has not yet entered into force, although
164 States have ratiﬁed it to date.
   70. It is beyond the scope of the present dissenting opinion to dwell
upon the reasons why, already for two decades, one remains awaiting for
the CTBT’s entry into force 48. Suﬃce it here to recall that the CTBT pro-
vides (Art. XIV) that for it to enter into force, the 44 States speciﬁed in its

   48 For a historical account and the perspectives of the CTBT, cf., e.g., K. A. Hansen, The

Comprehensive Nuclear Test Ban Treaty, Stanford University Press, 2006, pp. 1-84; [Various
Authors], Nuclear Weapons after the Comprehensive Test Ban Treaty (ed. E. Arnett),
SIPRI/Oxford University Press, 1996, pp. 1-141; J. Ramaker, J. Mackby, P. D. Marshall
and R. Geil, The Final Test — A History of the Comprehensive Nuclear-Test-Ban Treaty
Negotiations, Ed. Prep. Comm. of CTBTO, 2003, pp. 1-265.

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349    nuclear arms and disarmament (diss. op. cançado trindade)

Annex 2 need to ratify it 49; a number of these States have not yet ratiﬁed
the CTBT, including some NWS, like India and Pakistan. NWS have
invoked distinct reasons for their positions conditioning nuclear disarma-
ment (cf. infra). The entry into force of the CTBT has thus been delayed.

   71. Recently, in a panel in Vienna (on 27 April 2016) in commemora-
tion of the twentieth anniversary of the CTBT, the UN Secretary-General
(Ban Ki-moon) pondered that there have been advances in the matter,
but there remains a long way to go, in the determination “to bring into
force a legally binding prohibition against all nuclear tests”. He recalled
to have

      “repeatedly pointed to the toxic legacy that some 2,000 tests left on
      people and the environment in parts of Central Asia, North Africa,
      North America and the South Paciﬁc. Nuclear testing poisons water,
      causes cancers, and pollutes the area with radioactive fall-out for gen-
      erations and generations to come. We are here to honour the victims.
      The best tribute to them is action to ban and to stop nuclear testing.
      Their suﬀerings should teach the world to end this madness.” 50
He then called on the (eight) remaining CTBT Annex 2 States “to sign
and ratify the Treaty without further delay”, so as to strengthen its goal
of universality; in this way — he concluded — “we can leave a safer
world, free of nuclear tests, to our children and to succeeding generations
of this world” 51.
   72. To this one may add the unaccomplished endeavours of the
UN General Assembly Special Sessions on Disarmament. Of the three
Special Sessions held so far (in 1978, Tenth Special Session; in 1982,
Twelfth Special Session; and in 1988, Fifteenth Special Session) 52, the
ﬁrst one appears to have been the most signiﬁcant one so far. The Final
Document adopted unanimously (without a vote) by the First Special
Session on Disarmament sets up a programme of action on disarmament
and the corresponding mechanism in its current form.
   73. That Final Document of the ﬁrst General Assembly Special Ses-
sion on Disarmament (1978) addresses nuclear disarmament in its distinct
aspects. In this respect, the General Assembly begins by observing that
   49 Those 44 States, named in Annex 2, participated in the CTBT negotiations at the

Conference on Disarmament, from 1994 to 1996, and possessed nuclear reactors at that
time.
   50 UN doc. SG/SM/17709-DC/3628, of 27 April 2016, pp. 1-2.
   51 Ibid., p. 2.
   52 Ever since, several General Assembly resolutions have called for a Fourth Special

Session on Disarmament, but it has not yet taken place.

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350       nuclear arms and disarmament (diss. op. cançado trindade)

the accumulation of nuclear weapons constitutes a threat to the future of
humankind (Final Doc., para. 1) 53, in eﬀect “the greatest danger” to
humankind and to “the survival of civilization” (ibid., para. 47). It adds
that the arms race, particularly in its nuclear aspect, is incompatible with
the principles enshrined in the United Nations Charter (ibid., para. 12). In
its view, the most eﬀective guarantee against the dangers of nuclear war is
the complete elimination of nuclear weapons (ibid., paras. 8 and 56).

  74. While disarmament is the responsibility of all States, the General
Assembly asserts that NWS have the primary responsibility for nuclear
disarmament. There is pressing need of “urgent negotiations of agree-
ments” to that end, and in particular to conclude “a treaty prohibiting
nuclear-weapon tests” (ibid., paras. 50-51). It further stresses the impor-
tance of nuclear-weapon-free zones that have been established or are the
subject of negotiations in various parts of the globe (ibid., paras. 60-64).

   75. The Conference on Disarmament, since 1979 the sole multilateral
disarmament-negotiating forum of the international community, has
helped to negotiate multilateral arms-limitation and disarmament agree-
ments 54. It has focused its work on four main issues, namely: nuclear
disarmament, prohibition of the production of ﬁssile material for weapon
use, prevention of arms race in outer space, and negative security assur-
ances. Yet, since the adoption of the CTBT in 1996, the Conference on
Disarmament has been largely deadlocked, in face of the invocation of
divergent security interests, added to the understanding that nuclear
weapons require mutuality; furthermore, the Rules of Procedure of the
Conference provide that all decisions must be adopted by consensus. In
sum, some States blame political factors for causing its longstanding
stalemate, while others attribute it to outdated procedural rules.

   76. After all, in historical perspective, some advances have been
attained in the last decades in respect of other weapons of mass destruc-
tion, as illustrated by the adoption of the Convention on the Prohibition
of the Development, Production and Stockpiling of Bacteriological (Bio-
logical) and Toxin Weapons and on Their Destruction (on 10 April 1972),
as well as the Convention on the Prohibition of the Development, Pro-
duction, Stockpiling and Use of Chemical Weapons and on Their
Destruction (on 13 January 1993); distinctly from the CTBT (supra),
these two Conventions have already entered into force (on 26 March
1975, and on 29 April 1997, respectively).
     53
     UN doc. A/RES/S-10/2, of 30 June 1978 ; cf. also paras. 18 and 20.
     54
     E.g., the aforementioned NPT, CTBT, the Biological Weapons Convention, and the
Chemical Weapons Convention, in addition to the sea-bed treaties, and the Convention
on the Prohibition of Military or any other Hostile Use of Environmental Modiﬁcation
Techniques.

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351   nuclear arms and disarmament (diss. op. cançado trindade)

   77. If we look at conventional international law only, weapons of mass
destruction (poisonous gases, biological and chemical weapons) have
been outlawed; yet, nuclear weapons, far more destructive, have not been
banned yet. This juridical absurdity nourishes the positivist myopia, or
blindness, in inferring therefrom that there is no customary international
obligation of nuclear disarmament. Positivists only have eyes for treaty
law, for individual State consent, revolving in vicious circles, unable to
see the pressing needs and aspirations of the international community as
a whole, and to grasp the universality of contemporary international
law — as envisaged by its “founding fathers”, already in the sixteenth-
seventeenth centuries, — with its underlying fundamental principles
(cf. infra).

   78. The truth is that, in our times, the obligation of nuclear disarma-
ment has emerged and crystallized, in both conventional and customary
international law, and the United Nations has been giving a most valu-
able contribution to this along the decades. The matter at issue, the
United Nations saga in this domain, was brought to the attention of the
ICJ, two decades ago, in the advisory proceedings that led to its Advisory
Opinion of 1996 on the Threat or Use of Nuclear Weapons, and now
again, two decades later, in the present contentious proceedings in the
cases of Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament, opposing the Mar-
shall Islands to India, Pakistan and the United Kingdom, respectively.

   79. The aforementioned UN resolutions were in eﬀect the object of atten-
tion on the part of the Contending Parties before the Court (Marshall Islands,
India, Pakistan and the United Kingdom). In the oral phase of their argu-
ments, they were dealt with by the participating States (Marshall Islands,
India and the United Kingdom), and, extensively so, in particular, by the
Marshall Islands and India. The key point is the relation of those resolu-
tions with the emergence of opinio juris, of relevance to the identiﬁcation of
a customary international law obligation in the present domain. May I turn,
ﬁrst, to the positions sustained by the Contending Parties, and then, to the
questions I put to them in the public sitting of 16 March 2016 before the ICJ
in the cas d’espèce, and the responses received from them.

      VI. UN Resolutions and the Emergence of OPINIO JURIS:
             The Positions of the Contending Parties

   80. In their written submissions and oral arguments before the Court
in the present case of Obligations concerning Negotiations relating to Ces-
sation of the Nuclear Arms Race and to Nuclear Disarmament, the Mar-

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352    nuclear arms and disarmament (diss. op. cançado trindade)

shall Islands addresses General Assembly resolutions on nuclear
disarmament, in relation to the development of customary international
law 55; it also refers to Security Council resolutions 56. Quoting the ICJ’s
Advisory Opinion of 1996, it contends (perhaps not as clearly as it could
have done) that although General Assembly resolutions lack binding
force, they may “sometimes have normative value”, and thus contribute
to the emergence of an opinio juris 57.
   81. In its written submissions and oral arguments before the Court,
India addresses UN General Assembly resolutions on follow-up to the
ICJ’s Advisory Opinion of 1996, pointing out that it is the only nuclear-
weapon State that has co-sponsored and voted in favour of such resolu-
tions 58. India supports nuclear disarmament “in a time-bound, universal,
non-discriminatory, phased and veriﬁable manner” 59. And it criticizes the
Marshall Islands for not supporting the General Assembly follow-up res-
olutions in its own voting pattern (having voted against one of them, in
favour once, and all other times abstained) 60.

   82. In its preliminary objections (of 15 June 2015), the United King-
dom, for its part, after recalling the Marshall Islands’ position on earlier
UN General Assembly resolutions, in 1960s and 1970s (paras. 21 and 98
(c) and (h)), then refers to its own position thereon (paras. 84 and 99 (c)).
It also refers to UN Security Council resolutions (para. 92). It then recalls
the Marshall Islands’ arguments — e.g., that “the United Kingdom has
always voted against” General Assembly resolutions on the follow-up of
the ICJ Advisory Opinion of 1996, and of the UN High-Level Meetings
in 2013 and 2014 (paras. 98 (e) and (h)), — in order to rebut them
(paras. 99-103).

   83. As for Pakistan, though it informed the Court of its decision not to
participate in the oral phase of the present proceedings (letter of 2 March
2016), in the submissions in its Counter-Memorial it argues that the ICJ
1996 Advisory Opinion nowhere stated that the obligation under Arti-
cle VI of the NPT was a general obligation or that it was opposable erga
omnes; in its view, there was no prima facie evidence to this eﬀect erga
omnes 61. As to the UN General Assembly resolutions following up the
ICJ’s 1996 Advisory Opinion, Pakistan notes that it has voted in favour
of these resolutions from 1997 to 2015, and by contrast, it adds, the Mar-
shall Islands abstained from voting in 2002 and 2003 and again from 2005
to 2012 62.

  55 CR 2016/1, of 7 March 2016, para. 7.
  56 Ibid., para. 8.
  57 Ibid., para. 7.
  58 CR 2016/4, of 10 March 2016, para. 1.
  59 Counter-Memorial of India, p. 9, para. 13.
  60 Ibid., p. 8, para. 12.
  61 Counter-Memorial of Pakistan, p. 8, para. 2.3.
  62 Ibid., para. 2.4.

101

353     nuclear arms and disarmament (diss. op. cançado trindade)

  84. After recalling that it is not a party to the NPT 63, Pakistan further
argues that General Assembly resolutions do not have binding force and
cannot thus, in its view, give rise to obligations enforceable against a
State 64. Pakistan concludes that the General Assembly resolutions do not
support the proposition that there exists a customary international law
obligation “rooted” in Article VI of the NPT. Rather, it is the NPT that
underpins the Marshall Islands’ claims 65.

   85. In sum, the United Kingdom has voted against such resolutions,
the Marshall Islands has abstained in most of them, India and Pakistan
have voted in favour of them. Despite these distinct patterns of voting, in
my view the UN General Assembly resolutions reviewed in the present
dissenting opinion, taken altogether, are not at all deprived of their con-
tribution to the conformation of opinio juris as to the formation of a cus-
tomary international law obligation of nuclear denuclearization. After all,
they are resolutions of the UN General Assembly itself (and not only of
the large majority of UN Member States which voted in their favour);
they are resolutions of the United Nations Organization itself, addressing
a matter of common concern of humankind as a whole (cf. Part XX,
infra).

              VII. Questions from the Bench and Responses
                            from the Parties

   86. At the end of the public sittings before the Court in the present
case of Marshall Islands v. India, I deemed it ﬁt to put the following ques-
tions (on 16 March 2016, in the morning) to the Contending Parties:
          “I have questions to put to both Contending Parties, the Mar-
       shall Islands and India. My questions are the following:
          In the course of the written submissions and oral arguments, the
       two Contending Parties, the Marshall Islands and India, both referred
       to UN General Assembly resolutions on nuclear disarmament. Par-
       allel to the resolutions on the matter which go back to the early 70s
       (First Disarmament Decade), there have been two more recent series
       of General Assembly resolutions, namely: those condemning nuclear
       weapons, extending from 1982 to date, and those adopted as a fol-
       low-up to the 1996 ICJ Advisory Opinion on Nuclear Weapons,
       extending so far from 1997 to 2015. In relation to this last series of
       General Assembly resolutions, referred to by the Contending Par-
       ties, I would like to ask both the Marshall Islands and India whether,
       in their understanding, such General Assembly resolutions are

  63 Counter-Memorial of Pakistan, p. 14, para. 4.4; p. 30, para. 7.55.
  64 Ibid., p. 38, paras. 7.95-7.97.
  65 Ibid., para. 7.97.

102

354     nuclear arms and disarmament (diss. op. cançado trindade)

       constitutive of an expression of opinio juris, and, if so, what in their
       view is their relevance to the formation of a customary international
       law obligation to pursue negotiations leading to nuclear disarma-
       ment, and what is their incidence upon the question of the existence
       of a dispute between the Parties.” 66
  87. One week later (on 23 March 2016), India and the Marshall Islands
submitted to the ICJ their written replies to my questions. In its response
to them, India began by recalling a passage of the ICJ’s 1996 Advisory
Opinion on the Threat or Use of Nuclear Weapons, whereby the Court
acknowledged that
         “General Assembly resolutions, even if they are not binding, may
       sometimes have normative value. They can, in certain circumstances,
       provide evidence important for establishing the existence of a rule or
       the emergence of an opinio juris. To establish whether this is true of
       a given General Assembly resolution, it is necessary to look at its
       content and the conditions of its adoption; it is also necessary to see
       whether an opinio juris exists as to its normative character.” 67

   88. In India’s view, the series of General Assembly resolutions advo-
cating measures of restraint, with a view to slowing down vertical prolif-
eration 68, do not in themselves constitute comprehensive proposals for
the global elimination of nuclear weapons; India, thus, focused on the
voting pattern relating to two other series of General Assembly resolu-
tions — those on nuclear disarmament, and those on the follow-up to the
ICJ’s 1996 Advisory Opinion. As to these latter, India noted that approx-
imately two-thirds of the Member States of the United Nations vote in
favour, while the others either abstain or vote against 69; India further
noted the lack of consensus on the biennial resolutions following up
nuclear disarmament measures agreed to at the Review Conferences of
the States parties to the NPT.

   89. India argued that “the lack of unanimity and the abstention or
negative vote of States whose interests are specially aﬀected cast doubt on
the normative value of these UN General Assembly resolutions on the
existence of an opinio juris” 70. India considered that an opinio juris would
be facilitated by a number of measures, including reaﬃrmation of the
unequivocal commitment by all nuclear-weapon States to the goal of
complete elimination of nuclear weapons, and an agreement on a
step-by-step process of universal commitment to the global elimination of

  66  CR 2016/8, of 16 September 2016, pp. 38-39.
  67  I.C.J. Reports 1996 (I), pp. 254-255, para. 70.
   68 Cf. Replies of the Parties [India] to the Questions Put to Them by Judge Cançado

Trindade, ICJ doc. MIIND 2016/14, of 23 March 2016, pp. 2-3, paras. 4-8.
   69 Ibid., p. 3, para. 11.
   70 Ibid., p. 5, para. 14.

103

355     nuclear arms and disarmament (diss. op. cançado trindade)

nuclear weapons 71. As to the incidence of these resolutions on the exis-
tence of a dispute in the cas d’espèce, India argued that its own voting
record and that of the Marshall Islands indicate that both States support
these resolutions and do not hold opposing views on the question of pur-
suing and bringing to a conclusion negotiations leading to nuclear disar-
mament; accordingly, in its view, there is no dispute between them 72.

   90. The Marshall Islands, for its part, also referred to the ICJ’s
1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, as well
as to a number of General Assembly resolutions upholding the obligation
to pursue negotiations leading to nuclear disarmament, in support of its
position as to the existence of a customary international law obligation to
this end. It then also referred to the ICJ’s obiter dictum in the case of
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), to the eﬀect that “opinio juris may, though
with all due caution, be deduced from, inter alia, the attitude of the Par-
ties and the attitude of States towards certain General Assembly
resolutions” 73.
   91. In the perception of the Marshall Islands, the attitude of States
towards General Assembly resolutions adopted in the period 1982-1995
indicates an emerging opinio juris on the obligation to conduct negotia-
tions in good faith leading to general and complete nuclear disarma-
ment 74. The Marshall Islands then states that the attitude of States to
resolutions following-up the 1996 ICJ’s Advisory Opinion — those aﬃrm-
ing the existence of an obligation to pursue negotiations leading to nuclear
disarmament — constitutes an expression of opinio juris, in support of a
customary international obligation to this end 75.

   92. As to the incidence of General Assembly resolutions on the exis-
tence of a dispute in the cas d’espèce, the Marshall Islands contends that
opposing attitudes of States to such resolutions may contribute to dem-
onstrating the existence of a dispute; however, the importance to be
attributed to a State’s attitude to resolutions must be determined in the
light of the speciﬁc circumstances of any given case, as the endorsement
of certain resolutions may be contradicted by subsequent conduct of the

   71 Op. cit. supra note 68, p. 6, para. 17.
   72 Ibid., para. 18.
   73 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United

States of America), Merits, Judgment, I.C.J. Reports 1986, p. 100, para. 188. The
Marshall Islands also cited the UN International Law Commission’s Draft Conclusions
on the Identification of Customary International Law (2015), which recognize the impor-
tance of the attitude of States towards General Assembly resolutions for establishing State
practice and opinio juris. Replies of the Parties [Marshall Islands] to the Questions Put to
Them by Judge Cançado Trindade, ICJ doc. MIIND 2016/14, of 23 March 2016, pp. 2-3,
paras. 2-5.
   74 Ibid., p. 4, para. 7.
   75 Ibid.

104

356      nuclear arms and disarmament (diss. op. cançado trindade)

State at issue 76. As to the present case opposing the Marshall Islands to
India, the Marshall Islands argues that, even if the two States do not
show an opposition of legal views as to the relevant General Assembly
resolutions, yet they hold divergent views as to whether India is in breach
of the customary law obligation to pursue in good faith nuclear disarma-
ment: such divergence is not evidenced by voting records of such resolu-
tions, but rather by other conduct 77.

  VIII. Human Wickedness: From the Twenty-First Century back
                    to the Book of Genesis

  93. Since the beginning of the nuclear age in August 1945, some of the
great thinkers of the twentieth century started inquiring whether human-
kind has a future. Indeed, this is a question which cannot be eluded.
Thus, already in 1946, for example, deeply shocked by the United States’
atomic bombings of Hiroshima and Nagasaki (on 6 and 9 August 1945,
respectively) 78, Mahatma Gandhi, in promptly expressing his worry
about the future of human society, wrote, in the Journal Harijan, on
7 July 1946, that
          “So far as I can see, the atomic bomb has deadened the ﬁnest feel-
        ing that has sustained mankind for ages. There used to be the so-called
        laws of war which made it tolerable. Now we know the naked truth.
        War knows no law except that of might.” 79

   94. And Gandhi, denouncing its brutality, added that the “atom bomb
is the weapon of ultimate force and destruction”, evidencing the “futility”
of such violence; the development of the atom bomb “represents the most
sinful and diabolical use of science” 80. In the same Journal Harijan,
M. Gandhi further wrote, on 29 September 1946, that non-violence is
“the only thing the atom bomb cannot destroy”; and he further warned
that “unless now the world adopts non-violence, it will spell certain sui-
cide for mankind” 81.

   76  ICJ doc. MIIND 2016/4, p. 4, para. 8.
   77  Ibid., para. 9.
   78 Preceded by a nuclear test undertaken by the United States at Alamagordo,

New Mexico, on 16 July 1945.
   79 M. Gandhi, “Atom Bomb and Ahimsa”, Harijan (7 July 1946), reproduced in: Jour-

nalist Gandhi — Selected Writings of Gandhi (org. S. Sharma), 1st ed., Mumbai, Ed. Gandhi
Book Center, 1994, p. 104; also cit. in: P. F. Power, Gandhi on World Affairs, London,
Allen & Unwin, 1961, pp. 63-64.
   80 Cited in: What Mahatma Gandhi Said about the Atom Bomb (org. Y. P. Anand),

New Delhi, National Gandhi Museum, 1998, p. 5.
   81 From the Journal Harijan (29 September 1946), cited in: Faisal Devji, The Impossible

Indian — Gandhi and the Temptation of Violence, London, Hurst & Co., 2012, p. 150.

105

357    nuclear arms and disarmament (diss. op. cançado trindade)

  95. Over a decade later, in the late 1950s, Karl Jaspers, in his book La
bombe atomique et l’avenir de l’homme (1958), regretted that the existence
of nuclear weapons seemed to have been taken for granted, despite their
capacity to destroy humankind and all life on the surface of earth 82. One
has thus to admit, he added, that “this Earth, which was born of an
atomic explosion, may well also be destroyed by atomic bombs” 83.
Jaspers further regretted that progress had occurred in technological
knowledge, but there had been “no progress of ethics nor of reason”.
Human nature has not changed: “man must change or die” 84.

   96. In the early 1960s, for his part, Bertrand Russell, in his book Has
Man a Future? (1961), likewise regretted that people seemed to have got
used to the existence of nuclear weapons, in a world dominated by a “will
towards death”, prevailing over sanity 85. Unfortunately, he pro-
ceeded, “love for power” has enticed States “to pursue irrational poli-
cies”; and he added: “Those who regard Genesis as authentic history,
may take Cain as the ﬁrst example: he may well have thought that, with
Abel out of the way, he could rule over coming generations.” 86 To Rus-
sell, it is “in the hearts of men that the evil lies”, it is in their minds that
“the cure must be sought” 87. He further regretted the discouraging results
of disarmament conferences, and even wrote that ICJ pronouncements on
the issue should be authoritative, and it was not “optional” for States “to
respect or not international law” 88.

  97. For his part, Karl Popper, at the end of his life, in his book (in the
form of an interview) The Lesson of This Century (1997), in assembling
his recollections of the twentieth century, expressed the anguish, for
example, at the time of the 1962 Cuban Missile crisis, with the ﬁnding
that each of the 38 warheads at issue had three thousand times more
power than the atomic bomb dropped over Hiroshima 89. Once again, the
constatation: human nature has not changed. Popper, like other great
thinkers of the twentieth century, regretted that no lessons seemed to
have been learned from the past; this increased the concern they shared,
in successive decades, with the future of humankind, in the presence of
arsenals of nuclear weapons.
   82 K. Jaspers, La bombe atomique et l’avenir de l’homme [1958], Paris, Buchet-Chastel,

1963, pp. 22 and 336.
   83 Ibid., p. 576 [translation by the Registry].
   84 Ibid., pp. 621 and 640 [translation by the Registry].
   85 B. Russell, Has Man a Future?, [London], Penguin Books, 1962 [reprint], pp. 27

and 37.
   86 Ibid., p. 45.
   87 Ibid., pp. 45-46, and cf. p. 69.
   88 Ibid., pp. 97 and 79.
   89 K. Popper, The Lesson of This Century (interview with G. Bosetti), London/N.Y.,

Routledge, 1997, pp. 24 and 28. And cf. also, earlier on, K. Popper, La Responsabilidad
de Vivir — Escritos sobre Política, Historia y Conocimiento [1994], Barcelona, Paidós, 2012
(reed.], p. 242, and cf. p. 274.

106

358    nuclear arms and disarmament (diss. op. cançado trindade)

  98. A contemporary writer, Max Gallo, in his recent novel Caïn et
Abel — Le premier crime, has written that the presence of evil is within
everyone; “evil lies at the heart of good, and this ambiguous reality is
peculiar to the aﬀairs of humankind” 90. Writers of the past, he went on,
“they too — you, Dante, you, Dostoyevsky, and those who inspired you,
Aeschylus, Sophocles — fan the ﬂames of punishment and guilt” 91. And
he added:
         “Everywhere, Cain stabs or strangles Abel. (. . .) And no one seems
      to see (. . .) the imminent death of all humankind. It holds in its hands
      the weapon of its destruction. Now it is not only entire cities that will
      be burnt down, razed to the ground: all life will be consumed, and the
      earth vitriﬁed.
         Two cities have already suﬀered that fate, and the shadows of their
      inhabitants’ bodies are forever embedded in the stone by a heat as hot
      as the sun’s lava.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         Cain will pursue Abel everywhere (. . .) Vulnerable cities will be
      soaked in blood. The highest towers will be destroyed, their inhabit-
      ants buried beneath the rubble.” 92
   99. As well captured by those and other thinkers, in the Book of Gen-
esis, the episode of the brothers Cain and Abel portraying the ﬁrst mur-
der ever, came to be seen, over the centuries, as disclosing the presence of
evil and guilt in the world where everyone lives. This called for care, pru-
dence and reﬂection, as it became possible to realize that human beings
were gradually distancing themselves from their Creator. The fragility of
civilizations soon became visible. That distancing became manifest in the
subsequent episode of the Tower of Babel (Genesis, Chap. 11: 9). As they
were built, civilizations could be destroyed. History was to provide many
examples of that (as singled out, in the twentieth century, by Arnold Toyn-
bee). Over the centuries, with the growth of scientiﬁc-technological
knowledge, the human capacity of self-destruction increased consider-
ably, having become limitless in the present nuclear age.
   100. Turning back to the aforementioned book by Bertrand Russell,
also in its French edition (L’homme survivra-t-il?, 1963), he further warned
therein that
        “[I]l faut que nous nous rendions compte que la haine, la perte de
      temps, d’argent et d’habilité intellectuelle en vue de la création d’en-
      gins de destruction, la crainte du mal que nous pouvons nous faire
      mutuellement, le risque quotidien et permanent de voir la ﬁn de tout
      ce que l’homme a réalisé, sont le produit de la folie humaine. (. . .)

   90 M. Gallo, Caïn et Abel — Le premier crime, [Paris], Fayard, 2011, pp. 112 and 141

[translation by the Registry].
   91 Ibid., p. 174 [translation by the Registry].
   92 Ibid., pp. 236-237 [translation by the Registry].

107

359      nuclear arms and disarmament (diss. op. cançado trindade)

        C’est dans nos cœurs que réside le mal, c’est de nos cœurs qu’il doit
        être extirpé.” 93 [“[W]e must become aware that the hatred, the expend-
        iture of time and money and intellectual ability upon weapons
        of destruction, the fear of what we may do to each other, and the
        imminent daily and continued risk of an end to all that man has
        achieved, (. . .) all this is a product of human folly (. . .) It is in our
        hearts that the evil lies, and it is from our hearts that it must be
        plucked out.” 94]
   101. Some other great thinkers of the twentieth century (from distinct
branches of knowledge), expressed their grave common concern with the
increased human capacity of destruction coupled with the development of
scientiﬁc-technological knowledge. Thus, the historian Arnold Toynbee
(A Study in History, 1934-1954; and Civilization on Trial, 1948), regretted
precisely the modern tragedy that human iniquity was not eliminated
with the development of scientiﬁc-technological knowledge, but widely
enlarged, without a concomitant advance at spiritual level 95. And the
increase in armaments and in the capacity of destruction, he added, became
a symptom of the fall of civilizations 96.

   102. For his part, the writer Hermann Hesse, in a posthumous book of
essays (Guerre et paix, 1946), originally published shortly after the Second
World War, warned that with the mass killings, not only do we keep on
killing ourselves, but also our present and perhaps also our future 97. The
worst destruction, he added, was the one organized by the State itself,
with its corollary, “the philosophy of the State”, accompanied by capital
and industry 98. The philosopher and theologian Jacques Maritain (Œuvres
complètes, 1961-1967), in turn, wrote that the atrocities perpetrated in the
twentieth century had “a more tragic signiﬁcance for human conscience” 99.
In calling for an “integral humanism”, he warned that the human person
transcends the State, and the realization of the common good is to be
   93 B. Russell, L’homme survivra-t-il?, Paris, Ed. J. Didier, 1963, pp. 162-163.
   94 B. Russell, Has Man a Future?, op. cit. supra note 85, pp. 109-110. Towards the
end of his life, Bertrand Russell again warned against the extreme danger of atomic and
hydrogen bombs, and expressed his concern that people seemed to get used to their exis-
tence; cf. B. Russell, Autobiography [1967], London, Unwin, 1985 (reed.), pp. 554-555.
   95 Cf. A. J. Toynbee, A Study in History, Oxford University Press, 1970 [3rd reprint],

pp. 48-558, 559-701, 702-718 and 826-850; A. J. Toynbee, Civilization on Trial, Oxford/N.Y.,
Oxford University Press, 1948, pp. 3-263.
   96 A. J. Toynbee, Guerra e Civilização [War and Civilization], Lisbon, Edit. Presença,

1963, pp. 29, 129 and 178.
   97 H. Hesse, Sobre la Guerra y la Paz [1946], 5th ed., Barcelona, Edit. Noguer, 1986,

pp. 119 and 122.
   98 H. Hesse, Guerre et Paix, Paris, L’Arche Ed., 2003 (reed.), pp. 127 and 133.
   99 J. Maritain, “Dieu et la permission du mal”, Œuvres de Jacques Maritain —

1961-1967 (Jacques et Raissa Maritain — Œuvres complètes), Vol. XII, Fribourg/Paris,
Ed. Universitaires/Ed. Saint-Paul, 1992, p. 17, and cf. p. 41 [translation by the Registry].

108

360    nuclear arms and disarmament (diss. op. cançado trindade)

pursued keeping in mind human dignity 100. In his criticism of the “real-
ists”, he stressed the imperatives of ethics and justice, and the importance
of general principles of law, in the line of jusnaturalist thinking 101.

   103. Another writer, the humanist Stefan Zweig, remained always con-
cerned with the fate of humankind. He was impressed with the Scripture’s
legend of the Tower of Babel, having written an essay on it in 1916, and
kept it in mind over the years, as shown in successive essays written in
more than the two following decades 102, taking it as a symbol of the
perennial yearning for a uniﬁed humanity. In his own words,

         “The history of tomorrow must be a history of all humanity and
      the conﬂicts between individual conﬂicts must be seen as redundant
      alongside the common good of the community. History must then be
      transformed from the current woeful State to a completely new posi-
      tion; (. . .) it must clearly contrast the old ideal of victory with the
      new one of unity and the old gloriﬁcation of war with a new contempt
      for it. (. . .) [T]he only important thing is to push forward under the
      banner of a community of nations, the mentality of mankind (. . .)” 103

   104. Yet, in his dense and thoughtful intellectual autobiography (Le
monde d’hier, 1944), written shortly before putting an end to his own life,
Stefan Zweig expressed his deep concern with the fading away of con-
science, disclosed by the fact that the world got used to the “dehumaniza-
tion, injustice and brutality, as never before in hundreds of centuries” 104;
persons had been transformed into simple objects 105. Earlier on — before
the nuclear age — his friend the psychologist Sigmund Freud, in a
well-known essay (Civilization and Its Discontents, 1930), expressed his
deep preoccupation with what he perceived as an impulse to barbarism

   100 Cf. J. Maritain, Humanisme intégral, Paris, Aubier, 2000 (reed.), pp. 18, 37, 137

and 230-232; J. Maritain, The Person and the Common Good, Notre Dame, University
of Notre Dame Press, 2002 (reed.), pp. 29, 49-50, 92-93 and 104; J. Maritain, O Homem
e o Estado, 4th ed., Rio de Janeiro, Livr. Agir Ed., 1966, pp. 96-102; J. Maritain, Los
Derechos del Hombre y la Ley Natural, Buenos Aires, Ed. Leviatan, 1982, pp. 38, 44, 50,
69 and 94-95, and cf. pp. 79-82; J. Maritain, Para una Filosofía de la Persona Humana,
Buenos Aires, Ed. Club de Lectores, 1984, pp. 164, 176-178, 196-197, 221 and 231.
   101 J. Maritain, De la justice politique — Notes sur la présente guerre, Paris, Libr. Plon,

1940, pp. 88, 90-91, 106-107 and 112-114.
   102 As shown in his posthumous book of essays: S. Zweig, Messages from a Lost World,

London, Pushkin Press, 2016, pp. 55, 88-90, 97, 107 and 176.
   103 Ibid., pp. 170 and 175.
   104 S. Zweig, O Mundo que Eu Vi [1944, Die Welt von Gestern], Rio de Janeiro, Edit.

Record, 1999, p. 483, and cf. pp. 272-274, 278, 462, 467, 474, 490 and 503-505.
   105 Ibid., p. 490.

109

361    nuclear arms and disarmament (diss. op. cançado trindade)

and destruction, which could not be expelled from the human psyche 106.
In face of human hostility and the threat of self-disintegration, he added,
there is a consequent loss of happiness 107.
   105. Another psychologist, Carl Jung, referring, in his book Aspects du
drame contemporain (1948), to events of contemporary history of his
epoch, warned against subsuming individuals under the State; in his view,
collective evil and culpability contaminate everyone everywhere 108. He
further warned against the tragic dehumanization of others 109 and the
psychic exteriorizations of mass movements (of the collective uncon-
science) conducive to destruction 110.

   106. To the writer and theologian Albert Schweitzer (who wrote his
Kulturphilosophie in 1923), the essence of civilization lies in the respect for
life, to the beneﬁt of each person and of humankind 111. He rejected the
“illness” of Realpolitik, having stated that good consists in the preserva-
tion and exaltation of life, and evil lies in its destruction; nowadays more
than ever — he added — we need an “ethics of reverence for life”, what
requires responsibility 112. He insisted, in his book La civilisation et
l’éthique (1923), that respect for life started as from awareness of one’s
responsibility vis-à-vis the life of others 113.

  107. Later on in his life, then in the nuclear age, in his series of lectures
Paix ou guerre atomique (1958), Schweitzer called for an end to nuclear
weapons, with their “unimaginable destruction and annihilation” 114. In
his own words,
         “There are no victors in a nuclear war, only the vanquished. Each
      belligerent suﬀers the same damage from the adversary’s atomic
      bombs and missiles as it inﬂicts with its own. The result is continuous
      annihilation (. . .). It can only say: are we both going to commit sui-
      cide by mutual extermination?” 115

   106 Sigmund Freud, Civilization and Its Discontents [1930], N.Y., Norton & Cia., 1962

(reed.), pp. 7-9, 26, 36-37 and 59-63.
   107 Cf. ibid., pp. 23 and 67-92.
   108 C. G. Jung, Aspects du drame contemporain, Geneva/Paris, Libr. de l’Univ. Georg/

Ed. de la Colonne Vendôme, 1948, pp. 99 and 145.
   109 Ibid., pp. 173 and 179.
   110 Ibid., pp. 198-200, 208, 218-219 and 223.
   111 A. Schweitzer, Filosofia da Civilização [1923], São Paulo, Edit. Unesp, 2011 (reed.),

pp. 80, 304, 311 and 315.
   112 A. Schweitzer, Pilgrimage to Humanity [Weg zur Humanität], N.Y., Philosophical

Library, 1961, pp. 87-88, 99 and 101.
   113 M. Arnold, Albert Schweitzer — La compassion et la raison, Lyon, Ed. Olivétan,

2015, pp. 74-75 and 77.
   114 Cited in ibid., p. 111 [translation by the Registry].
   115 Extract from his book Paix ou guerre atomique (1958), reproduced in his post-

humous book of essays: A. Schweitzer, Respect de la vie (org. B. Kaempf), Paris,
Ed. Arfuyen/CIAL, 1990, p. 98 [translation by the Registry].

110

362    nuclear arms and disarmament (diss. op. cançado trindade)

   108. Well before them, by the turn of the nineteenth to the twenti-
eth century, the writer Leo Tolstoy warned (The Slavery of Our Times,
1900) against the undue use of the State monopoly of “organized vio-
lence”, conforming a new form of slavery of the vulnerable ones 116; he
criticized the recruitment of personnel to be sent to war to kill defenseless
persons, perpetrating acts of extreme violence 117. On his turn, the physi-
cian Georges Duhamel warned (in his account Civilization, 1914-1917)
against the fact that war had become an industry of killing, with a “bar-
baric ideology”, destroying civilization with its “lack of humanity”; yet,
he still cherished the hope that the spirit of humanism could ﬂourish from
the ashes 118.
   109. The historian of ideas, Isaïah Berlin, for his part, warned (The
Proper Study of Mankind) against the dangers of the raison d’Etat, and
stressed the relevance of values, in the search of knowledge, of cultures,
and of the recta ratio 119. On his turn, the writer Erich Fromm upheld
human life in insisting that there could only exist a truly “civilized” soci-
ety if based on humanist values 120. Towards the end of his life, in his
book The Anatomy of Human Destructivity (1974), he warned against
destruction and propounded the prevalence of love for life 121.
   110. Fromm further warned that the devastation of wars (including the
contemporary ones) has led to the loss of hope and to brutalization,
amidst the tension of the co-existence or ambivalence between civilization
and barbarism, which requires all our endeavours towards the revival of
humanism 122. Likewise, in our days, the philosopher Edgar Morin has
also warned that the advances of scientiﬁc knowledge disclosed an ambiv-
alence, in that they provided, on the one hand, the means to improve the
knowledge of the world, and, on the other hand, with the production
(and proliferation) of nuclear weapons, in addition to other weapons
(biological and chemical) of mass destruction, the means to destroy the
world 123.

   116 L. Tolstoy, La Esclavitud de Nuestro Tiempo [1900], Barcelona, Littera, 2000 (reed.),

pp. 86-87, 89, 91 and 97.
   117 Ibid., pp. 101, 103-104 and 121.
   118 G. Duhamel, Civilisation — 1914-1917, Paris, Mercure de France, 1944, pp. 53

and 274-275 ; G. Duhamel, Memorial de la guerre blanche — 1938, Paris, Mercure de France,
1945, pp. 41, 95, 100, 102 and 170.
   119 I. Berlin, The Proper Study of Mankind, N.Y., Farrar & Straus & Giroux, 2000

(reed.), pp. 78, 135, 155, 217, 235-236, 242, 247, 311 and 334; I. Berlin, “Return of the
Volksgeist: Nationalism, Good and Bad”, At Century’s End (ed. N. P. Gardels), San Diego/
Cal., Alti Publ., 1995, p. 94.
   120 Cf. E. Fromm, Las Cadenas de la Ilusión — Una Autobiografía Intelectual [1962],

Barcelona, Paidós, 2008 (reed.), pp. 78 and 234-239.
   121 Cf. E. Fromm, Anatomía de la Destructividad Humana [1974], Mexico/Madrid/

Buenos Aires, 2009 (reed.), pp. 16-468 ; and cf. also E. Fromm, El Amor a la Vida [1983 —
Uber die Liebe zum Leben], Barcelona, Paidós, 2016 (4th reprint), pp. 15-250.
   122 E. Fromm, Las Cadenas de la Ilusión . . ., op. cit. supra note 120, pp. 240 and 250-251.
   123 E. Morin, Vers l’abîme?, Paris, L’Herne, 2012, pp. 9, 24-25 and 40-41.

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363       nuclear arms and disarmament (diss. op. cançado trindade)

   111. The future has thus become unpredictable, and unknown, in face
of the confrontation between the forces of life and the forces of death.
Yet, he added, human beings are endowed with conscience, and are aware
that civilizations, as well as the whole of humankind, are mortal 124.
Morin further contended the tragic experiences lived in recent times
should lead to the repentance of barbarism and the return to humanism;
in eﬀect, to think about, and resist to, barbarism, amounts to contribut-
ing to recreate humanism 125.

   112. For his part, in the late 1980s, in his book of essays Silences et
mémoires d’hommes (1989), Elie Wiesel stressed the need of memory and
attention to the world wherein we live, so as to combat the indiﬀerence to
violence and evil 126. Looking back to the Book of Genesis, he saw it ﬁt to
recall that
            “Cain and Abel — the ﬁrst children on earth — discovered they
         were enemies. Although they were brothers, one became the murderer
         and the other the victim. What lesson should we learn from this? Two
         men may be brothers and nonetheless want to kill each other. And
         also: whoever does the killing, kills his brother. But it is only later
         that we learn this.” 127
   113. Turning attention to the threat of nuclear weapons, Wiesel sharply
criticized the already prevailing attitude of indiﬀerence to it: the world,
today, seems astonishingly indiﬀerent to the nuclear question” — an atti-
tude which he found not understandable 128. And he added that
            “Indiﬀerence (. . .) can also become contagious. (. . .) Indiﬀerence
         can, moreover, serve as a measure of the progress of the evil that is
         undermining society. (. . .) Here again, memory alone can awaken us.
         If we remember what happened forty years ago, there is a chance we
         can prevent further disasters. Otherwise, we are at risk of being the
         victims of our own indiﬀerence. For if we are indiﬀerent to the lessons
         of our past, we will be indiﬀerent to the hopes inherent in our future.
         (. . .) My fear is this: if we forget, we will be forgotten. (. . .) If we
         remain indiﬀerent to our fate, (. . .) there will be no one left to tell
         our story.” 129
  114. In eﬀect, already in the early twentieth century, Henri Bergson, in
his monograph La conscience et la vie (1911), devoted attention to the
search for meaning in life: to him, to live with consciousness is to remem-

   124 E. Morin, Vers l’abîme ?, Paris, L’Herne, 2012, pp. 27, 30, 59, 85, 89, 126 and 181.
   125 E. Morin, Breve Historia de la Barbarie en Occidente, Barcelona, Paidós, 2009, p. 94,
and cf. pp. 60 and 92-93.
  126 E. Wiesel, Silences et mémoires d’hommes, Paris, Ed. Seuil, 1989, pp. 166, 173

and 175.
  127 Ibid., pp. 167-168.
  128 Ibid., p. 174, and cf. p. 170.
  129 Ibid., pp. 175-176 [translation by the Registry].

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364    nuclear arms and disarmament (diss. op. cançado trindade)

ber the past (memory) in the present, and to anticipate the future 130. In
his own words, “To remember what is no longer, to anticipate what does
not yet exist, that is the ﬁrst function of consciousness. (. . .) Conscious-
ness is a link between what was and what will be, a bridge between the
past and the future.” 131
   115. Also in international legal doctrine, there have been those who have
felt the need to move away from State voluntarism and acknowledge the
prevalence of conscience over the “will”. It is not my intention to dwell upon
this point here, as I have dealt with it elsewhere 132. For the purposes of the
present dissenting opinion, suﬃce it to recall a couple of examples. The
jurist Gustav Radbruch, at the end of his life, forcefully discarded legal pos-
itivism, always subservient to power and the established order, and formu-
lated his moving conversion and profession of faith in jusnaturalism 133. His
lucid message was preserved and has been projected in time 134, thanks to the
devotion of his students and disciples of the School of Heidelberg.
   116. There are further examples of doctrinal endeavours to put limits
to State voluntarism, such as the jusnaturalist construction of, e.g.,
Alfred Verdross, — as from the idée du droit, — of an objective law ﬁnd-
ing expression in the general principles of law, preceding positive interna-
tional law 135; or else the conception of the droit spontané, of Roberto Ago,
upholding the spontaneous formation (emanating from human con-
science, well beyond the “will” of individual States) of new rules of inter-
national law 136.
   117. In the view of Albert de La Pradelle, the conception of the
formation of international law on the strict basis of reciprocal rights and
duties only of States is “extremely grave and dangerous” 137. Interna-
tional law is a “law of the human community”, encompassing, besides
States, also peoples and human beings; it is the “law of all mankind”, on
the foundations of which are the general principles of law 138.
To de La Pradelle, this “droit de l’humanité” is not static, but rather
    130 H. Bergson, La conscience et la vie [1911], Paris, PUF, 2012 [reprint], pp. 10-11, 13

and 26.
    131 Ibid., pp. 5-6 [translation by the Registry].
    132 Cf. A. A. Cançado Trindade, International Law for Humankind — Towards a New

Jus Gentium, 2nd rev. ed., Leiden/The Hague, Nijhoﬀ/The Hague Academy of Interna-
tional Law, 2013, pp. 141-147 and 153-161.
    133 Cf. G. Radbruch, Introducción a la Filosofía del Derecho, 3rd ed., Mexico/

Buenos Aires, Fondo de Cultura Económica, 1965, pp. 9-180.
    134 Cf., e.g., R. Alexy, The Argument from Injustice — A Reply to Legal Positivism,

Oxford University Press, 2010, pp. 3-130.
    135 A. Verdross, Derecho Internacional Público, 5th ed., Madrid, Aguilar, 1969 [reprint],

pp. 15-19.
    136 R. Ago, “Nouvelles réﬂexions sur la codiﬁcation du droit international”, 92 Revue

générale de droit international public (1988), p. 540, and cf. p. 541 on “la nature non volon-
taire de l’origine du droit coutumier”.
    137 A. de La Pradelle, Droit international public (cours sténographié), Paris, Institut des

Hautes Etudes Internationales/Centre Européen de la Dotation Carnegie, November 1932/
May 1933, p. 33, and cf. pp. 36-37.
    138 Ibid., pp. 49-59, 149, 222 and 264.

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365      nuclear arms and disarmament (diss. op. cançado trindade)

dynamic, attentive to human values, in the line of jusnaturalist
thinking 139.
   118. “Juridical conscience” is invoked in lucid criticisms of legal posi-
tivism 140. Thus, in his monograph-plea (of 1964) against nuclear weap-
ons, for example, Stefan Glaser sustained that customary international
norms are those that, “according to universal conscience”, ought to regu-
late the international community, for fulﬁlling common interest and
responding to the demands of justice; and he added that “It is on this
universal conscience that the main characteristic of international law is
based: the belief that its norms are essential for the common good explains
why they are recognized as binding rules.” 141

   119. This is the position that I also uphold; in my own understanding,
it is the universal juridical conscience that is the ultimate material source
of international law 142. In my view, one cannot face the new challenges
confronting the whole international community keeping in mind only
State susceptibilities; such is the case with the obligation to render the
world free of nuclear weapons, an imperative of recta ratio and not a
derivative of the “will” of States. In eﬀect, to keep hope alive it is neces-
sary to bear always in mind humankind as a whole.

   120. For my part, within the ICJ, I had deemed it ﬁt to ponder, in my
dissenting opinion in the case concerning the Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia), Judgment, I.C.J. Reports 2015 (I), pp. 365-366, paras. 488-
489), that, from Homer’s Iliad (late eighth or early seventh century BC) to
date, individuals, indoctrinated and conditioned for war and destruction,
have become objects of the struggle for domination. I recalled that this
has been lucidly warned by Simone Weil, in a penetrating essay (of 1934),
in which war victimizes everyone, there occurring “the substitution of the
ends by the means”, transforming human life into a simple means, which
can be sacriﬁced; individuals become unable to think, in face of the
“social machine” of destruction of the spirit 143.

   139 Cf. A. de La Pradelle, op. cit. supra note 137, pp. 412-413.
   140 Such as, e.g., those of Antonio Gómez Robledo, Meditación sobre la Justicia [1963],
Mexico/Buenos Aires, Fondo de Cultura Económica, pp. 179 and 185; R. Quadri, “Cours
général de droit international public”, 113 Recueil des cours de l’Académie de droit interna-
tional de La Haye (RCADI) (1964), pp. 326, 332, 336-337, 339 and 350-351.
   141 S. Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pedone, 1964,

p. 18 [translation by the Registry].
   142 Cf. A. A. Cançado Trindade, op. cit. supra note 132, Chap. VI, pp. 139-161.
   143 S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barce-

lona, Ed. Paidós/Universidad Autónoma de Barcelona, 1995, pp. 81-82, 84 and 130-131 ;
S. Weil, Réflexions sur les causes de la liberté et de l’oppression sociale, Paris, Gallimard,
1955, pp. 124-125, and cf. pp. 114-115 and 144.

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366       nuclear arms and disarmament (diss. op. cançado trindade)

   121. The presence of evil has accompanied and marked human exis-
tence over the centuries. In the same aforementioned dissenting opinion
in the case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide, after drawing attention to “the
ever-lasting presence of evil, which appears proper to the human condi-
tion, in all times”, I added:
            “It is thus understandable that it has attracted the concern of, and
         has presented challenges to, legal thinking, in our times and previous
         centuries, as well as other branches of knowledge (such as, e.g., his-
         tory, psychology, anthropology, sociology, philosophy and theology,
         among others). It has marked presence in literature as well. This
         long-standing concern, over centuries, has not, however, succeeded to
         provide an explanation for evil.
            Despite the endeavours of human thinking, through history, we
         have not been able to rid humankind of it. Like the passing of time,
         the ever-lasting presence of evil is yet another mystery surrounding
         human beings, wherever and while they live. Whenever individuals
         purport to subject their fellow human beings to their ‘will’, placing
         this latter above conscience, evil is bound to manifest itself. In one of
         the most learned writings on the problem of evil, R. P. Sertillanges
         ponders that the awareness of evil and the anguish emanated there-
         from have marked presence in all civilizations. The ensuing threat to
         the future of humankind has accounted for the continuous presence
         of that concern throughout the history of human thinking. 144
            Religions were the ﬁrst to dwell upon the problem of evil, which
         came also to be considered by philosophy, history, psychology, social
         sciences and literature. Over the centuries, human thinking has always
         acknowledged the need to examine the problem of evil, its incidence
         in human relations, in the world wherein we live, without losing faith
         in human values 145. Despite the perennial quest of human thinking
         to ﬁnd answers to the problem of evil, going as far back as the Book
         of Job, or even further back, to the Genesis itself 146, — not even
         theology has found an explanation for it, that is satisfactory to all.”
         (I.C.J. Reports 2015 (I), pp. 361-362, paras. 472-474.)

   144 R. P. Sertillanges, Le problème du mal — l’histoire, Paris, Aubier, 1948, pp. 5-412.
   145 Ibid.
   146 Cf., inter alia, e.g., M. Neusch, L’énigme du mal, Paris, Bayard, 2007, pp. 7-193;

J. Maritain, Dio e la Permissione del Male, 6th ed., Brescia, Edit. Morcelliana, 2000,
pp. 9-100; E. Fromm, Anatomía de la Destructividad Humana, Mexico/Madrid/Buenos Aires,
Siglo XXI Edit., 2009 [reprint.], pp. 11-468; P. Ricoeur, Evil — A Challenge to Philosophy
and Theology, London, Continuum, 2007, pp. 33-72; P. Ricœur, Le mal — Un défi à la
philosophie et à la théologie, Geneva, Ed. Labor et Fides, 2004, pp. 19-65; C. S. Nino, Juicio
al Mal Absoluto, Buenos Aires, Emecé Edit., 1997, pp. 7-292; A. Morton, On Evil, N.Y./
London, Routledge, 2004, pp. 1-148; T. Eagleton, On Evil, New Haven/London, Yale
University Press, 2010, pp. 1-163; P. Dews, The Idea of Evil, Oxford, Wiley-Blackwell,
2013, pp. 1-234.

115

367    nuclear arms and disarmament (diss. op. cançado trindade)

   122. The Scripture’s account of Cain and Abel (Genesis, Chap. 4: 8-10)
through the centuries came to be regarded as the aetiology of the frag-
mentation of humankind, as from the indiﬀerence of an individual to the
fate of another. The increasing disregard for human life was fostered by
growing, generalized and uncontrolled violence in search of domination.
This was further aggravated by ideological manipulations, and even the
dehumanization of the others, the ones to be victimized. The problem of
evil continues to be studied, in face of the human capacity for extreme
violence and self-destruction on a large scale 147. The tragic message of the
Book of Genesis, in my perception, seems perennial, as contemporary as
ever, in the current nuclear age.

    IX. The Attention of the United Nations Charter to Peoples

   123. It should be kept in mind that the United Nations Charter was
adopted on 26 June 1945 on behalf of “we, the peoples of the
United Nations”. In several provisions it expresses its concern with the
living conditions of all peoples (preamble, Arts. 55, 73 (a), 76, 80), and
calls for the promotion of, and universal respect for, human rights
(Arts. 55 (c), 62 (2), 68, 76 (c)). It invokes the “principles of justice and
international law” (Art. 1 (1), and refers to “justice and respect for the
obligations arising from treaties and other sources of international law”
(preamble). It further states that the Statute of the ICJ, “the principal
judicial organ of the United Nations”, forms “an integral part” of the
UN Charter itself (Art. 92).
   124. In the mid-1950s, Max Huber, a former judge of the PCIJ, wrote
that international law has to protect also values common to humankind,
attentive to respect for life and human dignity, in the line of the jusnatu-
ralist conception of the jus gentium; the UN Charter, in incorporating
human rights into this droit de l’humanité, initiated a new era in the devel-
opment of international law, in a way rescuing the idea of the civitas
maxima, which marked presence already in the historical origins of the
law of nations. The UN Charter’s attention to peoples, its principled

    147 Cf., moreover, inter alia, e.g., [Various Authors], Le Mal (ed. C. Crignon), Paris,

Flammarion, 2000, pp. 11-232; J. Waller, Becoming Evil, 2nd ed., Oxford University Press,
2007, pp. 3-330; S. Baron-Cohen, The Science of Evil — On Empathy and the Origins of
Cruelty, N.Y., Basic Books, 2012, pp. 1-243; L. Svendsen, A Philosophy of Evil, Cham-
paign/London, Dalkey Archive Press, 2011 [reprint], pp. 9-282; M. Salvioli, Bene e
Male — Variazioni sul Tema, Bologna, Ed. Studio Domenicano (ESD), 2012, pp. 11-185;
D. Livingstone Smith, Less than Human, N.Y., St. Martin’s Press, 2011, pp. 1-316;
R. Safranski, El Mal, o el Drama de la Libertad, 4th ed., Barcelona, Tusquets Edit., 2014,
pp. 15-281; S. Neiman, Evil in Modern Thought, 2nd ed., Princeton/Oxford, Princeton
University Press, 2015, pp. 1-359; J.-C. Guillebaud, Le tourment de la guerre, Paris, Ed. de
l’Iconoclaste, 2016, pp. 9-390.

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368    nuclear arms and disarmament (diss. op. cançado trindade)

position for the protection of the human person, much transcends posi-
tive domestic law and politics 148.

  125. The new vision advanced by the UN Charter, and espoused by
the law of the United Nations, has, in my perception, an incidence upon
judicial settlement of international disputes. Thus, the fact that the ICJ’s
mechanism for the handling of contentious cases is an inter-State one,
does not mean that its reasoning should also pursue a strictly inter-State
dimension; that will depend on the nature and substance of the cases
lodged with it. And there have been several cases lodged with the Court
that required a reasoning going well beyond the inter-State dimension 149.
Such reasoning beyond the inter-State dimension is faithful to the
UN Charter, the ICJ being “the principal judicial organ of the
United Nations” (Art. 92).

   126. Recently, in one of such cases, that of the Application of the Con-
vention on the Prevention and Punishment of the Crime of Genocide, in my
extensive dissenting opinion appended thereto, I had deemed it ﬁt, inter
alia, to warn that

   148 Max Huber, La pensée et l’action de la Croix-Rouge, Geneva, CICR, 1954, pp. 26,

247, 270, 286 and 291.
   149 Cf., e.g., the case of Nottebohm (Liechtenstein v. Guatemala) (1955, pertaining to

double nationality); the cases of the Trial of Pakistani Prisoners of War (Pakistan v. India)
(1973), of the Hostages (United States Diplomatic and Consular Staff in Tehran (United
States of America v. Iran)) case (1980); of the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Monte-
negro) case (1996 and 2007); of the Frontier Dispute (Burkina Faso/Republic of Mali) (1986);
the triad of cases concerning consular assistance — namely, the cases Vienna Convention
on Consular Relations (Paraguay v. United States of America) (1998), the case LaGrand
(Germany v. United States of America) (2001), the case Avena and Other Mexican Nationals
(Mexico v. United States of America) (2004); the case of Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda) (2000), concerning grave violations
of human rights and of international humanitarian law; of the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria) (1996); of Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal) (2009 and 2012), pertaining to the
principle of universal jurisdiction under the UN Convention against Torture; of Ahmadou
Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (2010) (on detention
and expulsion of a foreigner), of the Jurisdictional Immunities of the State (Germany v. Italy;
Greece intervening) (2010 and 2012); of the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (2011);
of the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning
the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand) (provisional
measures, 2011); of the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Croatia v. Serbia) (2015). To those cases one can add the two most
recent Advisory Opinions of the ICJ, on the Accordance with International Law of the Unila-
teral Declaration of Independence in Respect of Kosovo (2010); and on a Judgment No. 2867 of
the Administrative Tribunal of the International Labour Organization upon a Complaint Filed
against the International Fund for Agricultural Development (2012).

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369    nuclear arms and disarmament (diss. op. cançado trindade)

         “The present case concerning the Application of the Convention
      against Genocide provides yet another illustration of the pressing need
      to overcome and move away from the dogmatic and strict inter-State
      outlook, even more cogently. In eﬀect, the 1948 Convention against
      Genocide, adopted on the eve of the Universal Declaration of Human
      Rights, is not State-centred, but rather people-centred. The Conven-
      tion against Genocide cannot be properly interpreted and applied
      with a strict State- centred outlook, with attention turned to inter-State
      susceptibilities. Attention is to be kept on the justiciables, on the
      victims — real and potential victims — so as to impart justice
      under the Genocide Convention.” (I.C.J. Reports 2015 (I), p. 368,
      para. 496.)
  127. In a report in the early 1990s, a former UN Secretary-General,
calling for a “concerted eﬀort” towards complete disarmament, rightly
pondered that that “[i]n today’s world, societies can no longer aﬀord to
solve problems by the use of force. (. . .) [O]ne of the most important
means of reducing violence in inter-State relations is disarmament” 150.
There followed the cycle of World Conferences of the United Nations
during the 1990s, in a commendable endeavour of the United Nations to
go beyond and transcend the purely inter-State dimension, imbued of a
spirit of solidarity, so as to consider the challenges for the future of
humankind.

   128. Those UN World Conferences disclosed a growing awareness of
the international community as a whole, and entered into a continuing
universal dialogue between UN Member States and entities of the civil
societies, — which I well remember, having participated in it 151, — so as
to devise the new international agenda in the search of common solutions
for the new challenges aﬀecting humankind as a whole. In focusing atten-
tion on vulnerable segments of the populations, the immediate concern
has been with meeting basic human needs, that memorable cycle of world
conferences disclosed a common concern with the deterioration of living
conditions, dramatically aﬀecting increasingly greater segments of the
population in many parts of the world nowadays 152.

  150 B. Boutros-Ghali, New dimensions of arms regulation and disarmament in the post-

Cold War era — Report of the Secretary-General, N.Y., United Nations, 1993, para. 46.
   151 E.g., in the UN Conference on Environment and Development (Rio de Janeiro,

1992, in its World NGO Forum) and in the II World Conference on Human Rights
(Vienna, 1993, in the same Forum and in its Drafting Committee).

   152 A growing call was formed for the pursuance of social justice among and within

nations.

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370    nuclear arms and disarmament (diss. op. cançado trindade)

   129. The common denominator in those UN World Conferences — as
I have pointed out on distinct occasions over the last two decades 153 —
can be found in the recognition of the legitimacy of the concern of the
international community as a whole with the conditions of living of all
human beings everywhere. The placing of the well-being of peoples and
human beings, of the improvement of their conditions of living, at the
centre of the concerns of the international community, is remindful of the
historical origins of the droit des gens 154.

  130. At the end of the decade and the dawn of the new millennium, the
United Nations Millennium Declaration (adopted by General Assembly’s
resolution 55/2, of 8 September 2000) stated the determination “to elimi-
nate the dangers posed by weapons of mass destruction” (para. II (8)),
and, noticeably,
         “To strive for the elimination of weapons of mass destruction, par-
      ticularly nuclear weapons, and to keep all options open for achieving
      this aim, including the possibility of convening an international
      conference to identify ways of eliminating nuclear dangers.”
      (Para. II (9).)
  131. In addition to our responsibilities to our individual societies, —
the UN Millennium Declaration added, —

      “we have a collective responsibility to uphold the principles of human
      dignity, equality and equity at the global level. (. . .) [W]e have a
      duty therefore to all the world’s people, especially the most vulnerable
      and, in particular, the children of the world, to whom the future
      belongs.

   153 A. A. Cançado Trindade, A Proteção dos Vulneráveis como Legado da II Conferência

Mundial de Direitos Humanos (1993-2013), Fortaleza/Brazil, IBDH/IIDH/SLADI, 2014,
pp. 13-356; A. A. Cançado Trindade, “Sustainable Human Development and Conditions
of Life as a Matter of Legitimate International Concern: The Legacy of the UN World
Conferences”, Japan and International Law — Past, Present and Future (International
Symposium to Mark the Centennial of the Japanese Association of International Law), The
Hague, Kluwer, 1999, pp. 285-309; A. A. Cançado Trindade, “The Contribution of Recent
World Conferences of the United Nations to the Relations between Sustainable Develop-
ment and Economic, Social and Cultural Rights”, Les hommes et l’environnement: Quels
droits pour le vingt-et-unième siècle? — Etudes en hommage à Alexandre Kiss (eds. M. Prieur
and C. Lambrechts), Paris, Ed. Frison-Roche, 1998, pp. 119-146; A. A. Cançado Trindade,
“Memória da Conferência Mundial de Direitos Humanos (Vienna, 1993)”, 87/90 Boletim
da Sociedade Brasileira de Direito Internacional (1993-1994), pp. 9-57.
   154 Those Conferences acknowledged that human rights do in fact permeate all areas

of human activity, and contributed decisively to the reestablishment of the central position
of human beings in the conceptual universe of the law of nations (droit des gens). Cf., on
the matter, A. A. Cançado Trindade, Evolution du droit international au droit des gens —
L’accès des particuliers à la justice internationale : le regard d’un juge, Paris, Pedone, 2008,
pp. 1-187.

119

371      nuclear arms and disarmament (diss. op. cançado trindade)

           We reaﬃrm our commitment to the purposes and principles of the
        Charter of the United Nations, which have proved timeless and uni-
        versal. Indeed, their relevance and capacity to inspire have increased,
        as nations and peoples have become increasingly interconnected and
        interdependent” (A/RES/55/2, of 8 September 2000, paras. I (2-3)).

                X. Impertinence of the So-Called MONETARY
                             GOLD “Principle”

   132. The distortions generated by the obsession with the strict inter-State
paradigm are not hard to detect. An example is aﬀorded, in this connec-
tion, by the ICJ’s handling of the East Timor case (1995): the East Timorese
people had no locus standi to request intervention in the proceedings, not
even to present an amicus curiae, although the crucial point under consid-
eration was that of sovereignty over their own territory. Worse still, the
interests of a third State (which had not even accepted the Court’s jurisdic-
tion) were taken for granted and promptly safeguarded by the Court, by
means of the application of the so-called Monetary Gold “principle” — an
assumed “principle” also invoked now, two decades later, in the present
case concerning the obligation of elimination of nuclear weapons!
   133. Attention has to be turned to the nature of the case at issue, which
may well require a reasoning— as the cas d’espèce does — moving away
from “a strict State-centred voluntarist perspective” and from the “exal-
tation of State consent”, and seeking guidance in fundamental principles
(prima principia), such as the principle of humanity. This is what I
pointed out in my extensive dissenting opinion in the case concerning the
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, where I pondered inter alia that such prima principia
confer to the international legal order “its ineluctable axiological dimen-
sion”; they “conform its substratum, and convey the idea of an objective
justice, in the line of jusnaturalist thinking” (I.C.J. Reports 2015 (I),
p. 373, para. 517)
   134. That was not the ﬁrst time I made such ponderation: I had done
the same, in another extensive dissenting opinion, in the case concerning
the Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2011 (I), p. 322, para. 213
[hereinafter CERD]. In my subsequent aforementioned dissenting opinion
in the case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide, I expressed my dissatisfaction
that in a case pertaining to the interpretation and application of the Con-
vention against Genocide, the ICJ even made recourse to the so-called
Monetary Gold “principle” 155, which had no place in a case like that, and
  155   Even if only to dismiss it (para. 116).

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371      nuclear arms and disarmament (diss. op. cançado trindade)

           We reaﬃrm our commitment to the purposes and principles of the
        Charter of the United Nations, which have proved timeless and uni-
        versal. Indeed, their relevance and capacity to inspire have increased,
        as nations and peoples have become increasingly interconnected and
        interdependent” (A/RES/55/2, of 8 September 2000, paras. I (2-3)).

                X. Impertinence of the So-Called MONETARY
                             GOLD “Principle”

   132. The distortions generated by the obsession with the strict inter-State
paradigm are not hard to detect. An example is aﬀorded, in this connec-
tion, by the ICJ’s handling of the East Timor case (1995): the East Timorese
people had no locus standi to request intervention in the proceedings, not
even to present an amicus curiae, although the crucial point under consid-
eration was that of sovereignty over their own territory. Worse still, the
interests of a third State (which had not even accepted the Court’s jurisdic-
tion) were taken for granted and promptly safeguarded by the Court, by
means of the application of the so-called Monetary Gold “principle” — an
assumed “principle” also invoked now, two decades later, in the present
case concerning the obligation of elimination of nuclear weapons!
   133. Attention has to be turned to the nature of the case at issue, which
may well require a reasoning— as the cas d’espèce does — moving away
from “a strict State-centred voluntarist perspective” and from the “exal-
tation of State consent”, and seeking guidance in fundamental principles
(prima principia), such as the principle of humanity. This is what I
pointed out in my extensive dissenting opinion in the case concerning the
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, where I pondered inter alia that such prima principia
confer to the international legal order “its ineluctable axiological dimen-
sion”; they “conform its substratum, and convey the idea of an objective
justice, in the line of jusnaturalist thinking” (I.C.J. Reports 2015 (I),
p. 373, para. 517)
   134. That was not the ﬁrst time I made such ponderation: I had done
the same, in another extensive dissenting opinion, in the case concerning
the Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2011 (I), p. 322, para. 213
[hereinafter CERD]. In my subsequent aforementioned dissenting opinion
in the case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide, I expressed my dissatisfaction
that in a case pertaining to the interpretation and application of the Con-
vention against Genocide, the ICJ even made recourse to the so-called
Monetary Gold “principle” 155, which had no place in a case like that, and
  155   Even if only to dismiss it (para. 116).

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372    nuclear arms and disarmament (diss. op. cançado trindade)

“which does not belong to the realm of the prima principia, being nothing
more than a concession to State consent, within an outdated State volun-
tarist framework” (I.C.J. Reports 2015 (I), p. 374, para. 519).
   135. May I, in the present dissenting opinion, this time in the case of
Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament, again leave on the records my
dissatisfaction for the same reason. Once again, may I stress that the
adjudication of a case like the present one shows the need to go beyond
the strict inter-State outlook. The fact that the mechanism for the adjudi-
cation of contentious cases before the ICJ is an inter-State one, does not
at all imply that the Court’s reasoning should likewise be strictly
inter State. In the present case concerning nuclear weapons and the obli-
gation of nuclear disarmament, it is necessary to focus attention on peo-
ples, rather than on inter-State susceptibilities. It is imperative to keep in
mind the world population, in pursuance of a humanist outlook, in the
light of the principle of humanity.

      XI. The Fundamental Principle of the Juridical Equality
                            of States

   136. The present case stresses the utmost importance of the principle
of the juridical equality of States. The importance attributed to funda-
mental principles, the idea of an objective justice, and its incidence upon
the laws, go back in time, being deeply-rooted in jusnaturalist thinking. If
laws are deprived of justice, they no longer oblige in conscience. Ethics
cannot be dissociated from law; in the international scenario, each one is
responsible for all the others. To the “founding fathers” of the law of
nations (droit des gens), like Francisco de Vitoria and Francisco Suárez,
the principle of equality was fundamental, in the relations among indi-
viduals, as well as among nations. Their teachings have survived the ero-
sion of time: today, four and a half centuries later, the basic principle of
equality and non-discrimination is in the foundations of the law of the
United Nations itself.

   137. The present case is surely not the ﬁrst one before the ICJ that
brings to the fore the relevance of the principle of the juridical equality of
States. In the ICJ’s Order (of provisional measures of protection) of
3 March 2014, I had deemed it ﬁt to point out, in my separate opinion
appended thereto, that the case concerning Questions relating to the Sei-
zure and Detention of Certain Documents and Data (Timor-Leste v. Aus-
tralia)
      “bears witness of the relevance of the principle of the juridical
      equality of States. The prevalence of this fundamental principle has
      marked a longstanding presence in the realm of international law,

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373    nuclear arms and disarmament (diss. op. cançado trindade)

      ever since the times of the II Hague Peace Conference of 1907,
      and then of the drafting of the Statute of the Permanent Court of
      International Justice by the Advisory Committee of Jurists,
      in June-July 1920. Recourse was then made, by that Committee, inter
      alia, to general principles of law, as these latter embodied the objec-
      tive idea of justice. A general principle such as that of the juridical
      equality of States, enshrined a quarter of a century later in the
      United Nations Charter (Art. 2 (1)), is ineluctably intermingled with
      the quest for justice.
         Subsequently, throughout the drafting of the 1970 UN Declaration
      on Principles of International Law concerning Friendly Relations and
      Co-operation among States in accordance with the Charter of the
      United Nations (1964-1970), the need was felt to make it clear that
      stronger States cannot impose their will upon the weak, and that de
      facto inequalities among States cannot aﬀect the weaker in the vindi-
      cation of their rights. The principle of the juridical equality of States
      gave expression to this concern, embodying the idée de justice, ema-
      nated from the universal juridical conscience.” (I.C.J. Reports 2014,
      p. 184, paras. 44-45.)
   138. And one decade earlier, in my General Course on public interna-
tional law delivered at the Hague Academy of International Law (2005),
I pondered that
         “On successive occasions the principles of international law have
      proved to be of fundamental importance to humankind’s quest for
      justice. This is clearly illustrated by the role played, inter alia, by the
      principle of juridical equality of States. This fundamental princi-
      ple, — the historical roots of which go back to the II Hague Peace
      Conference of 1907, — proclaimed in the UN Charter and enunciated
      also in the 1970 Declaration of Principles, means ultimately that all
      States, — factually strong and weak, great and small, — are equal
      before international law, are entitled to the same protection under the
      law and before the organs of international justice, and to equality in
      the exercise of international rights and duties.

         Despite successive attempts to undermine it, the principle of
      juridical equality of States has remained, from the II Hague Peace
      Conference of 1907 to date, one of the basic pillars of international
      law. It has withstood the onslaught of time, and shown itself salutary
      for the peaceful conducting of international relations, being inelucta-
      bly associated — as it stands — with the foundations of international
      law. It has been very important for the international legal system
      itself, and has proven to be a cornerstone of international law in
      the United Nations era. In fact, the UN Charter gave it a new dimen-
      sion, and the principle developments such as that of the system

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374    nuclear arms and disarmament (diss. op. cançado trindade)

      of collective security, within the ambit of the law of the United
      Nations.” 156

   139. By the turn of the century, the General Assembly’s resolution 55/2,
of 8 September 2000, adopted the United Nations Millennium Declara-
tion, which inter alia upheld the “sovereign equality of all States”, in con-
formity with “the principles of justice and international law” (para. I (4)).
Half a decade later, the General Assembly’s resolution 60/1, of 16 Sep-
tember 2005, adopted the World Summit Outcome, which inter alia
expressed the determination “to establish a just and lasting peace all over
the world in accordance with the purposes and principles of the
[UN] Charter”, as well as “to uphold the sovereign equality of all States”
(para. I (5)). In stressing therein the “vital importance of an eﬀective multi-
lateral system” to face current challenges to international peace and secu-
rity (paras. 6-7), the international community reiterated its profession of
faith in the general principles of international law.

                  XII. Unfoundedness of the Strategy
                           of “Deterrence”

  140. In eﬀect, the strategy of “deterrence”, pursued by NWS in the
present context of nuclear disarmament in order to attempt to justify
their own position, makes abstraction of the fundamental principle of the
juridical equality of States, enshrined into the UN Charter. Factual
inequalities cannot be made to prevail over the juridical equality of States.
All UN Member States are juridically equal. The strategy of a few States
pursuing their own “national security interests” cannot be made to pre-
vail over a fundamental principle of international law set forth in the
UN Charter: factual inequalities between States cannot, and do not pre-
vail over the juridical equality of States.

   141. In its 1996 Advisory Opinion on the Threat or Use of
Nuclear Weapons, permeated with ambiguity, the ICJ gave undue
weight to “the still strong adherence to the practice of deterrence”
(I.C.J. Reports 1996 (I), pp. 254 and 255, paras. 67 and 73) by a few
NWS, to the point of beholding in it an obstacle to the formation
and consolidation of opinio juris and a customary rule as to the illegality
of nuclear weapons, leading to “a speciﬁc and express prohibition” of
their use (ibid., p. 255, para. 73). Here the Court assumed its usual
positivist posture: in its view, the prohibition must be express, stated in

  156 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

Gentium, op. cit. supra note 132, pp. 84-85, and cf. pp. 62-63, 65 and 73.

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375    nuclear arms and disarmament (diss. op. cançado trindade)

positive law, even if those weapons are capable of destroying all life on
earth, the whole of humankind . . .

   142. The ICJ, in its Advisory Opinion of 1996, gave too much weight
to the opposition of NWS as to the existence of an opinio juris on the
unlawfulness of nuclear weapons. And this, despite the fact that, in their
overwhelming majority, Member States of the United Nations stand
clearly against nuclear weapons, and in favour of nuclear disarmament.
The 1996 Advisory Opinion, notwithstanding, appears unduly inﬂuenced
by the lack of logic of “deterrence” 157. One cannot conceive, as the
1996 Advisory Opinion did, of recourse to nuclear weapons by a hypo-
thetical State in “self-defence” at the unbearable cost of the devastating
eﬀects and suﬀerings inﬂicted upon humankind as a whole, in an “escala-
tion to apocalypse” 158.

   143. The inﬂiction of such devastation and suﬀering is in ﬂagrant
breach of international law, — of the ILHR, IHL and the law of the
United Nations (cf. Part XIII, infra). It is, furthermore, in ﬂagrant breach
of norms of jus cogens 159. The strategy of “deterrence” seems to make
abstraction of all that. The ICJ, as the International Court of Justice,
should have given, on all occasions when it has been called upon to pro-
nounce on nuclear weapons (in the exercise of its jurisdiction on conten-
tious and advisory matters), far greater weight to the raison d’humanité 160,
rather than to the raison d’Etat nourishing “deterrence”. We have to keep
in mind the human person and the peoples, for which States were created,
instead of relying only on what one assumes to be the raison d’Etat. The
raison d’humanité, in my understanding, prevails surely over consider-
ations of Realpolitik.

   144. In its 1996 Advisory Opinion, the ICJ, however, at the same time,
rightly acknowledged the importance of complete nuclear disarmament,
asserted in the series of General Assembly resolutions, and the relevance
of the corresponding obligation under Article VI of the NPT to the inter-
national community as a whole (I.C.J. Reports 1996 (I), pp. 263-264,
paras. 99 and 102). To the Court, this is an obligation of result, and not
   157 Cf. criticisms of such posture in, e.g., A. Sayed, Quand le droit est face à son néant —

Le droit à l’épreuve de l’emploi de l’arme nucléaire, Brussels, Bruylant, 1998, pp. 79-80, 84,
88-89, 96 and 113.
   158 Cf. ibid., p. 147, and cf. pp. 129, 133, 151, 160, 174-175, 197 and 199-200.
   159 On the expansion of the material content of this latter, cf. A. A. Cançado Trindade,

“Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in
Contemporary International Case Law”, XXXV Curso de Derecho Internacional Organi-
zado por el Comité Jurídico Interamericano — 2008, Washington D.C., OAS General Secre-
tariat, 2009, pp. 3-29.
   160 A. A. Cançado Trindade, “La Humanización del Derecho Internacional y los

Límites de la Razón de Estado”, 40 Revista da Faculdade de Direito da Universidade Federal
de Minas Gerais — Belo Horizonte/Brazil (2001), pp. 11-23.

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376      nuclear arms and disarmament (diss. op. cançado trindade)

of mere conduct (I.C.J. Reports 1996 (I), p. 264, para. 99). Yet, it did not
extract the consequences of that. Had it done so, it would have reached
the conclusion that nuclear disarmament cannot be hampered by the con-
duct of a few States — the NWS — which maintain and modernize their
own arsenals of nuclear weapons, pursuant to their strategy of “deter-
rence”.

   145. The strategy of “deterrence” has a suicidal component. Nowa-
days, in 2016, twenty years after the 1996 ICJ Advisory Opinion, and
with the subsequent reiteration of the conventional and customary inter-
national legal obligation of nuclear disarmament, there is no longer any
room for ambiguity. There is an opinio juris communis as to the illegality
of nuclear weapons, and as to the well-established obligation of nuclear
disarmament, which is an obligation of result and not of mere conduct.
Such opinio juris cannot be erased by the dogmatic positivist insistence on
an express prohibition of nuclear weapons; on the contrary, that opinio
juris discloses that the invocation of the absence of an express prohibition
is nonsensical, in relying upon the destructive and suicidal strategy of
“deterrence”.
   146. Such strategy is incompatible with jusnaturalist thinking, always
attentive to ethical considerations (cf. Part XV, infra). Over half a century
ago (precisely 55 years ago), the UN General Assembly had already
stated, in its seminal resolution 1653 (XVI) of 1961, that the use of nuclear
weapons was “contrary to the spirit, letter and aims of the United Nations”,
a “direct violation” of the UN Charter, a breach of international law and
of “the laws of humanity”, and “a crime against mankind and civiliza-
tion” (operative para. 1). Several subsequent General Assembly resolu-
tions upheld the same understanding of resolution 1653 (XVI) of 1961
(cf. Part III, supra), leaving thus no room at all for ambiguity or hesita-
tion, or to any concession.

   147. Two decades ago, in the advisory proceedings of late 1995
before the ICJ, conducive to its 1996 Advisory Opinion on Threat or
Use of Nuclear Weapons, ﬁerce criticisms were voiced of the strategy of
“deterrence”, keeping in mind the inhumane suﬀerings of victims of
nuclear detonation, radiation and contamination 161. Attention was
drawn, on the occasion, to the “distortion of logic” in “deterrence”, in
trying to rely on so immensely destructive weapons to keep peace, and in
further trying to persuade others “to accept that for the last 50 or so
years this new and more dangerous and potentially genocidal level of
armaments should be credited with keeping peace” 162.

   161   Cf., e.g., the testimonies of the Mayors of Hiroshima and Nagasaki, in Part XIII,
infra.
   162   CR 1995/35, of 15 November 1995, p. 32 (statement of Zimbabwe).

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377     nuclear arms and disarmament (diss. op. cançado trindade)

   148. In the aforementioned advisory proceedings, “nuclear deterrence”
was dismissed as being “simply the maintenance of a balance of fear” 163;
it was criticized as seeking to ground itself on a “highly questionable”
premise, whereby a handful of NWS feel free to “arrogate to themselves”
the faculty “to determine what is world peace and security, exclusive in
the context of their own” national strategies and interests 164. It was con-
tended that nuclear weapons are in breach of international law by their
own nature, as weapons of catastrophic mass destruction; “nuclear deter-
rence” wrongfully assumes that States and individuals act rationally,
leaving the world “under the nuclear sword of Damocles”, stimulating
“the nuclear ambitions of their countries, thereby increasing overall insta-
bility”, and also increasing the danger of their being used “intentionally
or accidentally” 165.

   149. The NWS, in persisting to rely on the strategy of “deterrence”,
seem to overlook the above-reviewed distinct series of UN General Assem-
bly resolutions (cf. Part III, supra) condemning nuclear weapons and call-
ing for their elimination. The strategy of “deterrence” has come under
strong criticism over the years, for the serious risks it carries, and for its
indiﬀerence to the goal — supported by the United Nations, — of achiev-
ing a world free of nuclear weapons. Very recently, participants in the
series of Conferences on Humanitarian Impact of Nuclear Weapons
(2013-2014) strongly criticized the strategy of nuclear “deterrence”. In a
statement sent to the 2014 Vienna Conference, the UN Secretary-General
warned against the dangers of nuclear “deterrence”, undermining world
stability (cf. Part XIX, infra).

  150. There is here, in eﬀect, clearly formed, an opinio juris communis as
to the illegality and prohibition of nuclear weapons. The use or threat of
use of nuclear weapons being a clear breach of international law, of inter-
national humanitarian law and of the international law of human rights,
and of the UN Charter, renders unsustainable and unfounded any
invocation of the strategy of “deterrence”. In my view, a few States can-
not keep on insisting on “national security interests” to arrogate to
themselves indeﬁnitely the prerogative to determine by themselves the
conditions of world peace, and to impose them upon all others, the over-
whelming majority of the international community. The survival of
humankind cannot be made to depend on the “will” of a handful of priv-

  163 CR 1995/27, of 7 November 1995, p. 37 (statement of the Mayor of Nagasaki).
  164 Ibid., p. 45, para. 14 (statement of Malaysia).
  165 Ibid., p. 55, para. 8; and cf. pp. 60-61 and 63, paras. 17-20 (statement of Malaysia).

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378    nuclear arms and disarmament (diss. op. cançado trindade)

ileged States. The universal juridical conscience stands well above the
“will” of individual States.

             XIII. The Illegality of Nuclear Weapons and
               the Obligation of Nuclear Disarmament

         1. The Condemnation of All Weapons of Mass Destruction
   151. Since the beginning of the nuclear age, it became clear that the
eﬀects of nuclear weapons (such as heat and radiation) cannot be limited
to military targets only, being thus by nature indiscriminate and dispro-
portionate in their long-term devastation, disclosing the utmost cruelty.
The opinio juris communis as to the prohibition of nuclear weapons, and
of all weapons of mass destruction, has gradually been formed, over the
last decades 166. If weapons less destructive than nuclear weapons have
already been expressly prohibited (as is the case of biological and chemi-
cal weapons), it would be nonsensical to argue that, those which have
not, by positive conventional international law, like nuclear weapons,
would not likewise be illicit; after all, they have far greater and long-
lasting devastating eﬀects, threatening the existence of the international
community as a whole.

   152. It may be recalled that, already in 1969, all weapons of mass
destruction were condemned by the Institut de droit international (I.D.I.).
In the debates of its Edinburgh session on the matter, emphasis was
placed on the need to respect the principle of distinction (between mili-
tary and non-military objectives), and the terrifying eﬀects of the use of
nuclear weapons were pointed out, — the example of the atomic bombing
of Hiroshima and Nagasaki having been expressly recalled 167. In its reso-
lution of September 1969 on the matter, the Institut began by restating, in
the preamble, the prohibition of recourse to force in international law, and
the duty of protection of civilian populations in any armed conﬂict; it
further recalled the general principles of international law, customary
rules and conventions, — supported by international case law and prac-
tice, — which “clearly restrict” the extent to which the parties engaged in
a conﬂict may harm the adversary, and warned against “the consequences
which the indiscriminate conduct of hostilities and particularly the use of

   166 Cf., e.g., G. E. do Nascimento e Silva, “A Proliferação Nuclear e o Direito

Internacional”, Pensamiento Jurídico y Sociedad Internacional — Libro-Homenaje al
Prof. A. Truyol y Serra, Vol. II, Madrid, Universidad Complutense, 1986, pp. 877-886;
C. A. Dunshee de Abranches, Proscrição das Armas Nucleares, Rio de Janeiro, Livr.
Freitas Bastos, 1964, pp. 114-179.
   167 Cf. Annuaire de l’Institut de droit international — Session d’Edimbourg (1969)-II,

pp. 49-50, 53, 55, 60, 62-63, 66, 88-90 and 99.

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379      nuclear arms and disarmament (diss. op. cançado trindade)

nuclear, chemical and bacteriological weapons, may involve for civilian
populations and for mankind as a whole” 168.

   153. In its operative part, the aforementioned resolution of the Institut
stressed the importance of the principle of distinction (between military
and non-military objectives) as a “fundamental principle of international
law” and the pressing need to protect civilian populations in armed con-
ﬂicts 169 and added, in paragraphs 4 and 7, that:
          “Existing international law prohibits all armed attacks on the civil-
        ian population as such, as well as on non-military objects, notably
        dwellings or other buildings sheltering the civilian population, so long
        as these are not used for military purposes

         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
           Existing international law prohibits the use of all weapons which,
        by their nature, aﬀect indiscriminately both military objectives and
        non-military objects, or both armed forces and civilian populations.
        In particular, it prohibits the use of weapons the destructive eﬀect of
        which is so great that it cannot be limited to speciﬁc military objec-
        tives or is otherwise uncontrollable (self-generating weapons), as well
        as of ‘blind’ weapons.” 170
   154. For its part, the International Law Association (ILA), in its more
recent work (in 2014) on nuclear disarmament, after referring to Arti-
cle VI of the NPT, was of the view that it was not only conventional, but
also an evolving customary international obligation with an erga omnes
character, aﬀecting “the international community as a whole”, and not
only the States parties to the NPT 171. It also referred to the “world-wide
public opinion” pointing to “the catastrophic consequences for human-
kind of any use or detonation of nuclear weapons”, and added that reli-
ance on nuclear weapons for “deterrence” was thus unsustainable 172.

   155. In its view, “nuclear” deterrence is not a global “umbrella”, but
rather a threat to international peace and security, and NWS are still far
from implementing Article VI of the NPT 173. To the International Law
Association, the provisions of Article VI are not limited to States parties
to the NPT, “they are part of customary international law or at least
  168  Op. cit. supra note 167, pp. 375-376.
  169  Ibid., pp. 376-377, paras. 1-3, 5-6 and 8.
   170 Ibid., pp. 376-377.
   171 International Law Association (ILA), Committee: Nuclear Weapons, Non-Prolifera-

tion and Contemporary International Law (Second Report: Legal Aspects of Nuclear Disar-
mament), ILA, Washington Conference, 2014, pp. 2-4.
   172 Ibid., pp. 5-6.
   173 Ibid., pp. 8-9.

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380      nuclear arms and disarmament (diss. op. cançado trindade)

evolving custom”; they are valid erga omnes, as they aﬀect “the interna-
tional community as a whole”, and not only a group of States or a par-
ticular State 174. Thus, as just seen, learned institutions in international
law, such as the IDI and the ILA, have also sustained the prohibition in
international law of all weapons of mass destruction, starting with nuclear
weapons, the most devastating of all.

  156. A single use of nuclear weapons, irrespective of the circumstances,
may today ultimately mean the end of humankind itself 175. All weapons
of mass destruction are illegal, and are prohibited: this is what ineluctably
ensues from an international legal order of which the ultimate material
source is the universal juridical conscience 176. This is the position I have
consistently sustained over the years, including in a lecture I delivered at
the University of Hiroshima, Japan, on 20 December 2004 177. I have
done so in the line of jusnaturalist thinking, faithful to the lessons of the
“founding fathers” of the law of nations, keeping in mind not only States,
but also peoples and individuals, and humankind as a whole.

 2. The Prohibition of Nuclear Weapons: The Need of a People-Centred
                               Approach
   157. In eﬀect, the nuclear age itself, from its very beginning (the atomic
blasts of Hiroshima and Nagasaki in August 1945) can be properly stud-
ied from a people-centred approach. There are moving testimonies and
historical accounts of the devastating eﬀects of nuclear weapons, from
surviving victims and witnesses 178. Yet, even with the eruption of the
nuclear age, attention remained focused largely on State strategies: it
   174 Op. cit. supra note 171, p. 18.
   175 Nagendra Singh, Nuclear Weapons and International Law, London, Stevens, 1959,
p. 242.
   176 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

Gentium, op. cit. supra note 132, Chap. VI (“The Material Source of International Law:
Manifestations of the Universal Juridical Conscience”), pp. 139-161.
   177 Text of my lecture reproduced in: A. A. Cançado Trindade, Le droit international

pour la personne humaine, Paris, Pedone, 2012, Chap. I (“L’illicéité de toutes les armes
de destruction massive au regard du droit international contemporain”), pp. 61-90 ;
A. A. Cançado Trindade, A Humanização do Direito Internacional, 2nd ed., Belo Hori-
zonte/Brazil, Edit. Del Rey, 2015, Chap. XVII (“The Illegality under Contemporary Inter-
national Law of All Weapons of Mass Destruction”), pp. 361-390.
   178 Michihiko Hachiya, Journal d’Hiroshima — 6 août-30 septembre 1945 [1955], Paris,

Ed. Tallandier, 2015 (reed.), pp. 25-281; Toyofumi Ogura, Letters from the End of the
World — A First-Hand Account of the Bombing of Hiroshima [1948], Tokyo/N.Y./London,
Kodansha International, 2001 (reed.), pp. 15-173; Naomi Shohno, The Legacy of Hiro-
shima — Its Past, Our Future, Tokyo, Kösei Publ. Co., 1987 (reed.), pp. 13-140; Kenza-
buro Oe, Notes de Hiroshima [1965], [Paris,] Gallimard, 1996 (reed.), pp. 17-230; J. Hersey,
Hiroshima [1946], London, Penguin Books, 2015 [reprint], pp. 1-98.

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took some time for them gradually to shift to the devastating eﬀects of
nuclear weapons on peoples.

  158. As recalled in one of the historical accounts, only at the First
Conference against Atomic and Hydrogen Bombs (1955), “the victims
had their ﬁrst opportunity, after ten years of silence, to make themselves
heard”, in that forum 179. Over the last decades, there have been endeav-
ours to shift attention from State strategies to the numerous victims and
enormous damages caused by nuclear weapons, focusing on “human mis-
ery and human dignity” 180. Recently, one signiﬁcant initiative to this
eﬀect has been the series of Conferences on the Humanitarian Impact of
Nuclear Weapons (2013-2014), which I shall survey later on in this dis-
senting opinion (cf. Part XIX, infra).

   159. There has been a chorus of voices of those who have been person-
ally victimized by nuclear weapons in distinct circumstances, — either in
the atomic bombings of Hiroshima and Nagasaki (1945), or in nuclear
testing (during the Cold-War era) in regions such as Central Asia and the
Paciﬁc. Focusing on their intensive suﬀering (e.g., ensuing from radio-
active contamination and forced displacement) 181, aﬀecting successive
generations, they have drawn attention to the humanitarian consequences
of nuclear weapon detonations.

   160. In addressing the issue of nuclear weapons, on four successive occa-
sions (cf. infra), the ICJ appears, however, to have always suﬀered from
inter-State myopia. Despite the clarity of the formidable threat that nuclear
weapons represent, the treatment of the issue of their prohibition under
international law has most regrettably remained permeated by ambiguities.
The present case of Obligations concerning Negotiations relating to Cessa-
tion of the Nuclear Arms Race and to Nuclear Disarmament is the third time
that attempts were made, by means of the lodging of contentious cases with
the ICJ, to obtain its pronouncement thereon. On two prior occasions — in
the Nuclear Tests cases (1974 and 1995) 182, the Court assumed, in both of
them, a rather evasive posture, avoiding to pronounce clearly on the sub-
stance of a matter pertaining to the very survival of humankind.
   161. May I here brieﬂy single out one aspect of those earlier conten-
tious proceedings, given its signiﬁcance in historical perspective. It should
not pass unnoticed that, in the ﬁrst Nuclear Tests case (Australia v.
France; New Zealand v. France), one of the applicant States contended,
   179 Kenzaburo Oe, Hiroshima Notes [1965], N.Y./London, Marion Boyars, 1997 (reed.),

pp. 72 and 159.
   180 Ibid., pp. 149 and 162.
   181 Cf. J. Borrie, “Humanitarian Reframing of Nuclear Weapons and the Logic of a

Ban”, 90 International Affairs (2014), p. 633, and cf. pp. 637, 643-644 and 646.
   182 Cf. I.C.J. Reports 1974, pp. 63-455; and cf. I.C.J. Reports 1995, pp. 4-23, and the

position of three dissenting judges in ibid., pp. 317-421.

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382    nuclear arms and disarmament (diss. op. cançado trindade)

inter alia, that the nuclear testing undertaken by the French Government
in the South Paciﬁc region violated not only the right of New Zealand
that no radioactive material enter its territory, air space and territorial
waters and those of other Paciﬁc territories but also “the rights of all
members of the international community, including New Zealand, that
no nuclear tests that give rise to radioactive fall-out be conducted” 183.
   162. For its part, the other applicant State contended that it was seek-
ing protection to the life, health and well-being of Australia’s population,
in common with the populations of other States, against atmospheric
nuclear tests by any State 184. Thus, over three decades ago, the perspec-
tive of the Applications instituting proceedings of both New Zealand and
Australia (of 1973) went clearly — and correctly so — beyond the purely
inter-State dimension, as the problem at issue concerned the international
community as a whole.
   163. Both Australia and New Zealand insisted on the people-centred
approach throughout the legal proceedings (written and oral phases).
New Zealand, for example, in its Memorial, invoked the obligation erga
omnes not to undertake nuclear testing “owed to the international com-
munity as a whole” (paras. 207-208), adding that non-compliance with it
aroused “the keenest sense of alarm and antagonism among the peoples”
and States of the region wherein the tests were conducted (para. 212). In
its oral arguments in the public sitting of 10 July 1974 in the same Nuclear
Tests case, New Zealand again invoked “the rights of all members of the
international community”, and the obligations erga omnes owed to the
international community as a whole 185. And Australia, for example, in its
oral arguments in the public sitting of 8 July 1974, referring to the
1963 Partial Test Ban Treaty, underlined the concern of “the whole inter-
national community” for “the future of mankind” and the responsibility
imposed by “the principles of international law” upon “all States to
refrain from testing nuclear weapons in the atmosphere” 186.

  164. The outcome of the Nuclear Test cases, however, was rather dis-
appointing: even though the ICJ issued orders of provisional measures of
protection in the cases in June 1973 (requiring the respondent State to
cease testing), subsequently, in its Judgments of 1974 187, in view of the

   183 Application instituting proceedings (of 9 May 1973), Nuclear Tests case

(New Zealand v. France), pp. 8 and 15-16, cf. pp. 4-16.
   184 Ibid., Nuclear Tests case (Australia v. France), pp. 12 and 14, paras. 40, 47

and 49 (1).
   185 I.C.J. Pleadings, Nuclear Tests (New Zealand v. France), Vol. II: 1973-1974,

pp. 256-257 and 264-266.
   186 I.C.J. Pleadings, Nuclear Tests (Australia v. France), Vol. I, p. 503.
   187 For a critical parallel between the 1973 Orders and the 1974 Judgments,

cf. P. Lellouche, “The Nuclear Tests Cases: Judicial Silence versus Atomic Blasts”,
16 Harvard International Law Journal (1975), pp. 615-627 and 635; and, for further criti-
cisms, cf. ibid., pp. 614-637;

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383      nuclear arms and disarmament (diss. op. cançado trindade)

announcement of France’s voluntary discontinuance of its atmospheric
tests, the ICJ found, yielding to State voluntarism, that the claims of Aus-
tralia and New Zealand no longer had “any object” and that it was thus
not called upon to give a decision thereon 188. The dissenting judges in the
case rightly pointed out that the legal dispute between the Contending
Parties, far from having ceased, still persisted, since what Australia and
New Zealand sought was a declaratory judgment of the ICJ stating that
atmospheric nuclear tests were contrary to international law 189.

   165. The reticent position of the ICJ in that case was even more regret-
table if one recalls that the applicants, in referring to the “psychological
injury” caused to the peoples of the South Paciﬁc region through their
“anxiety as to the possible eﬀects of radioactive fall-out on the well-being
of themselves and their descendants”, as a result of the atmospheric
nuclear tests, ironically invoked the notion of erga omnes obligations (as
propounded by the ICJ itself in its obiter dicta in the Barcelona Traction
case only four years earlier) 190. As the ICJ reserved itself the right, in
certain circumstances, to reopen the case decided in 1974, it did so two
decades later, upon an Application instituted by New Zealand versus
France. But in its Order of 22 September 1995, the ICJ dismissed the
complaint, as it did not ﬁt into the caveat of the 1974 Judgment, which
concerned atmospheric nuclear tests; here, the complaint was directed
against the underground nuclear tests conducted by France since 1974 191.

   188 I.C.J. Reports 1974, pp. 272 and 478, respectively.
   189 Nuclear Tests case, joint dissenting opinion of Judges Onyeama, Dillard,
Jiménez de Aréchaga and Waldock, ibid., pp. 319-322, 367-369, 496, 500, 502-504, 514 and
520-521; and cf. dissenting opinion of Judge De Castro, ibid., pp. 386-390; and dissenting
opinion of Judge Barwick, ibid., pp. 392-394, 404-405, 436-437 and 525-528. It was further
pointed out that the ICJ should thus have dwelt upon the question of the existence of
rules of customary international law prohibiting States from causing, through atmospheric
nuclear tests, the deposit of radioactive fall-out on the territory of other States; Nuclear
Tests case, separate opinion of Judge Petrén, I.C.J. Reports 1974, pp. 303-306 and 488-489.
It was the existence or otherwise of such customary rules that had to be determined, a
question which unfortunately was left largely unanswered by the Court in that case.
    190 As recalled in the joint dissenting opinion of Judges Onyeama, Dillard,

Jiménez de Aréchaga and Waldock, I.C.J. Reports 1974, pp. 362, 368-369 and 520-521; as
well as in the dissenting opinion of Judge Barwick, ibid., pp. 436-437.
    191 Cf. I.C.J. Reports 1995, pp. 288-308; once again, there were dissenting opinions

(cf. ibid., pp. 317-421). Furthermore, petitions against the French nuclear tests in the atoll
of Mururoa and in that of Fangataufa, in French Polynesia, were lodged with the European
Commission of Human Rights (ECHR); cf. ECHR, case N. Narvii Tauira and 18 Others v.
France (Appl. No. 28204/95), decision of 4 December 1995, 83-A Decisions and Reports
(1995), p. 130.

132

384      nuclear arms and disarmament (diss. op. cançado trindade)

   166. The ICJ thus lost two historical opportunities, in both conten-
tious cases (1974 and 1995), to clarify the key point at issue (nuclear
tests). And now, with the decision it has just rendered today, 5 October
2016, it has lost a third occasion, this time to pronounce on the Obliga-
tions concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament, at the request of the Marshall Islands.
This time the Court has found that the existence of a legal dispute has not
been established before it and that it has no jurisdiction to consider the
Application lodged with it by the Marshall Islands on 24 April 2014.

   167. Furthermore, in the mid-1990s, the Court was called upon to
exercise its advisory function, in respect of a directly related issue, that of
nuclear weapons: both the UN General Assembly and the World Health
Organization (WHO) opened those proceedings before the ICJ, by means
of requests for an Advisory Opinion. Such requests no longer referred to
nuclear tests, but rather to the question of the threat or use of nuclear
weapons in the light of international law, for the determination of their
illegality or otherwise.
   168. In response to only one of the applications, that of the UN Gen-
eral Assembly 192, the Court, in the Advisory Opinion of 8 July 1996 on
the Threat or Use of Nuclear Weapons, aﬃrmed that neither customary
international law nor conventional international law authorizes speciﬁ-
cally the threat or use of nuclear weapons; neither one, nor the other,
contains a complete and universal prohibition of the threat or use of
nuclear weapons as such; it added that such threat or use which is con-
trary to Article 2 (4) of the UN Charter and does not fulﬁl the requisites
of its Article 51, is illicit; moreover, the conduct in armed conﬂicts should
be compatible with the norms applicable in them, including those of
international humanitarian law; it also aﬃrmed the obligation to under-
take in good will negotiations conducive to nuclear disarmament in all its
aspects 193.

   169. In the most controversial part of its Advisory Opinion (resolutory
point 2 E), the ICJ stated that the threat or use of nuclear weapons
“would be generally contrary to the rules of international law applicable
in armed conﬂict”, mainly those of international humanitarian law; how-
ever, the Court added that, at the present stage of international law “it
cannot conclude deﬁnitively if the threat or use of nuclear weapons would
be lawful or unlawful in an extreme circumstance of self-defence in which
    192 As the ICJ understood, as to the other application, that the WHO was not compe-

tent to deal with the question at issue, despite the purposes of that UN specialized agency
at issue and the devastating eﬀects of nuclear weapons over human health and the environ-
ment.
   193   I.C.J. Reports 1996 (I), pp. 266-267.

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385      nuclear arms and disarmament (diss. op. cançado trindade)

the very survival of a State would be at stake” 194. The Court therein lim-
ited itself to record the existence of a legal uncertainty.

   170. In fact, it did not go further than that, and the Advisory Opinion
was permeated with evasive ambiguities, not avoiding the shadow of the
non liquet, in relation to a question which aﬀects, more than each State
individually, the whole of humankind. The Advisory Opinion made
abstraction of the fact that international humanitarian law applies like-
wise in case of self-defence, always safeguarding the principles of distinc-
tion and proportionality (which nuclear weapons simply ignore) 195, and
upholding the prohibition of inﬂiction of unnecessary suﬀering.
   171. The Advisory Opinion could and should have given greater weight
to a point made before the ICJ in the oral arguments of November 1995,
namely, that of the need of a people-centred approach in the present
domain. Thus, it was stated, for example, that the “experience of the
Marshallese people conﬁrms that unnecessary suﬀering is an unavoidable
consequence of the detonation of nuclear weapons” 196; the eﬀects of
nuclear weapons, by their nature, are widespread, adverse and indiscrimi-
nate, aﬀecting also future generations 197. It was further stated that the
“horrifying evidence” of the use of atomic bombs in Hiroshima and
Nagasaki, followed by the experience and the aftermath of the nuclear
tests carried out in the region of the Paciﬁc Island States in the 1950s and
the 1960s, have alerted to “the much graver risks to which mankind is
exposed by the use of nuclear weapons” 198.

  172. The 1996 Opinion, on the one hand, recognized that nuclear
weapons cause indiscriminate and durable suﬀering, and have an enor-
mous destructive eﬀect (para. 35), and that the principles of humanitarian
law (encompassing customary law) are “intransgressible” (para. 79); nev-

   194 I.C.J. Reports 1996 (I), p. 266.
   195 L. Doswald-Beck, “International Humanitarian Law and the Advisory Opinion
of the International Court of Justice on the Legality of the Threat or Use of Nuclear
Weapons”, 316 International Review of the Red Cross (1997), pp. 35-55; H. Fujita, “The
Advisory Opinion of the International Court of Justice on the Legality of Nuclear
Weapons”, ibid., pp. 56-64. International humanitarian law prevails also over self-defence;
cf. M.-P. Lanfranchi and Th. Christakis, La licéité de l’emploi d’armes nucléaires devant la
Cour Internationale de Justice, Aix-Marseille/Paris, Université d’Aix-Marseille III/Econo-
mica, 1997, pp. 111, 121 and 123; S. Mahmoudi, “The International Court of Justice and
Nuclear Weapons”, 66 Nordic Journal of International Law (1997), pp. 77-100; E. David,
“The Opinion of the International Court of Justice on the Legality of the Use of Nuclear
Weapons”, 316 International Review of the Red Cross (1997), pp. 21-34.
   196 CR 1995/32, of 14 November 1995, p. 22 (statement of the Marshall Islands).
   197 Ibid., p. 23.
   198 Ibid., p. 31 (statement of Solomon Islands). Customary international law and general

principles of international law have an incidence in this domain; ibid., pp. 36 and 39-40.

134

386    nuclear arms and disarmament (diss. op. cançado trindade)

ertheless, these considerations did not appear suﬃcient to the Court to
discard the use of such weapons also in self-defence, thus eluding to tell
what the law is in all circumstances. It is clear to me that States are bound
to respect, and to ensure respect, for international humanitarian law
(IHL) and the international law of human rights (ILHR) in any circum-
stances; their fundamental principles belong to the domain of jus cogens,
in prohibition of nuclear weapons.

   173. Again, in the 1996 Opinion, it was the dissenting judges, and not
the Court’s split majority, who drew attention to this 199, and to the rele-
vance of the Martens clause in the present context 200 (cf. Part XIV, infra).
Moreover, the 1996 Opinion also minimized (para. 71) the resolutions of
the UN General Assembly which aﬃrm the illegality of nuclear weap-
ons 201 and condemn their use as a violation of the UN Charter and as a
crime against humanity. Instead, it took note of the “policy of deter-
rence”, which led it to ﬁnd that the members of the international com-
munity continued “profoundly divided” on the matter, rendering it
impossible to determine the existence of an opinio juris in this respect
(para. 67).

   174. It was not incumbent upon the Court to resort to the unfounded
strategy of “deterrence” (cf. Part XII, supra), devoid of any legal value for
the determination of the formation of a customary international law obli-
gation of prohibition of the use of nuclear weapons. The Court did not
contribute on this matter. In unduly relying on “deterrence” (para. 73), it
singled out a division, in its view “profound”, between an extremely
reduced group of nuclear powers on the one hand, and the vast majority
of the countries of the world on the other; it ended up by favouring the
former, by means of an inadmissible non liquet 202.

   199 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports

1996 (I), dissenting opinion of Judge Koroma, pp. 573-574 and 578.
   200 Cf. ibid., dissenting opinions of Judge Shahabuddeen, pp. 386-387, 406, 408, 410-411

and 425; and of Judge Weeramantry, pp. 477-478, 481, 483, 486-487, 490-491, 494, 508
and 553-554.
   201 Notably, the ground-breaking General Assembly resolution 1653 (XVI),

of 24 November 1961.
   202 A. A. Cançado Trindade, International Law for Humankind — Towards a New

Jus Gentium, op. cit. supra note 132, pp. 415-418; L. Condorelli, “Nuclear Weapons: A
Weighty Matter for the International Court of Justice — Jura Novit Curia?”, 316 Inter-
national Review of the Red Cross (1997), pp. 9-20; M. Mohr, “Advisory Opinion of the
International Court of Justice on the Legality of the Use of Nuclear Weapons under Inter-
national Law — A Few Thoughts on Its Strengths and Weaknesses”, 316 International
Review of the Red Cross (1997), pp. 92-102. The Opinion is not conclusive and provides
no guidance ; J.-P. Queneudec, “E.T. à la C.I.J. : méditations d’un extraterrestre sur deux
avis consultatifs”, 100 Revue générale de droit international public (1996), pp. 907-914,
esp. p. 912.

135

387   nuclear arms and disarmament (diss. op. cançado trindade)

   175. The Court, thus, lost yet another opportunity, — in the exercise
of its advisory function as well, — to contribute to the consolidation of
the opinio juris communis in condemnation of nuclear weapons. Its
1996 Advisory Opinion considered the survival of a hypothetical State (in
its resolutory point 2 E), rather than that of peoples and individuals, and
ultimately of humankind as a whole. It seemed to have overlooked that
the survival of a State cannot have primacy over the right to survival of
humankind as a whole.

 3. The Prohibition of Nuclear Weapons: The Fundamental Right to Life
   176. There is yet another related point to keep in mind. The ICJ’s
1996 Advisory Opinion erroneously took IHL as lex specialis (para. 25),
overstepping the ILHR, oblivious that the maxim lex specialis derogat
generalis, thus understood, has no application in the present context: in
face of the immense threat of nuclear weapons to human life on earth,
both IHL and the ILHR apply in a converging way 203, so as to enhance
the much-needed protection of human life. In any circumstances, the
norms which best protect are the ones which apply, be they of IHL or of
the ILHR, or any other branch of international protection of the human
person (such as the international law of refugees). They are all equally
important. Regrettably, the 1996 Advisory Opinion unduly minimized
the international case law and the whole doctrinal construction on the
right to life in the ambit of the ILHR.

   177. It should not pass unnoticed, in this connection, that contempo-
rary international human rights tribunals, such as the European (ECHR)
and the Inter-American (IACtHR) Courts of Human Rights, in the adju-
dication of successive cases in recent years, have taken into account the
relevant principles and norms of both the ILHR and IHL (conventional
and customary). For its part, the African Commission of Human and
Peoples’ Rights (ACHPR), in its longstanding practice, has likewise
acknowledged the approximations and convergences between the ILHR
and IHL, and drawn attention to the principles underlying both branches
of protection (such as, e.g., the principle of humanity).

  178. This has been done, in distinct continents, so as to seek to secure
the most eﬀective safeguard of the protected rights, in all circumstances

  203 Cf. A. A. Cançado Trindade, Derecho Internacional de los Derechos Humanos,

Derecho Internacional de los Refugiados y Derecho Internacional Humanitario — Aproxi-
maciones y Convergencias, Geneva, ICRC, [2000], pp. 1-66.

136

388    nuclear arms and disarmament (diss. op. cançado trindade)

(including in times of armed conﬂict). Contrary to what was held in the
ICJ’s 1996 Advisory Opinion, there is no lex specialis here, but rather a
concerted endeavour to apply the relevant norms (be they of the ILHR or
of IHL) that best protect human beings. This is particularly important
when they ﬁnd themselves in a situation of utmost vulnerability — such
as in the present context of threat or use of nuclear weapons. In their
case law, international human rights tribunals (like the ECHR and the
IACtHR) have focused attention on the imperative of securing protec-
tion, e.g., to the fundamental right to life, of persons in great vulnerabil-
ity (potential victims) 204.

   179. In the course of the proceedings before the ICJ in the present
cases of Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament, the applicant State
draws attention reiteratedly to the devastating eﬀects upon human life of
nuclear weapons detonations. Thus, in the case opposing the Marshall
Islands to the United Kingdom, the applicant State draws attention, in its
Memorial, to the destructive eﬀects of nuclear weapons (testing) in space
and time (pp. 12-14). In its oral arguments of 11 March 2016, the Mar-
shall Islands addresses the “tragic losses to the Marshallese”, the “dire
health consequences suﬀered by the Marshallese following nuclear con-
tamination, including extreme birth defects and cancers” 205.
   180. In the case opposing the Marshall Islands to India, the applicant
State, in its Memorial, refers to the grave “health and environmental con-
sequences of nuclear testing” upon the Marshallese (pp. 5-6). In its oral
arguments of 7 March 2016, the Marshall Islands stated:
         “The Marshall Islands has a unique and devastating history with
      nuclear weapons. While it was designated as a Trust Territory by the
      United Nations, no fewer than 67 atomic and thermonuclear weapons
      were deliberately exploded as ‘tests’ in the Marshall Islands, by the
      United States. (. . .) Several islands in my country were vaporized and
      others are estimated to remain uninhabitable for thousands of years.
      Many, many Marshallese died, suﬀered birth defects never before
      seen and battled cancers resulting from the contamination. Tragically
      the Marshall Islands thus bears eyewitness to the horriﬁc and indis-
      criminate lethal capacity of these weapons, and the intergenerational
      and continuing eﬀects that they perpetuate even 60 years later.

  204 Cf. A. A. Cançado Trindade, The Access of Individuals to International Justice,

Oxford University Press, 2012 [reprint], Chaps. II-III and VII, pp. 17-62 and 125-131.
  205 CR 2016/5, of 11 March 2016, p. 9, para. 10.

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389      nuclear arms and disarmament (diss. op. cançado trindade)

          One ‘test’ in particular, called the ‘Bravo’ test [in March 1954], was
        one thousand times stronger than the bombs dropped on Hiroshima
        and Nagasaki.” 206
   181. And in the case opposing the Marshall Islands to Pakistan, the
applicant State, in its Memorial, likewise addresses the serious “health
and environmental consequences of nuclear testing” upon the Marshal-
lese (pp. 5-6). In its oral arguments of 8 March 2016, the Marshall Islands
recalls the 67 atomic and thermonuclear weapons “tests” that it had to
endure (since it became a UN Trust Territory); it further recalls the refer-
ence, in the UN Charter, to nations “large and small” having “equal
rights” (preamble), and to the assertion in its Article 2 that the
United Nations is “based on the principle of the sovereign equality of all
its Members” 207.
   182. Two decades earlier, in the course of the advisory proceedings
before the ICJ of late 1995 preceding the 1996 Advisory Opinion on the
Threat or Use of Nuclear Weapons, the devastating eﬀects upon human
life of nuclear weapons detonations were likewise brought to the Court’s
attention. It is beyond the purposes of the present dissenting opinion to
review all statements to this eﬀect; suﬃce it here to recall two of the most
moving statements, from the Mayors of Hiroshima and Nagasaki, who
appeared before the Court as members of the delegation of Japan. The
Mayor of Hiroshima (Mr. Takashi Hiraoka) thus began his statement of
7 November 1995 before the ICJ:
          “I am here today representing Hiroshima citizens, who desire the
        abolition of nuclear weapons. More particularly, I represent the
        hundreds of thousands of victims whose lives were cut short, and
        survivors who are still suﬀering the eﬀects of radiation, 50 years later.
        On their behalf, I am here to testify to the cruel, inhuman nature
        of nuclear weapons.

         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
           The development of the atomic bomb was the product of co-
        operation among politicians, military and scientists. The nuclear age
        began the moment the bombs were dropped on human beings.

          Their enormous destructive power reduced utterly innocent civilian
        populations to ashes. Women, the elderly, and the newborn were
        bathed in deadly radiation and slaughtered.” 208

  183. After stressing that the mass killing was “utterly indiscriminate”,
he added that, even today, “thousands of people struggle daily with the

  206 CR 2016/1, of 7 March 2016, p. 16, paras. 4-5.
  207 CR 2016/2, of 8 March 2016, p. 10, paras. 5-7.
  208 CR 1995/27, of 7 November 1995, pp. 22-23.

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390      nuclear arms and disarmament (diss. op. cançado trindade)

curse of illness caused by that radiation”, there being until then “no truly
accurate casualty ﬁgures” 209. The exposure in Hiroshima to high-levels of
radiation, he proceeded, “was the ﬁrst in human history”, generating leu-
kaemia, distinct kinds of cancer (of breast, lung, stomach, thyroid, and
other), extending for “years or decades”, with all the fear generated by
such continuing killing “across years or decades” 210.

  184. Even half a century later, added the Mayor of Hiroshima, “the
eﬀects of radiation on human bodies are not thoroughly understood.
Medically, we do know that radiation destroys cells in the human body,
which can lead to many forms of pathology” 211. The victimized segments
of the population have continued suﬀering “psychologically, physically,
and socially from the atomic bomb’s after-eﬀects” 212. He further stated
that

          “The horror of nuclear weapons (. . .) derives (. . .) from the tre-
        mendous destructive power, but equally from radiation, the eﬀects of
        which reach across generations. (. . .) What could be more cruel?
        Nuclear weapons are more cruel and inhumane than any weapon
        banned thus far by international law.” 213

   185. After singling out the signiﬁcance of UN General Assembly reso-
lution 1653 (XVI) of 1961, the Mayor of Hiroshima warned that “[t]he
stockpiles of nuclear weapons on earth today are enough to annihilate the
entire human race several times over. These weapons are possessed on the
assumption that they can be used” 214. He concluded with a strong criti-
cism of the strategy of “deterrence”; in his own words,

          As long as nuclear weapons exist, the human race faces a real and
        present danger of self-extermination. The idea based on nuclear deter-
        rence that nuclear war can be controlled and won exhibits a failure
        of human intelligence to comprehend the human tragedy and global
        environmental destruction brought about by nuclear war.

  209 CR 1995/27, of 7 November 1995, pp. 24-25.
  210 Ibid., pp. 25-27.
  211 Ibid., p. 25.
  212 Ibid., pp. 27-28.
  213 Ibid., p. 30.
  214 Ibid., pp. 30-31.

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391      nuclear arms and disarmament (diss. op. cançado trindade)

          [O]nly through a treaty that clearly stipulates the abolition of
        nuclear weapons can the world step toward the future. (. . .)” 215
   186. For his part, the Mayor of Nagasaki (Mr. Iccho Itoh), in his
statement before the ICJ, also of 7 November 1995, likewise warned that
“nuclear weapons bring enormous, indiscriminate devastation to civilian
populations”; thus, ﬁve decades ago, in Hiroshima and Nagasaki, “a sin-
gle aircraft dropped a single bomb and snuﬀed out the lives of 140,000
and 74,000 people, respectively. And that is not all. Even the people who
were lucky enough to survive continue to this day to suﬀer from the late
eﬀects unique to nuclear weapons. In this way, nuclear weapons bring
enormous, indiscriminate devastation to civilian populations” 216.

   187. He added that “the most fundamental diﬀerence between nuclear
and conventional weapons is that the former release radioactive rays at
the time of explosion”, and the exposure to large doses of radiation gen-
erates a “high incidence of disease” and mortality (such as leukaemia and
cancer). Descendants of atomic bomb survivors will have, amidst anxiety,
“to be monitored for several generations to clarify the genetic impact”;
“nuclear weapons are inhuman tools for mass slaughter and destruction”,
their use “violates international law” 217. The Mayor of Nagasaki con-
cluded with a strong criticism of “nuclear deterrence”, characterizing it as
“simply the maintenance of a balance of fear” (CR 1995/27, p. 37), always
threatening peace, with its “psychology of suspicion and intimidation”;
the Nagasaki survivors of the atomic bombing of 50 years ago, “continue
to live in fear of late eﬀects” 218.

   188. Those testimonies before the ICJ, in the course of contentious
proceedings (in 2016) as well as advisory proceedings (two decades ear-
lier, in 1995), leave it quite clear that the threat or use (including “test-
ing”) of nuclear weapons entails an arbitrary deprivation of human life,
and is in ﬂagrant breach of the fundamental right to life. It is in manifest
breach of the ILHR, of IHL, as well as the law of the United Nations,
and has an incidence also on the ILR. There are, furthermore, in such
grave breach, aggravating circumstances: the harm caused by radiation
from nuclear weapons cannot be contained in space, nor can it be con-
tained in time, it is a true inter-generational harm.

  215 CR 1995/27, of 7 November 1995, p. 31.
  216 Ibid., p. 33.
  217 Ibid., pp. 36-37.
  218 Ibid., pp. 39.

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392     nuclear arms and disarmament (diss. op. cançado trindade)

  189. As pointed out in the pleadings before the ICJ of late 1995, the
use of nuclear weapons thus violates the right to life (and the right to
health) of “not only people currently living, but also of the unborn, of
those to be born, of subsequent generations” 219. Is there anything quint-
essentially more cruel? To use nuclear weapons appears like condemning
innocent persons to hell on earth, even before they are born. That seems
to go even further than the Book of Genesis’s story of the original sin. In
reaction to such extreme cruelty, the consciousness of the rights inherent
to the human person has always marked a central presence in endeavours
towards complete nuclear disarmament.

      4. The Absolute Prohibitions of Jus Cogens and the Humanization
                           of International Law
  190. The absolute prohibition of arbitrary deprivation of human life
(supra) is one of jus cogens, originating in the ILHR, and with an inci-
dence also on IHL and the ILR, and marking presence also in the law of
the United Nations. The absolute prohibition of inﬂicting cruel, inhuman
or degrading treatment is one of jus cogens, originating likewise in the
ILHR, and with an incidence also on IHL and the ILR. The absolute
prohibition of inﬂicting unnecessary suﬀering is one of jus cogens, origi-
nating in IHL, and with an incidence also on the ILHR and the ILR.

   191. In addition to those converging trends (ILHR, IHL, ILR) of
international protection of the rights of the human person, those prohibi-
tions of jus cogens mark presence also in contemporary international
criminal law (ICL), as well as in the corpus juris gentium of condemnation
of all weapons of mass destruction. The absolute prohibitions of jus
cogens nowadays encompass the threat or use of nuclear weapons, for all
the human suﬀering they entail: in the case of their use, a suﬀering with-
out limits in space or in time, and extending to succeeding generations.

   192. I have been characterizing, over the years, the doctrinal and
jurisprudential construction of international jus cogens as proper of
the new jus gentium of our times, the international law for humankind. I
have been sustaining, moreover, that, by deﬁnition, international jus
cogens goes beyond the law of treaties, extending itself to the law of the
international responsibility of the State, and to the whole corpus juris

  219   CR 1995/35, of 15 November 1995, p. 28 (statement of Zimbabwe).

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393    nuclear arms and disarmament (diss. op. cançado trindade)

of contemporary international law, and reaching, ultimately, any juridi-
cal act 220.
   193. In my lectures in an OAS Course of International Law delivered
in Rio de Janeiro almost a decade ago, e.g., I have deemed it ﬁt to ponder
that
         “The fact that the concepts both of the jus cogens, and of the obli-
      gations (and rights) erga omnes ensuing therefrom, already integrate
      the conceptual universe of contemporary international law, the new
      jus gentium of our days, discloses the reassuring and necessary open-
      ing of this latter, in the last decades, to certain superior and funda-
      mental values. This signiﬁcant evolution of the recognition and
      assertion of norms of jus cogens and obligations erga omnes of pro-
      tection is to be fostered, seeking to secure its full practical application,
      to the beneﬁt of all human beings. In this way the universalist vision
      of the founding fathers of the droit des gens is being duly rescued.
      New conceptions of the kind impose themselves in our days, and, of
      their faithful observance, will depend to a large extent on the future
      evolution of contemporary international law.

         This latter does not emanate from the inscrutable ‘will’ of the
      States, but rather, in my view, from human conscience. General or
      customary international law emanates not so much from the practice
      of States (not devoid of ambiguities and contradictions), but rather
      from the opinio juris communis of all the subjects of international law
      (States, international organizations, human beings, and humankind
      as a whole). Above the will stands the conscience. (. . .)
         The current process of the necessary humanization of international
      law stands in reaction to that state of aﬀairs. It bears in mind the
      universality and unity of the humankind, which inspired, more than
      four and a half centuries ago, the historical process of formation of
      the droit des gens. In rescuing the universalist vision which marked
      the origins of the most lucid doctrine of international law, the afore-
      mentioned process of humanization contributes to the construction
      of the new jus gentium of the twenty-ﬁrst century, oriented by the
      general principles of law. This process is enhanced by its own concep-
      tual achievements, such as, to start with, the acknowledgement and
      recognition of jus cogens and the consequent obligations erga omnes
      of protection, followed by other concepts disclosing likewise a univer-
      salist perspective of the law of nations
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         The emergence and assertion of jus cogens in contemporary inter-
      national law fulﬁl the necessity of a minimum of verticalization in the
      international legal order, erected upon pillars in which the juridical

  220 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

Gentium, op. cit. supra note 132, Chap. XII, pp. 291-326.

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394    nuclear arms and disarmament (diss. op. cançado trindade)

      and the ethical are merged. The evolution of the concept of jus cogens
      transcends nowadays the ambit of both the law of treaties and the
      law of the international responsibility of the States, so as to reach
      general international law and the very foundations of the interna-
      tional legal order.” 221

      5. The Pitfalls of Legal Positivism: A Rebuttal of the So-Called
                             Lotus “Principle”
   194. A matter which concerns the whole of humankind, such as that of
the existence of nuclear weapons, can no longer be appropriately dealt
with from a purely inter-State outlook of international law, which is
wholly surpassed in our days. After all, without humankind there is no
State whatsoever; one cannot simply have in mind States, apparently
overlooking humankind. In its 1996 Advisory Opinion, the ICJ took note
of the treaties which nowadays prohibit, e.g., biological and chemical
weapons 222, and weapons which cause excessive damages or have indis-
criminate eﬀects (I.C.J. Reports 1996 (I), p. 256, para. 76) 223.

   195. But the fact that nowadays, in 2016, there does not yet exist a
similar general treaty, of speciﬁc prohibition of nuclear weapons, does
not mean that these latter are permissible (in certain circumstances, even
in self-defence) 224. In my understanding, it cannot be sustained, in a mat-
ter which concerns the future of humankind, that which is not expressly
prohibited is thereby permitted (a classic postulate of positivism). This
posture would amount to the traditional — and surpassed — attitude of
the laisser-faire, laisser-passer, proper of an international legal order frag-
mented by State voluntarist subjectivism, which in the history of interna-
tional law has invariably favoured the most powerful ones. Ubi societas,
ibi jus . . .

  196. Legal positivists, together with the so-called “realists” of Real-
politik, have always been sensitive to the established power, rather than to
values. They overlook the time dimension, and are incapable to behold a
universalist perspective. They are static, in time and space. Nowadays, in
   221 A. A. Cançado Trindade, “Jus Cogens: The Determination and the Gradual Expan-

sion of Its Material Content in Contemporary International Case Law”, XXXV Curso
de Derecho Internacional Organizado por el Comité Jurídico Interamericano — 2008,
Washington D.C., OAS General Secretariat, 2009, pp. 3-29.
   222 The Geneva Protocol of 1925, and the Conventions of 1972 and 1993 against Biolo-

gical and Chemical Weapons, respectively.
   223 E.g., the 1980 Convention on Prohibitions or Restrictions on the Use of Certain

Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Eﬀects.
   224 The Roman-privatist inﬂuence — with its emphasis on the autonomy of the will had

harmful consequences in traditional international law; in the public domain, quite to the
contrary, conscience stands above the “will”, also in the determination of competences.

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395    nuclear arms and disarmament (diss. op. cançado trindade)

the second decade of the twenty-ﬁrst century, in an international legal
order which purports to assert common superior values, amidst consider-
ations of international ordre public, and basic considerations of humanity,
it is precisely the reverse logic which is to prevail: that which is not permit-
ted, is prohibited 225.

   197. Even in the days of the “Lotus” case (1927), the view endorsed by
the old PCIJ whereby under international law everything that was not
expressly prohibited would thereby be permitted, was object of severe
criticisms, not only of a compelling dissenting opinion in the case itself 226
but also on the part of expert writing of the time 227. Such conception
could only have ﬂourished in an epoch “politically secure” in global
terms, certainly quite diﬀerent from that of the current nuclear age, in
face of the recurrent threat of nuclear weapons and other weapons of
mass destruction, the growing vulnerability of territorial States and
indeed of the world population, and the increasing complexity in the con-
ducting of international relations. In our days, in face of such a terrifying
threat, it is the logical opposite to that of the “Lotus” case which imposes
itself: all that is not expressly permitted is surely prohibited 228. All
weapons of mass destruction, including nuclear weapons, are illegal and
prohibited under contemporary international law.
   198. The case of Shimoda and Others (District Court of Tokyo, deci-
sion of 7 December 1963), with the dismissed claims of ﬁve injured survi-
vors of the atomic bombings of Hiroshima and Nagasaki, stands as a
grave illustration of the veracity of the maxim summum jus, summa inju-
ria, when one proceeds on the basis of an allegedly absolute submission
of the human person to a degenerated international legal order built on
an exclusively inter-State basis. May I here reiterate what I wrote in 1981,
regarding the Shimoda and Others case, namely,

         “The whole arguments in the case reﬂect the insuﬃciencies of an
      international legal order being conceived and erected on the basis of
      an exclusive inter-State system, leaving individual human beings

   225 A. A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação,

Rio de Janeiro, Edit. Renovar, 2002, p. 1099.
   226 Cf. dissenting opinion of Judge Loder, “Lotus” case [France v. Turkey], Judgment

No. 9, 1927, P.C.I.J., Series A, No. 10, p. 34 (such conception was not in accordance with
the “spirit of international law”).
   227 Cf. J. L. Brierly, The Basis of Obligation in International Law and Other Papers,

Oxford, Clarendon Press, 1958, p. 144; H. Lauterpacht, The Function of Law in the Inter-
national Community, Oxford, Clarendon Press, 1933, pp. 409-412 and 94-96; and cf., subse-
quently, e.g., G. Herczegh, “Sociology of International Relations and International Law”,
Questions of International Law (ed. G. Haraszti), Budapest, Progresprint, 1971, pp. 69-71
and 77.
   228 A. A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação,

op. cit. supra note 225, p. 1099.

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396    nuclear arms and disarmament (diss. op. cançado trindade)

      impotent in the absence of express treaty provisions granting them
      procedural status at international level. Even in such a matter directly
      aﬀecting fundamental human rights, the arguments were conducted
      in the case in the classical lines of the conceptual apparatus of the
      so-called law on diplomatic protection, in a further illustration of
      international legal reasoning still being haunted by the old Vattelian
      ﬁction.” 229

   199. There exists nowadays an opinio juris communis as to the illegality
of all weapons of mass destruction, including nuclear weapons, and the
obligation of nuclear disarmament, under contemporary international
law. There is no “gap” concerning nuclear weapons; given the indiscrimi-
nate, lasting and indescribable suﬀering they inﬂict, they are outlawed, as
much as other weapons of mass destruction (biological and chemical
weapons) are. The positivist outlook purporting to challenge this prohibi-
tion of contemporary general international law has long been surpassed.
Nor can this matter be approached from a strictly inter-State outlook,
without taking into account the condition of peoples and human beings
as subjects of international law.

   200. All weapons of mass destruction are illegal under contemporary
international law. The threat or use of such weapons is condemned in any
circumstances by the universal juridical conscience, which in my view
constitutes the ultimate material source of international law, as of all law.
This is in keeping with the conception of the formation and evolution of
international law which I have been sustaining for many years; it tran-
scends the limitations of legal positivism, seeking to respond eﬀectively to
the needs and aspirations of the international community as a whole, and,
ultimately, of all humankind.

      XIV. Recourse to the “Martens Clause” as an Expression
                    of the RAISON D’HUMANITÉ

  201. Even if there was a “gap” in the law of nations in relation to
nuclear weapons, which there is not, it is possible to ﬁll it by resorting to
general principles of law. In its 1996 Advisory Opinion, the ICJ preferred
to focus on self-defence of a hypothetical individual State, instead of

    229 A. A. Cançado Trindade, “The Voluntarist Conception of International Law: A

Re-Assessment”, 59 Revue de droit international de sciences diplomatiques et politiques,
Geneva (1981), p. 214, and cf. pp. 212-213. On the need of a universalist perspective,
cf. also K. Tanaka, “The Character of World Law in the International Court of Justice”
[translated from Japanese into English by S. Murase], 15 Japanese Annual of International
Law (1971), pp. 1-22.

145

397    nuclear arms and disarmament (diss. op. cançado trindade)

developing the rationale of the Martens clause, the purpose of which is
precisely that of ﬁlling gaps 230 in the light of the principles of the law of
nations, the “laws of humanity” and the “dictates of public conscience”
(terms of the wise premonition of Fyodor Fyodorovich von Martens 231,
originally formulated at the I Hague Peace Conference of 1899).

   202. Yet, continuing recourse to the Martens clause, from 1899 to our
days, consolidates it as an expression of the strength of human conscience.
Its historical trajectory of more than one century has sought to extend
protection juridically to human beings in all circumstances (even if not
contemplated by conventional norms). Its reiteration for over a century
in successive international instruments, besides showing that conventional
and customary international law in the domain of protection of the
human person go together, reveals the Martens clause as an emanation of
the material source par excellence of the whole law of nations (the univer-
sal juridical conscience), giving expression to the raison d’humanité and
imposing limits to the raison d’Etat 232.

   203. It cannot be denied that nuclear weapons are intrinsically indis-
criminate, incontrollable, that they cause severe and durable damage and
in a wide scale in space and time, that they are prohibited by international
humanitarian law (Articles 35, 48 and 51 of the Additional Protocol I
of 1977 to the 1949 Geneva Conventions on international humanitarian
law), and are inhuman as weapons of mass destruction 233. Early in the
present nuclear age, the four Geneva Conventions established the grave
violations of international law (Convention I, Article 49 (3); Conven-
tion II, Article 50 (3); Convention III, Article 129 (3); and Convention IV,
Article 146 (3)). Such grave violations, when involving nuclear weapons,
victimize not only States, but all other subjects of international law as
well, individuals and groups of individuals, peoples, and humankind as a
whole.

   230 J. Salmon, “Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace

ou de l’emploi d’armes nucléaires’ rendu le 8 juillet 1996 par la Cour internationale de
Justice”, Mélanges en l’honneur de N. Valticos — Droit et justice (ed. R.-J. Dupuy), Paris,
Pedone, 1999, pp. 197-214, esp. pp. 208-209 ; R. Ticehurst, “The Martens Clause and the
Laws of Armed Conﬂict”, 317 International Review of the Red Cross (1997), pp. 125-134,
esp. pp. 133-134 ; A. Azar, Les opinions des juges dans l’avis consultatif sur la licéité de la
menace ou de l’emploi d’armes nucléaires, Brussels, Bruylant, 1998, p. 61.
   231 Which was intended to extend juridically the protection to the civilians and comba-

tants in all situations, even if not contemplated by the conventional norms.
  232 A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

Vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 497-509.
  233 Cf. comments in Commentary on the Additional Protocols of 8 June 1977 to the

Geneva Conventions of 12 August 1949 (eds. Y. Sandoz, C. Swinarski and B. Zimmer-
mann), Geneva, ICRC/Nijhoﬀ, 1987, pp. 389-420 and 597-600.

146

398    nuclear arms and disarmament (diss. op. cançado trindade)

   204. The absence of conventional norms stating speciﬁcally that
nuclear weapons are prohibited in all circumstances does not mean that
they would be allowed in a given circumstance. Two decades ago, in the
course of the advisory proceedings of late 1995 before the ICJ leading to
its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons,
some of the participating States drew attention to the incidence of the
Martens clause in the present domain 234. It was pointed out, on the occa-
sion, that the argument that international instruments do not speciﬁcally
contain an express prohibition of use of nuclear weapons seems to over-
look the Martens clause 235.
   205. Also in rebuttal of that argument, — typical of legal positivism, in
its futile search for an express prohibition, — it was further observed that
the “principles of humanity” and the “dictates of public conscience”,
evoked by the Martens clause, permeate not only the law of armed con-
ﬂict, but “the whole of international law”; they are essentially dynamic,
pointing to conduct which may nowadays be condemned as inhumane by
the international community 236, such as recourse to the threat or use of
nuclear weapons. It was further stated, in the light of the Martens clause,
that the “threat and use of nuclear weapons violate both customary inter-
national law and the dictates of public conscience” 237.

   206. The Martens clause safeguards the integrity of law (against the
undue permissiveness of a non liquet) by invoking the principles of the law
of nations, the “laws of humanity” and the “dictates of the public con-
science”. Thus, that absence of a conventional norm is not conclusive,
and is by no means the end of the matter, — bearing in mind also cus-
tomary international law. Such absence of a conventional provision
expressly prohibiting nuclear weapons does not at all mean that they are
legal or legitimate 238. The evolution of international law 239 points, in our
days, in my understanding, towards the construction of the international

    234 Cf. CR 1995/31, of 13 November 1995, pp. 45-46 (statement of Samoa); CR 1995/25,

of 3 November 1995, p. 55 (statement of Mexico); CR 1995/27, of 7 November 1995, p. 60
(statement of Malaysia).
    235 CR 1995/26, of 6 November 1995, p. 32 (statement of Iran).
    236 CR 1995/22, of 30 October 1995, p. 39 (statement of Australia).
    237 CR 1995/35, of 15 November 1995, p. 33 (statement of Zimbabwe).
    238 Stefan Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pedone,

1964, pp. 15, 21, 24-27, 32, 36-37, 41, 43-44 and 62-63, and cf. pp. 18 and 53.
    239 If, in other epochs, the ICJ had likewise limited itself to verify a situation of “legal

uncertainty” (which, anyway, does not apply in the present context), most likely it would
not have issued its célèbres Advisory Opinions on Reparation for Injuries Suffered in the
Service of the United Nations (1949), on Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide (1951), and on Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970) (1971), which have so much contributed to the
evolution of international law.

147

399    nuclear arms and disarmament (diss. op. cançado trindade)

law for humankind 240 and, within the framework of this latter, to the
outlawing by general international law of all weapons of mass destruc-
tion.
   207. Had the ICJ, in its 1996 Advisory Opinion on the Threat or Use
of Nuclear Weapons, made decidedly recourse in great depth to the Mar-
tens clause, it would not have lost itself in a sterile exercise, proper of a
legal positivism déjà vu, of a hopeless search of conventional norms, frus-
trated by the ﬁnding of what it understood to be a lack of these latter as
to nuclear weapons speciﬁcally, for the purposes of its analysis. The exist-
ing arsenals of nuclear weapons, and of other weapons of mass destruc-
tion, are to be characterized by what they really are: a scorn and the
ultimate insult to human reason, and an aﬀront to the juridical conscience
of humankind.

   208. The aforementioned evolution of international law, — of which
the Martens clause is a signiﬁcant manifestation, — has gradually moved
from an international into a universal dimension, on the basis of funda-
mental values, and in the sense of an objective justice 241, which has always
been present in jusnaturalist thinking. Human conscience stands above
the “will” of individual States. This evolution has, in my perception, sig-
niﬁcantly contributed to the formation of an opinio juris communis in
recent decades, in condemnation of nuclear weapons.

   209. This opinio juris communis is clearly conformed in our days: the
overwhelming majority of Member States of the United Nations, the
NNWS, have been sustaining for years the series of General Assembly
resolutions in condemnation of the use of nuclear weapons as illegal
under general international law. To this we can add other developments,
reviewed in the present dissenting opinion, such as, e.g., the NPT Review
Conferences, the establishment of regional nuclear-weapon-free zones,
and the Conferences on Humanitarian Impact of Nuclear Weapons
(cf. Parts XVII-XIX, infra).

      XV. Nuclear Disarmament: Jusnaturalism, the Humanist
      Conception and the Universality of International Law

  210. The existence of nuclear weapons, — maintained by the strategy
of “deterrence” and “mutually assured destruction” (“MAD”, as it
   240 Cf. A. A. Cançado Trindade, International Law for Humankind — Towards a New

Jus Gentium, op. cit. supra note 132, pp. 1-726.
   241 A. A. Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la

Humanización del Derecho Internacional, Buenos Aires, Ed. Ad-Hoc, 2013, pp. 166-167 ;
and cf. C. Husson-Rochcongar, Droit international des droits de l’homme et valeurs — Le
recours aux valeurs dans la jurisprudence des organes spécialisés, Brussels, Bruylant, 2012,
pp. 309-311, 451-452, 578-580, 744-745 and 771-772.

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400    nuclear arms and disarmament (diss. op. cançado trindade)

became adequately called, since it was devised in the Cold-War era), is the
contemporary global tragedy of the nuclear age. Death, or self-destruc-
tion, haunts everyone everywhere, propelled by human madness. Human
beings need protection from themselves, today more than ever 242, — and
this brings our minds to other domains of human knowledge. Law by
itself cannot provide answers to this challenge to humankind as a whole.

   211. In the domain of nuclear disarmament, we are faced today, within
the conceptual universe of international law, with unexplainable insuﬃ-
ciencies, or anomalies, if not absurdities. For example, there are fortu-
nately in our times conventions prohibiting biological and chemical
weapons (of 1972 and 1993), but there is to date no such comprehensive
conventional prohibition of nuclear weapons, which are far more destruc-
tive. There is no such prohibition despite the fact that they are in clear
breach of international law, of IHL and the ILHR, as well as of the law
of the United Nations.

   212. Does this make any sense? Can international law prescind from
ethics? In my understanding, not at all. Just as law and ethics go together
(in the line of jusnaturalist thinking), scientiﬁc knowledge itself cannot be
dissociated from ethics. The production of nuclear weapons is an illustra-
tion of the divorce between ethical considerations and scientiﬁc and tech-
nological progress. Otherwise, weapons which can destroy millions of
innocent civilians, and the whole of humankind, would not have been
conceived.
   213. The principles of recta ratio, orienting the lex praeceptiva, ema-
nate from human conscience, aﬃrming the ineluctable relationship
between law and ethics. Ethical considerations are to guide the debates on
nuclear disarmament. Nuclear weapons, capable of destroying human-
kind as a whole, carry evil in themselves. They ignore civilian popula-
tions, they make abstraction of the principles of necessity, of distinction
and of proportionality. They overlook the principle of humanity. They
have no respect for the fundamental right to life. They are wholly illegal
and illegitimate, rejected by the recta ratio, which endowed jus gentium, in
its historical evolution, with ethical foundations, and its character of uni-
versality.
   214. Already in 1984, in its General Comment No. 14 (on the right to
life), the UN Human Rights Committee (HRC — under the Covenant on

   242 In another international jurisdiction, in my separate opinion in the IACtHR’s case

of the Massacres of Ituango v. Colombia (judgment of 1 July 2006), I devoted part of my
reﬂections to “human cruelty in its distinct manifestations in the execution of State poli-
cies” (Part II, paras. 9-13).

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401    nuclear arms and disarmament (diss. op. cançado trindade)

Civil and Political Rights), for example, began by warning that war and
mass violence continue to be “a scourge of humanity”, taking the lives of
thousands of innocent human beings every year (para. 2). In successive
sessions of the General Assembly, it added, representatives of States from
all geographical regions have expressed their growing concern at the
development and proliferation of “increasingly awesome weapons of
mass destruction” (para. 3). Associating itself with this concern, the HRC
stated that

        “It is evident that the designing, testing, manufacture, possession
      and deployment of nuclear weapons are among the greatest threats
      to the right to life which confront mankind today. This threat is com-
      pounded by the danger that the actual use of such weapons may be
      brought about, not only in the event of war, but even through human
      or mechanical error or failure.

         Furthermore, the very existence and gravity of this threat generates
      a climate of suspicion and fear between States, which is in itself anta-
      gonistic to the promotion of universal respect for and observance of
      human rights and fundamental freedoms in accordance with the
      Charter of the United Nations and the International Covenants on
      Human Rights.
         The production, testing, possession, deployment and use of nuclear
      weapons should be prohibited and recognized as crimes against
      humanity.
         The Committee, accordingly, in the interest of mankind, calls upon
      all States (. . .) to take urgent steps (. . .) to rid the world of this men-
      ace.” (Paras. 4-7.) 243
   215. The absence in contemporary international law of a comprehen-
sive conventional prohibition of nuclear weapons is incomprehensible.
Contrary to what legal positivists think, law is not self-suﬃcient, it needs
inputs from other branches of human knowledge for the realization
of justice. Contrary to what legal positivists think, norms and values
go together, the former cannot prescind from the latter. Contrary to legal
positivism, — may I add, — jusnaturalism, taking into account ethi-
cal considerations, pursues a universalist outlook (which legal positivists

    243 General Comment No. 14 (of 1984) of the HRC, text in: United Nations, Compila-

tion of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, doc. HRI/GEN/1/Rev.3, of 15 August 1997, pp. 18-19. The HRC, further stressing
that the right to life is a fundamental right which does not admit any derogation not even
in time of public emergency, related the current proliferation of weapons of mass destruc-
tion to “the supreme duty of States to prevent wars”. Cf. also UN Report of the Human
Rights Committee, G.A.O.R. — Fortieth Session (1985), suppl. No. 40 (A/40/40), p. 162.

150

402    nuclear arms and disarmament (diss. op. cançado trindade)

are incapable of doing), and beholds humankind as entitled to protec-
tion 244.
   216. Humankind is subject of rights, in the realm of the new jus gen-
tium 245. As this cannot be visualized from the optics of the State, contem-
porary international law has reckoned the limits of the State as from the
optics of humankind. Natural law thinking has always been attentive to
justice, which much transcends positive law. The present case of Obliga-
tions concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament has been lodged with the International
Court of Justice, and not with an International Court of Positive Law.
The contemporary tragedy of nuclear weapons cannot be addressed from
the myopic outlook of positive law alone.

   217. Nuclear weapons, and other weapons of mass destruction, have
no ethics, have no ground on the law of nations (le droit des gens): they
are in ﬂagrant breach of its fundamental principles, and those of IHL, the
ILHR, as well as the law of the United Nations. They are a contemporary
manifestation of evil, in its perennial trajectory going back to the Book of
Genesis (cf. Part VIII, supra). Jusnaturalist thinking, always open to ethi-
cal considerations, identiﬁes and discards the disrupting eﬀects of the
strategy of “deterrence” of fear creation and inﬂiction 246 (cf. Part XII,
supra). Humankind is victimized by this.

   244 A. A. Cançado Trindade, International Law for Humankind — Towards a New

Jus Gentium, op. cit. supra note 132, pp. 1-726. Recta ratio and universalism, present in
the jusnaturalist thinking of the “founding fathers” of international law (F. de Vitoria,
F. Suárez, H. Grotius, among others), go far back in time to the legacies of Cicero,
in his characterization of recta ratio in the foundations of jus gentium itself, and of
Thomas Aquinas, in his conception of synderesis, as predisposition of human reason to be
guided by principles in the search of the common good; ibid., pp. 10-14.
   245 Ibid., Chap. XI, pp. 275-288 ; A. A. Cançado Trindade, “Quelques réﬂexions sur

l’humanité comme sujet du droit international”, Unité et diversité du droit international —
Ecrits en l’honneur du Prof. P.-M. Dupuy (eds. D. Alland, V. Chetail, O. de Frouville and
J. E. Viñuales), Leiden, Nijhoﬀ, 2014, pp. 157-173.
    246 Cf., to this eﬀect, C. A. J. Coady, “Natural Law and Weapons of Mass Destruc-

tion”, Ethics and Weapons of Mass Destruction — Religious and Secular Perspectives (eds.
S. H. Hashmi and S. P. Lee), Cambridge University Press, 2004, p. 122, and cf. p. 113;
and cf. also J. Finnis, J. M. Boyle Jr. and G. Grisez, Nuclear Deterrence, Morality and
Realism, Oxford, Clarendon Press, 1987, pp. 77-103, 207-237, 275-319 and 367-390. In
eﬀect, contemporary expert writing has become, at last, very critical of the “failed strategy”
of “deterrence”; cf., inter alia, e.g., [Various Authors], At the Nuclear Precipice — Catas-
trophe or Transformation? (eds. R. Falk and D. Krieger), London, Palgrave/MacMillan,
2008, pp. 162, 209, 218 and 229; A. C. Alves Pereira, Os Impérios Nucleares e Seus Reféns:
Relações Internacionais Contemporâneas, Rio de Janeiro, Ed. Graal, 1984, pp. 87-88, and
cf. pp. 154, 209 and 217.

151

403    nuclear arms and disarmament (diss. op. cançado trindade)

   218. In eﬀect, humankind has been, already for a long time, a potential
victim of nuclear weapons. To establish such condition of potential vic-
tim, one does not need to wait for the actual destruction of life on earth.
Humankind has, for the last decades, been suﬀering psychological harm
caused by the existence itself of arsenals of nuclear weapons. And there
are peoples, and segments of populations, who have been actual victims of
the vast and harmful eﬀects of nuclear tests. The existence of actual and
potential victims is acknowledged in international case law in the domain
of the international law of human rights 247. To address this danger from
a strict inter-State outlook is to miss the point, to blind oneself. States
were created and exist for human beings, and not vice versa.

   219. The NPT has a universalist vocation, and counts on everyone, as
shown by its three basic principled pillars together. In eﬀect, as soon as it
was adopted, the 1968 NPT came to be seen as having been devised and
concluded on the basis of those principled pillars, namely: non-prolifera-
tion of nuclear weapons (preamble and Articles I-III), peaceful use of
nuclear energy (preamble and Articles IV-V), and nuclear disarmament
(preamble and Article VI) 248. The antecedents of the NPT go back to the
work of the UN General Assembly in 1953 249. The NPT’s three-pillar
framework came to be reckoned as the “grand bargain” between its par-
ties, NWS and NNWS. But soon it became a constant point of debate
between NWS and NNWS parties to the NPT. In eﬀect, the “grand bar-
gain” came to be seen as “asymmetrical” 250, and NNWS began to criti-
cize the very slow pace of achieving nuclear disarmament as one of the
three basic principled pillars of the NPT (Art. VI) 251.

   247 For an early study on this issue, cf. A. A. Cançado Trindade, “Co-existence and

Co-ordination of Mechanisms of International Protection of Human Rights (At Global
and Regional Levels)”, 202 RCADI (1987), Chap. XI, pp. 271-283. And for subsequent
developments on the notion of potential victims, cf. A. A. Cançado Trindade, The Access
of Individuals to International Justice, Oxford University Press, 2012 [reprint], Chap. VII,
pp. 125-131.
   248 Articles VIII-XI, in turn, are procedural in nature.
   249 In particular the speech of President D. D. Eisenhower (US) to the UN General

Assembly in 1953, as part of his plan “Atoms for Peace”; cf., e.g., I. Chernus, Eisenhower’s
Atoms for Peace, [Austin], Texas A & M University Press, 2002, pp. 3-154.
    250 J. Burroughs, The Legal Framework for Non-Use and Elimination of Nuclear

Weapons, [N.Y.], Greenpeace International, 2006, p. 13.
    251 H. Williams, P. Lewis and S. Aghlani, The Humanitarian Impacts of Nuclear

Weapons Initiative: The “Big Tent” in Disarmament, London, Chatham House, 2015, p. 7;
D. H. Joyner, “The Legal Meaning and Implications of Article VI of the Non-Prolifera-
tion Treaty”, Nuclear Weapons and International Law (eds. G. Nystuen, S. Casey-Maslen
and A. G. Bersagel), Cambridge University Press, 2014, pp. 397, 404 and 417, and
cf. pp. 398-399 and 408; and cf. D. H. Joyner, Interpreting the Nuclear Non-Proliferation
Treaty, Oxford University Press, 2013 [reprint], pp. 2, 104 and 126, and cf. pp. 20, 26-29,
31, 97 and 124.

152

404    nuclear arms and disarmament (diss. op. cançado trindade)

   220. Under the NPT, each State is required to do its due. NWS are
no exception to that, if the NPT is not to become dead letter. To achieve
the three interrelated goals (non-proliferation of nuclear weapons,
peaceful use of nuclear energy, and nuclear disarmament) is a duty of
each and every State towards humankind as a whole. It is a universal
duty of conventional and customary international law in the nuclear age.
There is an opinio juris communis to this eﬀect, sedimented during recent
decades, and evidenced in the successive establishment, in distinct conti-
nents, of nuclear-weapon-free zones, and nowadays in the Conferences on
the Humanitarian Impact of Nuclear Weapons (cf. Parts XVIII-XIX,
infra).

 XVI. The Principle of Humanity and the Universalist Approach:
        JUS NECESSARIUM Transcending the Limitations
                      of JUS VOLUNTARIUM

   221. In my understanding, there is no point in remaining attached to
an outdated and reductionist inter-State outlook, particularly in view
of the revival of the conception of the law of nations (droit des gens)
encompassing humankind as a whole, as foreseen and propounded by the
“founding fathers” of international law 252 (in the sixteenth-
seventeenth centuries). It would be nonsensical to try to cling to the
unduly reductionist inter-State outlook in the international adjudication
of a case concerning the Contending Parties and aﬀecting all States, all
peoples and humankind as a whole.
   222. An artiﬁcial, if not fossilized, strictly inter-State mechanism of
dispute-settlement cannot pretend to entail or require a (likewise) entirely
inadequate and groundless inter-State reasoning. The law of nations can-
not be interpreted and applied in a mechanical way, as from an exclu-
sively inter-State paradigm. To start with, the humane ends of States
cannot be overlooked. In relation to nuclear weapons, the potential vic-
tims are the human beings and peoples, beyond their respective States, for
whom these latter were created and exist.

  223. As I had the occasion to point out in another international juris-
diction, the law of nations (droit des gens), since its historical origins in
the sixteenth century, was seen as comprising not only States (emerging as
they were), but also peoples, the human person (individually and in

   252 A. A. Cançado Trindade, Evolution du droit international au droit des gens —

L’accès des particuliers à la justice internationale : le regard d’un juge, Paris, Pedone, 2008,
pp. 1-187.

153

405      nuclear arms and disarmament (diss. op. cançado trindade)

groups), and humankind as a whole 253. The strictly inter-State outlook
was devised much later on, as from the Vattelian reductionism of the
mid-seventeenth century, which became en vogue by the end of the
sixteenth century and beginning of the twentieth century, with the well-
known disastrous consequences — the successive atrocities victimizing
human beings and peoples in distinct regions of world, — during the whole
twentieth century 254. In the present nuclear age, extending for the last
seven decades, humankind as a whole is threatened.

   224. Within the ICJ as well, I have had also the occasion to stress the
need to go beyond the inter-State outlook. Thus, in my dissenting opinion
in the recent case of the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia), I have
pointed out, inter alia, that the 1948 Convention against Genocide is not
State-centric, but is rather oriented towards groups of persons, towards
the victims, whom it seeks to protect (I.C.J. Reports 2015 (I), pp. 226
and 376, paras. 59 and 529). The humanist vision of the international
legal order pursues an outlook centred on the peoples, keeping in mind
the humane ends of States.

  225. I have further underlined that the principle of humanity is
deeply-rooted in the long-standing thinking of natural law (ibid., p. 229,
para. 69).
          “Humaneness came to the fore even more forcefully in the treat-
        ment of persons in situation of vulnerability, or even defencelessness,
        such as those deprived of their personal freedom, for whatever reason.
        The jus gentium, when it emerged as amounting to the law of nations,
        came then to be conceived by its ‘founding fathers’ (F. de Vitoria,
        A. Gentili, F. Suárez, H. Grotius, S. Pufendorf, C. Wolﬀ) as regulat-
        ing the international community constituted by human beings socially
        organized in the (emerging) States and co-extensive with humankind,
        thus conforming the necessary law of the societas gentium.

           The jus gentium, thus conceived, was inspired by the principle of
        humanity lato sensu. Human conscience prevails over the will of indi-
        vidual States. Respect for the human person is to the beneﬁt of the
        common good. This humanist vision of the international legal order
        pursued — as it does nowadays — a people- centred outlook, keeping
        in mind the humane ends of the State. The precious legacy of natural
        law thinking, evoking the right human reason (recta ratio), has never
        faded away.” (Ibid., p. 231, paras. 73-74.)

   253 IACtHR, case of the Moiwana Community v. Suriname (judgment of 15 June 2005),

separate opinion of Judge Cançado Trindade, paras. 6-7.
  254   Ibid.

154

406   nuclear arms and disarmament (diss. op. cançado trindade)

The precious legacy of natural law thinking has never vanished; despite the
indiﬀerence and pragmatism of the “strategic” droit d’étatistes (so numer-
ous in the legal profession nowadays), the principle of humanity emerged
and remained in international legal thinking as an expression of the raison
d’humanité imposing limits to the raison d’Etat (I.C.J. Reports 2015 (I),
p. 231, para. 74).
   226. This is the position I have always taken, within the ICJ and, ear-
lier on, the IACtHR. For example, in the ICJ’s Advisory Opinion on
Judgment No. 2867 of the Administrative Tribunal of the International
Labour Organization upon a Complaint Filed against the International
Fund for Agricultural Development (of 1 February 2012), I devoted one
entire part (Part XI) of my separate opinion to the erosion — as I per-
ceive it — of the inter-State outlook of adjudication by the ICJ
(I.C.J. Reports 2012 (I), pp. 79-81, paras. 76-81). I warned likewise in my
separate opinion in the case of Whaling in the Antarctic (Australia v.
Japan), Order of 6 February 2013, on New Zealand’s intervention)
(I.C.J. Reports 2013, pp. 21-23, paras. 21-23), as well as in my recent sep-
arate opinion in the case of Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2016 (I) (pp. 49-51, paras. 16-21
and pp. 54-58, paras. 28-41).

  227. Earlier on, within the IACtHR, I took the same position: for
example, inter alia, in my concurring opinions in both the Advisory Opin-
ion No. 16, on the Right to Information on Consular Assistance in the
Framework of the Due Process of Law (of 1 October 1999), and the Advi-
sory Opinion No. 18, on the Juridical Condition and Rights of Undocu-
mented Migrants (of 17 September 2003), of the IACtHR, I deemed it ﬁt
to point out, — going beyond the strict inter-State dimension, — that, if
non-compliance with Article 36 (1) (b) of the 1963 Vienna Convention
on Consular Relations takes place, it occurs to the detriment not only of
a State party but also of the human beings at issue. Such pioneering
jurisprudential construction, in the line of jusnaturalist thinking, rested
upon the evolving concepts of jus cogens and obligations erga omnes of
protection 255.

  228. Recta ratio stands ﬁrmly above the “will”. Human conscience, —
the recta ratio so cultivated in jusnaturalism, — clearly prevails over the
“will” and the strategies of individual States. It points to a universalist
conception of the droit des gens (the lex praeceptiva for the totus orbis),
applicable to all (States as well as peoples and individuals), given the
unity of the humankind. Legal positivism, centred on State power and

   255 Cf. comments of A. A. Cançado Trindade, Os Tribunais Internacionais e a Reali-

zação da Justiça, Rio de Janeiro, Edit. Renovar, 2015, pp. 463-468.

155

407   nuclear arms and disarmament (diss. op. cançado trindade)

“will”, has never been able to develop such universalist outlook, so essen-
tial and necessary to address issues of concern to humankind as a whole,
such as that of the obligation of nuclear disarmament. The universal
juridical conscience prevails over the “will” of individual States.

   229. The “founding fathers” of the law of nations (such as, inter alia,
F. de Vitoria, F. Suárez and H. Grotius) had in mind humankind as a
whole. They conceived a universal jus gentium for the totus orbis, securing
the unity of the societas gentium; based on a lex praeceptiva, the jus gen-
tium was apprehended by the recta ratio, and conformed a true jus neces-
sarium, much transcending the limitations of the jus voluntarium. Law
ultimately emanates from the common conscience of what is juridically
necessary (opinio juris communis necessitatis) 256. The contribution of the
“founding fathers” of jus gentium found inspiration largely in the scholas-
tic philosophy of natural law (in particular in the stoic and Thomist con-
ception of recta ratio and justice), which recognized the human being as
endowed with intrinsic dignity).
   230. Moreover, in face of the unity of the humankind, they conceived
a truly universal law of nations, applicable to all — States as well as peo-
ples and individuals — everywhere (totus orbis). In thus contributing to
the emergence of the jus humanae societatis, thinkers like Francisco
de Vitoria and Domingo de Soto, among others, permeated their lessons
with the humanist thinking that preceded them. Four and a half centuries
later, their lessons remain contemporary, endowed with perennial validity
and aptitude to face, e.g., the contemporary and dangerous problem of
the existing arsenals of nuclear weapons. Those thinkers went well beyond
the “will” of States, and rested upon the much safer foundation of human
conscience (recta ratio and justice).

   231. The conventional and customary obligation of nuclear disarma-
ment brings to the fore another aspect: the issue of the validity of interna-
tional legal norms is, after all, metajuridical. International law cannot
simply remain indiﬀerent to values, general principles of law and ethical
considerations; it has, to start with, to identify what is necessary, — such
as a world free of nuclear weapons, — in order to secure the survival of
humankind. This idée du droit precedes positive international law, and is
in line with jusnaturalist thinking.

   232. Opinio juris communis necessitatis upholds a customary interna-
tional law obligation to secure the survival of humankind. Conventional
and customary obligations go here together. Just as customary rules may

  256 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

Gentium, op. cit. supra note 132, pp. 137-138.

156

408    nuclear arms and disarmament (diss. op. cançado trindade)

eventually be incorporated into a convention, treaty provisions may like-
wise eventually enter into the corpus of general international law. Cus-
tomary obligations can either precede, or come after, conventional
obligations. They evolve pari passu. This being so, the search for an
express legal prohibition of nuclear weapons (such as the one undertaken
in the ICJ’s Advisory Opinion of 1996 on the Threat or Use of Nuclear
Weapons) becomes a futile, if not senseless, exercise of legal positivism.

   233. It is clear to human conscience that those weapons, which can
destroy the whole of humankind, are unlawful and prohibited. They are
in clear breach of jus cogens. And jus cogens was reckoned by human
conscience well before it was incorporated into the two Vienna Conven-
tions on the Law of Treaties (of 1969 and 1986). As I had the occasion to
warn, three decades ago, at the 1986 UN Conference on the Law of Trea-
ties between States and International Organizations or between Interna-
tional Organizations, jus cogens is “incompatible with the voluntarist
conception of international law, because that conception failed to explain
the formation of rules of general international law” 257.

                        XVII. NPT Review Conferences

   234. In fact, in the course of the written phase of the proceedings
before the Court in the present case of Obligations concerning Negotia-
tions relating to Cessation of the Nuclear Arms Race and to Nuclear Disar-
mament, both the Marshall Islands 258 and the United Kingdom 259
addressed, in their distinct arguments, the series of NPT Review Confer-
ences. For its part, India also addressed the Review Conferences 260, in
particular to leave on the records its position on the matter, as explained
in a statement made on 9 May 2000.
   235. Likewise, in the course of the oral phase of the present proceed-
ings before the Court in cas d’espèce, the applicant State, the Mar-

    257 UN, United Nations Conference on the Law of Treaties between States and Inter-

national Organizations or between International Organizations — Official Records, Vol. I
(statement by the Representative of Brazil, A. A. Cançado Trindade, of 12 March 1986),
pp. 187-188, para. 18.
    258 Application instituting proceedings, p. 38, para. 66; and Memorial, pp. 29, 56-60,

61, 63, 68-69, 71 and 73, paras. 50, 123-128, 130, 136, 150, 153, 154, 161-162 and 168; and
Statement of Observations on Preliminary Objections [United Kingdom’s], pp. 15 and 47,
paras. 32 and 126.
    259 Preliminary Objections, pp. 1-2, 10 and 23, paras. 2-3, 21 and 50.
    260 Counter-Memorial, p. 15, para. 23, note 49, and Annex 23.

157

409    nuclear arms and disarmament (diss. op. cançado trindade)

shall Islands, referred to the NPT Review Conferences in its oral
arguments in two of the three cases it lodged with the Court against
India 261, and the United Kingdom 262; references to the Review Confer-
ences were also made, for their part, in their oral arguments, by the two
respondent States which participated in the public sittings before the
Court, namely, India 263 and the United Kingdom 264. Those Review Con-
ferences conform the factual context of the cas d’espèce, and cannot pass
unnoticed. May I thus proceed to a brief review of them.
   236. The NPT Review Conferences, held every ﬁve years, started
in 1975. The following three Conferences of the kind were held, respec-
tively, in 1980, 1985 and 1990, respectively 265. The ﬁfth of such Confer-
ences took place in 1995, the same year that the Marshall Islands became
a party to the NPT (on 30 January 1995). In one of its decisions, the 1995
NPT Conference singled out the vital role of the NPT in preventing the
proliferation of nuclear weapons, and warned that the proliferation of
nuclear weapons would seriously increase the danger of nuclear war 266.
For their part, NWS reaﬃrmed their commitment, under Article VI of
the NPT, to pursue in good faith negotiations on eﬀective measures relat-
ing to nuclear disarmament.
   237. The 1995 Review Conference prolonged indeﬁnitely the NPT, and
adopted its decision on “Principles and Objectives for Nuclear Non-Pro-
liferation and Disarmament”. Yet, in its report, the Main Committee I
(charged with the implementation of the provisions of the NPT) observed
with regret that Article VI and preambular paragraphs 8-12 of the NPT
had not been wholly fulﬁlled 267, with the number of nuclear weapons
then existing being greater than the one existing when the NPT entered
into force; it further regretted “the continuing lack of progress” on rele-
vant items of the Conference on Disarmament, and urged a commitment
on the part of NWS on “no-ﬁrst use and non-use of nuclear weapons with
immediate eﬀect” 268.

  238. Between the ﬁfth and the sixth Review Conferences, India and
Pakistan carried out nuclear tests in 1998. For its part, on several occa-
   261 CR 2016/1, of 7 March 2016, pp. 26-27 and 50, paras. 9 and 17 (Marshall Islands);

CR 2016/6, of 14 March 2016, p. 32, para. 10 (Marshall Islands).
   262 CR 2016/5, of 11 March 2016, p. 47, para. 8 (Marshall Islands).
   263 CR 2016/4, of 10 March 2016, p. 14, para. 3 (India).
   264 CR 2016/7, of 9 March 2016, pp. 14-16 and 18-19, paras. 20, 22, 24, 32 and 37

(United Kingdom).
   265 For an assessment of these earlier NPT Review Conferences, cf. H. Müller,

D. Fischer and W. Kötter, Nuclear Non-Proliferation and Global Order, Stockholm-Solna/
Oxford, SIPRI/Oxford University Press, 1994, pp. 31-108.
   266 Decision 2, NPT/CONF.1995/32 (Part I), Annex, p. 2.

   267 Ibid., Final Document, Part II, p. 257, paras. 3-3ter, and cf. pp. 258 and 260,

paras. 4 and 9.
   268 Ibid., pp. 271-273, paras. 36-39.

158

410      nuclear arms and disarmament (diss. op. cançado trindade)

sions, the Movement of Non-Aligned Countries called for “urgent” mea-
sures of nuclear disarmament 269. To this eﬀect, the 2000 Review
Conference agreed to a document containing the “13 Practical Steps” in
order to meet the commitments of States parties under Article VI of the
NPT 270. The “13 Practical Steps” stress the relevance and urgency of
ratiﬁcations of the CTBT so as to achieve its entry into force, and of set-
ting up a moratorium on nuclear-weapon tests pending such entry into
force. Furthermore, they call for the commencement of negotiations on a
treaty banning the production of ﬁssile material for nuclear weapons and
also call upon NWS to accomplish the total elimination of nuclear arse-
nals 271.

  239. At the 2005 Review Conference, no substantive decision was
adopted, amidst continuing disappointment at the lack of progress on
implementation of Article VI of the NPT, particularly in view of the
“13 Practical Steps” agreed to at the 2000 Review Conference. Concerns
were expressed that new nuclear weapon systems were being developed,
and strategic doctrines were being adopted lowering the threshold for the
use of nuclear weapons; moreover, regret was also expressed that States
whose ratiﬁcation was needed for the CTBT’s entry into force had not yet
ratiﬁed the CTBT 272.

   240. Between the 2005 and the 2010 Review Conferences, there were
warnings that the NPT was “now in danger” and “under strain”, as the
process of disarmament had “stagnated” and needed to be “revived” in
order to prevent the spread of weapons of mass destruction. The concerns
addressed what was regarded as the unsatisfactory stalemate in the Con-
ference on Disarmament in Geneva, which had been “unable to adopt an
agenda for almost a decade” to identify substantive issues to be discussed
and negotiated in the Conference 273.

   269 NPT/CONF.2000/4, paras. 12-13.
   270 Final Document (NPT/CONF.2000/28), Vol. 1, Part I, pp. 14-15.
   271 The “13 practical steps”, moreover, aﬃrm that the principle of irreversibility should

apply to all nuclear disarmament and reduction measures. At last, the 13 practical steps
reaﬃrm the objective of general and complete disarmament under eﬀective international
control, and stress the importance of both regular reports on the implementation of NPT’s
Article VI obligations, and the further development of veriﬁcation capabilities.
   272 NPT/CONF.2005/57, Part I, and cf. report on the 2005 Review Conference: 30 UN

Disarmament Yearbook (2005), Chap. I, p. 23.
  273 Hans Blix, Why Disarmament Matters, Cambridge, Mass./London, Boston Review/

MIT, 2008, pp. 6 and 63.

159

411    nuclear arms and disarmament (diss. op. cançado trindade)

   241. The “Five-Point Proposal on Nuclear Disarmament”, announced
by the Secretary-General in an address of 24 October 2008 274, began by
urging all NPT States parties, in particular the NWS, to fulﬁl their obli-
gations under the Treaty “to undertake negotiations on eﬀective measures
leading to nuclear disarmament” (para. 1) 275. It called upon the perma-
nent members of the Security Council to commence discussions on secu-
rity issues in the nuclear disarmament process, including by giving NNWS
assurances against the use or threat of use of nuclear weapons (para. 5).
It stressed the need of “new eﬀorts to bring the CTBT into force”, and
encouraged NWS to ratify all the protocols to the treaties which estab-
lished nuclear-weapon-free zones (para. 6). Moreover, it also stressed
“the need for greater transparency” in relation to arsenals of nuclear
weapons and disarmament achievements (para. 7). And it further called
for the elimination also of other types of weapons of mass destruction
(para. 8).

   242. The “Five-Point Proposal on Nuclear Disarmament” was reiter-
ated by the UN Secretary-General in two subsequent addresses in the fol-
lowing three years 276. In one of them, before the Security Council
on 24 September 2009, he stressed the need of an “early entry into force”
of the CTBT, and pondered that “disarmament and non-proliferation
must proceed together”; he urged “a divided international community” to
start moving ahead towards achieving “a nuclear-weapon-free world”,
and, at last, he expressed his hope in the forthcoming 2010 NPT Review
Conference 277.
   243. Both the 2000 and the 2010 Review Conferences made an inter-
pretation of nuclear disarmament under Article VI of the NPT as a “pos-
itive disarmament obligation”, in line with the dictum in the ICJ’s
1996 Advisory Opinion of nuclear disarmament in good faith as an obli-

  274 Cf. UN Secretary-General (Ban Ki-moon), Address (at a conference at the

East-West Institute): “The United Nations and Security in a Nuclear-Weapon-Free
World”, UN News Centre, of 24 October 2008, pp. 1-3.
   275 It added that this could be pursued either by an agreement on “a framework of

separate, mutually reinforcing instruments”, or else by negotiating “a nuclear-weapons
convention, backed by a strong system of veriﬁcation, as has long been proposed at the
United Nations” (para. 2).
   276 On two other occasions, namely, during a Security Council Summit on Nuclear

Non-Proliferation on 24 September 2009, and at a Conference organized by the
East-West Institute on 24 October 2011.
   277 UN Secretary-General (Ban Ki-moon), “Opening Remarks to the Security Council

Summit on Nuclear Non-Proliferation and Nuclear Disarmament”, UN News Centre,
of 24 September 2009, pp. 1-2.

160

412    nuclear arms and disarmament (diss. op. cançado trindade)

gation of result 278. The 2010 Review Conference expressed its deep con-
cern that there remained the continued risk for humankind put by the
possibility that nuclear weapons could be used, and the catastrophic
humanitarian consequences that would result therefrom.
   244. The 2010 Review Conference, keeping in mind the 1995 decision
on “Principles and Objectives for Nuclear Non-Proliferation and Disar-
mament” as well as the 2000 agreement on the “13 Practical Steps”,
aﬃrmed the vital importance of the universality of the NPT 279, and,
furthermore, took note of the “Five-Point Proposal on Nuclear Dis-
armament” of the UN Secretary-General, of 2008. For the ﬁrst time
in the present series of Review Conferences, the Final Document of the
2010 Review Conference recognized “the catastrophic humanitarian
consequences that would result from the use of nuclear weapons” 280.
   245. The Final Document welcomed the creation of successive
nuclear-weapon-free zones 281, and, in its conclusions, it endorsed the
“legitimate interest” of NNWS to receive “unequivocal and legally bind-
ing security assurances” from NWS on the matter at issue; it asserted and
recognized that “the total elimination of nuclear weapons is the only
absolute guarantee against the use or threat of use of nuclear weapons” 282.
The aforementioned Final Document reiterated the 2010 Review Confer-
ence’s “deep concern at the catastrophic humanitarian consequences of
any use of nuclear weapons”, and “the need for all States at all times to
comply with applicable international law, including international human-
itarian law” 283. This key message of the 2010 Review Conference trig-
gered the initiative, three years later, of the new series of Conferences on
Humanitarian Impact of Nuclear Weapons (cf. infra).

  246. The “historic acknowledgement” of “the catastrophic humanitar-
ian consequences of any use of nuclear weapons” was duly singled out by
the ICRC, in its statement in the more recent 2015 Review Conference 284;
the ICRC pointed out that that new series of Conferences (2013-2014, in
Oslo, Nayarit and Vienna) have given the international community “a
much clearer grasp” of the eﬀects of nuclear detonations on peoples
around the world. It then warned that, 45 years after the NPT’s entry into
force, “there has been little or no concrete progress” in fulﬁlling the goal

   278 D. H. Joyner, “The Legal Meaning and Implications of Article VI of the Non-

Proliferation Treaty”, Nuclear Weapons and International Law (eds. G. Nystuen, S. Casey-
Maslen and A. G. Bersagel), Cambridge University Press, 2014, pp. 413 and 417.
   279 NPT/CONF.2010/50, Vol. I, pp. 12-14 and 19-20.
   280 Cf. 2010 Review Conference — Final Document, Vol. I, doc. NPT/CONF.2010/50,

of 18 June 2010, p. 12, para. 80.
   281 Cf. ibid., p. 15, para. 99.
   282 Ibid., p. 21, point (i).
   283 Ibid., p. 19, point (v).
   284 ICRC, “Eliminating Nuclear Weapons”, Statement — 2015 Review Conference of

the Parties to the NPT, of 1 May 2015, p. 1.

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413      nuclear arms and disarmament (diss. op. cançado trindade)

of elimination of nuclear weapons. As nuclear weapons remain the only
weapons of mass destruction not prohibited by a treaty, “ﬁlling this gap
is a humanitarian imperative”, as the “immediate risks of intentional or
accidental nuclear detonations” are “too high and the dangers too
real” 285.

   247. The 2015 Review Conference displayed frustration over the very
slow pace of action on nuclear disarmament, in addition to current
nuclear modernization programs and reiteration of dangerous nuclear
strategies, apparently oblivious of the catastrophic humanitarian conse-
quences of nuclear weapons. At the 2015 Review Conference, the Main
Committee I, charged with addressing Article VI of the NPT, stressed the
importance of “the ultimate goal” of elimination of nuclear weapons, so
as to achieve “general and complete disarmament under eﬀective interna-
tional control” 286.

   248. The 2015 Review Conference reaﬃrmed that “the total elimina-
tion of nuclear weapons is the only absolute guarantee against the use or
threat of use of nuclear weapons, including the risk of their unauthorized,
unintentional or accidental detonation” 287. It expressed its “deep con-
cern” that, during the period 2010-2015, the Conference on Disarmament
did not commence negotiations of an instrument on such nuclear disar-
mament 288, and then stressed the “urgency for the Conference on Disar-
mament” to achieve “an internationally legally binding instrument to that
eﬀect”, so as “to assure” NNWS against the use or threat of use of nuclear
weapons by all NWS 289.

  249. After welcoming “the increased and positive interaction with civil
society” during the cycle of Review Conferences, the most recent 2015
Review Conference stated that
        “understandings and concerns pertaining to the catastrophic human-
        itarian consequences of any nuclear weapon detonation underpin and
        should compel urgent eﬀorts by all States leading to a world without
        nuclear weapons. The Conference aﬃrms that, pending the realiza-

  285 ICRC, op. cit. supra note 284, pp. 2-3.
  286 2015 Review Conference — Working Paper of the Chair of Main Committee I,
doc. NPT/CONF.2015/MC.I/WP.1, of 18 May 2015, p. 3, para. 17.
  287 Ibid., p. 5, para. 27.
  288 Ibid., p. 6, para. 35.
  289 Ibid., p. 7, para. 43.

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414    nuclear arms and disarmament (diss. op. cançado trindade)

      tion of this objective, it is in the interest of the very survival of human-
      ity that nuclear weapons never be used again” 290.

      XVIII. The Establishment of Nuclear-Weapon-Free Zones

   250. In addition to the aforementioned NPT Review Conferences, the
opinio juris communis on the illegality of nuclear weapons ﬁnds expression
also in the establishment, over the last half century, of nuclear-weapon-free
zones, which has responded to the needs and aspirations of humankind,
so as to rid the world of the threat of nuclear weapons. The establishment
of those zones has, in eﬀect, given expression to the growing disapproval
of nuclear weapons by the international community as a whole. There
are, in eﬀect, references to nuclear-weapon-free zones in the arguments, in
the written phase of the present proceedings, of the Marshall Islands 291
and of the United Kingdom 292 in the present case.
   251. I originally come from the part of the world, Latin America, which,
together with the Caribbean, form the ﬁrst region of the world to have
prohibited nuclear weapons, and to have proclaimed itself as a
nuclear-weapon-free zone. The pioneering initiative in this domain, of
Latin America and the Caribbean 293, resulted in the adoption of the
1967 Treaty for the Prohibition of Nuclear Weapons in Latin America and
the Caribbean and its two Additional Protocols. Its reach transcended
Latin America and the Caribbean, as evidenced by its two Additional Pro-
tocols 294, and the obligations set forth in its legal regime were wide in scope:
         “The régime established in the Treaty is not merely one of non-
      proliferation: it is a régime of total absence of nuclear weapons, which
      means that such weapons will be prohibited in perpetuity in the ter-
      ritories to which the Treaty applies, regardless of the State under
      whose control these terrible instruments of mass destruction might
      be.” 295

    290 2015 Review Conference — Working Paper of the Chair of Main Committee I,

doc. NPT/CONF.2015/MC.I/WP.1, of 18 May 2015, p. 7, paras. 45-46 (1).
    291 Application instituting proceedings, p. 26, para. 73; and Memorial of the Marshall

Islands, pp. 40, 53 and 56, paras. 84, 117 and 122.
    292 Preliminary Objections of the United Kingdom, p. 2, para. 4.
    293 On the initial moves in the UN to this eﬀect, by Brazil (in 1962) and Mexico (taking

up the leading role from 1963 onwards), cf. United Nations, Las Zonas Libres de Armas
Nucleares en el Siglo XXI, op. cit. infra note 298, pp. 116, 120 and 139.
   294 The ﬁrst one concerning the States internationally responsible for territories located

within the limits of the zone of application of the Treaty, and the second one pertaining to
the nuclear-weapon States.
   295 A. García Robles, “Mesures de désarmement dans des zones particulières : le traité

visant l’interdiction des armes nucléaires en Amérique Latine”, 133 RCADI (1971), p. 103,
and cf. p. 71 [translation by the Registry].

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415      nuclear arms and disarmament (diss. op. cançado trindade)

   252. By the time of the creation of that ﬁrst nuclear-weapon-free zone
by the 1967 Treaty of Tlatelolco, it was pointed out that it came as a
response to humanity’s concern with its own future (given the threat
of nuclear weapons), and in particular with “the survival of
humankind” 296. That initiative 297 was followed by four others of the kind,
in distinct regions of the world, conducive to the adoption of
the 1985 South Paciﬁc (Rarotonga) Nuclear-Free Zone Treaty, the
1995 Southeast Asia (Bangkok) Nuclear-Weapon-Free Zone Treaty,
the 1996 African (Pelindaba) Nuclear Weapon-Free Zone Treaty 298, as
well as the 2006 Central Asian (Semipalatinsk) Nuclear-Weapon-Free
Zone Treaty. Basic considerations of humanity have surely been taken
into account for the establishment of those nuclear-weapon-free zones.
   253. In fact, besides the Treaty of Tlatelolco, also the Rarotonga,
Bangkok, Pelindaba, and Semipalatinsk Treaties purport to extend the
obligations enshrined therein, by means of their respective Protocols, not
only to the States of the regions at issue, but also to nuclear States 299, as
well as States which are internationally responsible, de jure or de facto,
for territories located in the respective regions. The veriﬁcation of compli-
ance with the obligations regularly engages the IAEA 300. Each of the ﬁve
aforementioned treaties (Tlatelolco, Rarotonga, Bangkok, Pelindaba and
Semipalatinsk) creating nuclear-weapon-free zones has distinctive fea-
tures, as to the kinds and extent of obligations and methods of veriﬁca-
tion 301, but they share the common ultimate goal of preserving humankind
from the threat or use of nuclear weapons.

  254. The second nuclear-weapon-free zone, established by the Treaty
of Rarotonga (1985), with its three Protocols, came as a response 302 to
long-sustained regional aspirations, and increasing frustration of the pop-
ulations of the countries of the South Paciﬁc with incursions of NWS in
the region 303. The Rarotonga Treaty encouraged the negotiation of a

   296 Op. cit. supra note 295, p. 99, and cf. p. 102.
   297 Which was originally prompted by a reaction to the Cuban Missile Crisis of 1962.
   298 United Nations, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y./

Geneva, UN-OPANAL/UNIDIR, 1997, pp. 9, 25, 39 and 153.
   299 Those Protocols contain the undertaking not only not to use nuclear weapons, but

also not to threaten their use; cf. M. Roscini, op. cit. infra note 307, pp. 617-618.
   300 The Treaty of Tlatelolco has in addition counted on its own regional organism to

that end, the Agency for the Prohibition of Nuclear Weapons in Latin America and the
Caribbean (OPANAL).
   301 Cf., in general, M. Roscini, Le Zone Denuclearizzate, Turin, Giappichelli Ed., 2003,

pp. 1-410 ; J. Goldblat, “Zones exemptes d’armes nucléaires : une vue d’ensemble”, Le
droit international des armes nucléaires (Journée d’études, Ed. S. Sur), Paris, Pedone, 1998,
pp. 35-55.
   302 Upon the initiative of Australia.
   303 M. Hamel-Green, “The South Paciﬁc — The Treaty of Rarotonga”, Nuclear

Weapons-Free Zones (ed. R. Thakur), London/N.Y., MacMillan/St. Martin’s Press, 1998,
p. 59, and cf. p. 62.

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416      nuclear arms and disarmament (diss. op. cançado trindade)

similar zone, — by means of the 1995 Bangkok Treaty, — in the neigh-
bouring region of Southeast Asia, and conﬁrmed the “continued rele-
vance of zonal approaches” to the goal of disarmament and the safeguard
of humankind from the menace of nuclear weapons 304.

   255. The third of those treaties, that of Bangkok, of 1995 (with its Pro-
tocol), was prompted by the initiative of the Association of
South-East Asian Nations (ASEAN) to insulate the region from the poli-
cies and rivalries of the nuclear powers. The Bangkok Treaty, besides
covering the land territories of all ten Southeast Asian States, is the ﬁrst
treaty of the kind also to encompass their territorial sea, 200-mile exclu-
sive economic zone and continental shelf 305. The fourth such treaty, that
of Pelindaba, of 1996, in its turn, was prompted by the continent’s reac-
tion to nuclear tests in the region (as from the French nuclear tests in the
Sahara in 1961), and the aspiration — deeply-rooted in African think-
ing — to keep nuclear weapons out of the region 306. The Pelindaba Treaty
(with its three Protocols) appears to have served the purpose to eradicate
nuclear weapons from the African continent.
   256. The ﬁfth such treaty, that of Semipalatinsk, of 2006, contains, like
the other treaties creating nuclear-weapon-free zones (supra), the basic
prohibitions to manufacture, acquire, possess, station or control nuclear
explosive devices within the zones 307. The ﬁve treaties at issue, though
containing loopholes (e.g., with regard to the transit of nuclear
weapons) 308, have as common denominator the practical value of arrange-
ments that transcend the non-proliferation of nuclear weapons 309.

  257. Each of the ﬁve treaties (of Tlatelolco, Rarotonga, Bangkok,
Pelindaba and Semipalatinsk) reﬂects the characteristics of each of the
ﬁve regions, and they all pursue the same cause. The establishment of the
nuclear-weapon-free zones has been fulﬁlling the needs and aspirations of

   304  Op. cit. supra note 303, pp. 71 and 77.
   305  This extended territorial scope has generated resistance on the part of
nuclear-weapon States to accept its present form; A. Acharya and S. Ogunbanwo, “The
Nuclear-Weapon-Free Zones in South-East Asia and Africa”, Armaments, Disarmament
and International Security — SIPRI Yearbook (1998), pp. 444 and 448.
    306 United Nations, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra

note 298, pp. 60-61; and cf. J. O. Ihonvbere, “Africa — The Treaty of Pelindaba”, Nuclear-
Weapons-Free Zones, op. cit. supra note 303, pp. 98-99 and 109. And, for a general study,
cf. O. Adeniji, The Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone, Geneva,
UNIDIR, 2002, pp. 1-169.
    307 M. Roscini, “Something Old, Something New: The 2006 Semipalatinsk Treaty on

a Nuclear Weapon-Free Zone in Central Asia”, 7 Chinese Journal of International Law
(2008), p. 597.
    308 As to their shortcomings, cf., e.g., J. Goldblat, “The Nuclear Non-Proliferation

Régime: Assessment and Prospects”, 256, RCADI (1995), pp. 137-138; M. Roscini, op. cit.
supra note 307, pp. 603-604.
    309 J. Enkhsaikhan, “Nuclear-Weapon-Free Zones: Prospects and Problems”, 20 Disar-

mament — Periodic Review by the United Nations (1997), note 1, p. 74.

165

417    nuclear arms and disarmament (diss. op. cançado trindade)

peoples living under the fear of nuclear victimization 310. Their purpose is
being served, also in withholding or containing nuclear ambitions, to the
ultimate beneﬁt of humankind as a whole.
   258. Nowadays, the ﬁve aforementioned nuclear-weapon-free zones
are ﬁrmly established in densely populated areas, covering most (almost
all) of the landmass of the southern hemisphere land areas (while exclud-
ing most sea areas) 311. The adoption of the 1967 Tlatelolco Treaty,
the 1985 Rarotonga Treaty, the 1995 Bangkok Treaty, the 1996 Pelind-
aba Treaty, and the 2006 Semipalatinsk Treaty, have disclosed the short-
comings and artiﬁciality of the posture of the so-called political
“realists” 312, which insisted on the suicidal strategy of nuclear “deter-
rence”, in their characteristic subservience to power politics.
   259. The substantial Final Report of 1999 of the UN Disarmament
Commission underlined the relevance of nuclear-weapon-free zones and
of their contribution to the achievement of nuclear disarmament 313,
“expressing and promoting common values” and constituting “important
complementary” instruments to the NPT and the “international regime
for the prohibition” of any nuclear-weapon explosions 314. Drawing atten-
tion to the central role of the United Nations in the ﬁeld of disarma-
ment 315, the aforementioned Report added:

         “Nuclear-weapon-free zones have ceased to be exceptional in the
      global strategic environment. To date, 107 States have signed or
      become parties to treaties establishing existing nuclear-weapon-free
      zones. With the addition of Antarctica, which was demilitarized pur-
      suant to the Antarctic Treaty, nuclear-weapon-free zones now cover
      more than 50 per cent of the Earth’s land mass
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         The establishment of further nuclear-weapon-free zones reaﬃrms
      the commitment of the States that belong to such zones to honour
      their legal obligations deriving from other international instruments

   310 Cf., e.g., H. Fujita, “The Changing Role of International Law in the Nuclear Age:

from Freedom of the High Seas to Nuclear-Free Zones”, Humanitarian Law of Armed
Conflict: Challenges Ahead —Essays in Honour of F. Kalshoven (eds. A. J. M. Delissen and
G. J. Tanja), Dordrecht, Nijhoﬀ, 1991, p. 350, and cf. pp. 327-349.
   311 J. Prawitz, “Nuclear-Weapon-Free Zones: Their Added Value in a Strengthened

International Safeguards System”, Tightening the Reins — Towards a Strengthened Inter-
national Nuclear Safeguards System (eds. E. Häckel and G. Stein), Berlin/Heidelberg,
Springer-Verlag, 2000, p. 166.
   312 Cf. United Nations, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit.

supra note 298, pp. 27, 33-38 and 134.
   313 UN, Report of the Disarmament Commission — General Assembly Official Records

(Fifty-Fourth Session, supplement No. 42), UN doc. A/54/42, of 6 May 1999, Annex I,
pp. 6-7, paras. 1, 6 and 9.
   314 Ibid., p. 7, paras. 10-11 and 13.
   315 Ibid., Annex II, p. 11, third preambular paragraph.

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418       nuclear arms and disarmament (diss. op. cançado trindade)

         in force in the area of nuclear non-proliferation and disarmament to
         which they are parties.” 316
   260. Moreover, the 1999 Final Report of the UN Disarmament Com-
mission further stated that, for their part, NWS should fully comply with
their obligations, under the ratiﬁed protocols to the treaties on
nuclear-weapon-free zones, “not to use or threaten to use nuclear
weapons” 317. It went on to encourage Member States of those zones “to
share experiences” with States of other regions, so as “to establish further
nuclear-weapon-free zones” 318. It concluded that the international com-
munity, by means of “the creation of nuclear-weapon-free zones around
the globe”, should aim at “general and complete disarmament under
strict and eﬀective international control, so that future generations can
live in a more stable and peaceful atmosphere” 319.

   261. To the establishment of aforementioned ﬁve nuclear-weapon-free
zones other initiatives against nuclear weapons are to be added, such as
the prohibitions of placement of nuclear weapons, and other kinds of
weapons of mass destruction, in outer space, on the sea-bed, on the ocean
ﬂoor and in the subsoil beyond the outer limit of the territorial sea-bed
zone, — “denuclearized” by the Treaties of Antarctica (1959), Outer
Space (1967) and the Deep Sea Bed (1971), respectively, to which can be
added the Treaty on the Moon and Other Celestial Bodies (1979), estab-
lished a complete demilitarization thereon 320.

   262. The fact that the international community counts today on ﬁve
nuclear-weapon-free zones, in relation to which States that possess nuclear
weapons do have a particular responsibility, reveals an undeniable advance
of right reason, of the recta ratio in the foundations of contemporary
international law. Moreover, the initiative of nuclear-weapon-free zones
keeps on clearly gaining ground. In recent years, proposals are being
examined for the setting up of new denuclearized zones of the kind 321, as
well as of the so-called single-State zone (e.g., Mongolia) 322. That initiative

   316  Op. cit. supra note 313, Annex I, p. 7, para. 5; and p. 8, para. 28.
   317  Ibid., p. 9, para. 36.
    318 Ibid., p. 10, para. 41.
    319 Ibid., para. 45.
    320 Cf. G. Venturini, “Control and Veriﬁcation of Multilateral Treaties on Disarma-

ment and Non-Proliferation of Weapons of Mass Destruction”, 17 University of California
Davis Journal of International Law and Policy (2011), pp. 359-360.
    321 E.g., in Central and Eastern Europe, in the Middle East, in Central and North-East

and South Asia, and in the whole of the southern hemisphere.
    322 Cf. A. Acharya and S. Ogunbanwo, op. cit. supra note 305, p. 443; J. Enkh-

saikhan, op. cit. supra note 309, pp. 79-80. Mongolia in eﬀect declared its territory as
a nuclear-weapon-free zone (in 1992), and in February 2000 adopted national legis-
lation deﬁning its status as a nuclear-weapon-free State. This was acknowledged by
UN General Assembly resolution 55/33S of 20 November 2000.

167

419   nuclear arms and disarmament (diss. op. cançado trindade)

further reﬂects the increasing disapproval, by the international community
as a whole, of nuclear weapons, which, in view of their hugely destructive
capability, constitute an aﬀront to right reason (recta ratio).

           XIX. Conferences on the Humanitarian Impact
                 of Nuclear Weapons (2013-2014)

   263. In the course of the proceedings in the present case of Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament, several references were made to the more
recent series of Conferences on the Humanitarian Impact of Nuclear
Weapons (2013-2014), and in particular to the statement made therein (in
the second of those conferences) by the Marshall Islands, asserting that
NWS should fulﬁl their obligation, “long overdue”, of negotiation to
achieve complete nuclear disarmament (cf. infra). The Marshall Islands
promptly referred to its own statement in the Nayarit Conference (2014)
in its Memorial in the cas d’espèce, as well as in its oral arguments before
the ICJ.
   264. In eﬀect, the Conferences on the Humanitarian Impact of Nuclear
Weapons (a series initiated in 2013) were intended to provide a forum for
dialogue on, and a better understanding of, the humanitarian conse-
quences of use of nuclear weapons for human beings, societies, and the
environment, rather than a substitute of bilateral and multilateral fora for
disarmament negotiations. This forum for dialogue and better under-
standing of the matter has counted on three Conferences to date, held,
respectively, in Oslo in March 2013, in Nayarit in February 2014, and in
Vienna in December 2014.
   265. This recent series of Conferences has drawn attention to the
humanitarian eﬀects of nuclear weapons, restoring the central position of
the concern for human beings and peoples. It has thus stressed the impor-
tance of the human dimension of the whole matter, and has endeavoured
to awaken the conscience of the whole international community as well as
to enhance the needed humanitarian co-ordination in the present domain.
May I next proceed to a survey of their work and results so far.

  1. First Conference on the Humanitarian Impact of Nuclear Weapons
   266. The First Conference on the Humanitarian Impact of Nuclear
Weapons took place in Oslo, on 4-5 March 2013, having counted on the
participation of delegations representing 127 States, United Nations agen-
cies, the International Committee of the Red Cross (ICRC), the Red Cross
and the Red Crescent movement, international organizations, and civil
society entities. It should not pass unnoticed that only two of the NWS,

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420     nuclear arms and disarmament (diss. op. cançado trindade)

India and Pakistan, were present at this Conference (and only India made
a statement) 323. On the other hand, neither the Marshall Islands, nor the
permanent members of the UN Security Council, attended it.
   267. The Oslo Conference addressed three key issues, namely: (a) the
immediate human impact of a nuclear weapon detonation; (b) the wider
economic, developmental and environmental consequences of a nuclear
weapon detonation; and (c) the preparedness of States, international
organizations, civil society and the general public to deal with the predict-
able humanitarian consequences that would follow from a nuclear
weapon detonation. A wide range of experts made presentations during
the Conference.
   268. Attention was drawn, e.g., to the nuclear testing’s impact during
the Cold-War period, in particular to the detonation of not less than
456 nuclear bombs in the four decades (between 1949 and 1989) in the
testing ground of Semipalatinsk, in eastern Kazakhstan. It was reported
(by UNDP) that, according to the Kazakh authorities, up to 1.5 million
people were aﬀected by fall-out from the blasts at Semipalatinsk; the
nuclear test site was shut down in mid-1991. Other aspects were exam-
ined, all from a humanitarian outlook 324. References were made, e.g., to
General Assembly resolutions (such as resolution 63/279, of 24 April
2009), on humanitarian rehabilitation of the region. Such a humanitarian
approach proved necessary, as the “historical experience from the use and
testing of nuclear weapons has demonstrated their devastating immediate
and long-term eﬀects” 325.

   269. The key conclusions of the Oslo Conference, as highlighted by
Norway’s Minister of Foreign Aﬀairs in his closing statement 326, can be
summarized as follows. First, it is unlikely that any State or international
body (such as UN relief agencies and the ICRC) could address the imme-
diate humanitarian emergency caused by a nuclear weapon detonation in
an adequate manner and provide suﬃcient assistance to those aﬀected.
Thus, the ICRC called for the abolition of nuclear weapons as the only
eﬀective preventive measure, and several participating States stressed that
elimination of nuclear weapons is the only way to prevent their use; some
States called for a ban on those weapons.

  323Https://www.regjeringen.no/globalassets/upload/ud/vedlegg/hum/hum_india.pdf.
  324For accounts of the work of the 2013 Oslo Conference, cf., e.g., Viewing Nuclear
Weapons through a Humanitarian Lens (eds. J. Borrie and T. Caughley), Geneva/N.Y.,
UN/UNIDIR, 2013, pp. 81-82, 87, 90-91, 93-96, 99, 105-108 and 115-116.
  325 Norway/Ministry of Foreign Aﬀairs, Chair’s Summary — Humanitarian Impact of

Nuclear Weapons, Oslo, 5 March 2013, p. 2.
  326 Https://www.regjeringen.no/en/aktuelt/nuclear_summary/id716343/.

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421    nuclear arms and disarmament (diss. op. cançado trindade)

   270. Secondly, the historical experience from the use and testing of
nuclear weapons has demonstrated their devastating immediate and
long-term eﬀects. While the international scenario and circumstances sur-
rounding it have changed, the destructive potential of nuclear weapons
remains. And thirdly, the eﬀects of a nuclear weapon detonation, irre-
spective of its cause, will not be constrained by national borders, and will
aﬀect States and peoples in signiﬁcant ways, in a trans-frontier dimen-
sion, regionally as well as globally.

 2. Second Conference on the Humanitarian Impact of Nuclear Weapons
   271. The Second Conference on the Humanitarian Impact of Nuclear
Weapons took place in Nayarit, Mexico, on 13-14 February 2014, having
counted on the participation of delegations representing 146 States. The
Marshall Islands, India and Pakistan attended it, whereas the United King-
dom did not. In addition to States, other participants included the ICRC,
the Red Cross and the Red Crescent movement, international organiza-
tions, and civil society entities. During the Nayarit Conference, the dele-
gate of the Marshall Islands stated that NWS States were failing to fulﬁl
their obligations, under Article VI of the NPT and customary interna-
tional law, to commence and conclude multilateral negotiations on
nuclear disarmament; in his words:
      “the Marshall Islands is convinced that multilateral negotiations on
      achieving and sustaining a world free of nuclear weapons are long
      overdue. Indeed we believe that States possessing nuclear arsenals are
      failing to fulﬁl their legal obligations in this regard. Immediate com-
      mencement and conclusion of such negotiations is required by legal
      obligation of nuclear disarmament resting upon each and every State
      under Article VI of the Non-Proliferation Treaty and customary
      international law. It also would achieve the objective of nuclear dis-
      armament long and consistently set by the United Nations, and fulﬁl
      our responsibilities to present and future generations while honouring
      the past ones.” 327

   272. Earlier on, the Minister of Foreign Aﬀairs of the Marshall Islands
stated, at the UN High-Level Meeting on Nuclear Disarmament,
on 26 September 2013, that the Marshall Islands “has a unique and com-
pelling reason” to urge nuclear disarmament, namely,
        “The Marshall Islands, during its time as a UN Trust Territory,
      experienced 67 large-scale tests of nuclear weapons. At the time of

   327 Marshall Islands’ Statement, Second Conference on the Humanitarian Impact of

Nuclear Weapons, Nayarit, Mexico, 13-14 February 2014 (http://www.reachingcriticalwill.
org/images/documents/Disarmament-fora/nayarit-2014/statements/MarshallIslands.pdf).
The text is also quoted by the Marshall Islands in its Memorial in Marshall Islands v.
United Kingdom, Annex 72.

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422      nuclear arms and disarmament (diss. op. cançado trindade)

        testing, and at every possible occasion in the intervening years, the
        Marshall Islands has informed UN Members of the devastating
        impacts of these tests — of the deliberate use of our people as unwill-
        ing scientiﬁc experiments, of ongoing health impacts inherited through
        generations, of our displaced populations who still live in exile or who
        were resettled under unsafe circumstances, and then had to be
        removed. Even today, science remains a moving target and our exiled
        local communities are still struggling with resettlement

         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
           Perhaps we [the Marshallese] have one of the most important sto-
        ries to tell regarding the need to avert the use of nuclear weapons, and
        a compelling story to spur greater eﬀorts for nuclear disarmament.”
        (Pp. 1-2.) 328
   273. The Marshall Islands’ statement in the 2014 Nayarit Conference
was thus one of a few statements in which the Marshall Islands has arti-
culated its claim, whereon they rely in the cas d’espèce, inter alia, to sub-
stantiate the existence of a dispute, including with the United Kingdom,
which was not present at the Conference 329. The Nayarit Conference par-
ticipants also heard the poignant testimonies of ﬁve Hibakusha — survi-
vors of the atomic bombings of Hiroshima and Nagasaki — who
presented their accounts of the overwhelming devastation inﬂicted on
those cities and their inhabitants by the atomic blasts (including the vic-
tims’ burning alive, and carbonized or vaporized, as well as the long-term
eﬀects of radiation, killing survivors over seven decades).

  274. They stressed the “moral imperative” of the abolition of nuclear
weapons, as humanity and nuclear weapons cannot co-exist. A group of
delegations of no less than 20 States called expressly for a ban of nuclear
weapons, already long overdue; this was the sword of Damocles hanging
over everyone’s heads. The “mere existence” of nuclear weapons was
regarded as “absurd”; attention was also drawn to the 2013 UN Gen-

  328 Http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf. And the

Marshall Islands’ Minister of Foreign Aﬀairs (Ph. Muller) added that:
           “It should be our collective goal as the United Nations to not only stop the spread
        of nuclear weapons, but also to pursue the peace and security of a world without
        them. Further, the Republic of the Marshall Islands has recently ratiﬁed the Compre-
        hensive Test Ban Treaty and urges other Member States to work towards bringing
        this important agreement into force.
           The Marshall Islands is not the only nation in the Paciﬁc to be touched by the
        devastation of nuclear weapon testing. (. . .) We express again our eventual aspi-
        rations to join with our Paciﬁc neighbours in supporting a Paciﬁc free of nuclear
        weapons in a manner consistent with international security.” (Pp. 1-2.)

  329   Memorial of the Marshall Islands, para. 99.

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423    nuclear arms and disarmament (diss. op. cançado trindade)

eral Assembly High-Level Meeting on Disarmament, and to the obliga-
tions under international law, including those deriving from the NPT as
well as common Article 1 of the Geneva Conventions on IHL 330.

   275. Furthermore, an association of over 60 entities of the civil society,
from more than 50 countries, stated 331 that their own engagement was
essential, as responsibilities fell on everyone to prevent the use of nuclear
weapons; and prevention required the prohibition and ban of nuclear
weapons, in the same way as those of biological and chemical weapons,
landmines, and cluster munitions. Both the association, and the Hibaku-
sha, condemned the dangerous strategy of nuclear “deterrence”.

   276. The 2014 Nayarit Conference’s conclusions, building on the con-
clusions of the previous Oslo Conference, can be summarized as follows.
First, the immediate and long-term eﬀects of a single nuclear weapon
detonation, let alone a nuclear exchange, would be catastrophic. The
mere existence of nuclear weapons generates great risks, because the mili-
tary doctrines of the NWS envisage preparations for the deliberate use of
nuclear weapons. Nuclear weapons could be detonated by accident, mis-
calculation, or deliberately.

   277. Delegations of over 50 States from every region of the world
made statements unequivocally calling for the total elimination of nuclear
weapons and the achievement of a world free of nuclear weapons. At
least 20 delegations of participating States in the Conference (supra)
expressed the view that the way forward would be a ban on nuclear weap-
ons. Others were equally clear in their calls for a convention on the elim-
ination of nuclear weapons or a new legally binding instrument 332.

  278. Secondly, some delegations pointed out the security implications
of nuclear weapons, or else expressed skepticism about the possibility of
banning nuclear weapons as such. There were those who favoured a
“step-by-step” approach to nuclear disarmament (within the framework
   330 Mexico/Gobierno de la República, Chair’s Summary — Second Conference on the

Humanitarian Impact of Nuclear Weapons, Mexico, 14 February 2014, pp. 2-3.
   331 On behalf of the International Campaign to Abolish Nuclear Weapons (ICAN), a

coalition of over 350 entities in 90 countries.
   332 For example, for its part, India favoured a step-by-step approach towards the elimi-

nation of nuclear weapons, ultimately leading to “a universal, non-discriminatory conven-
tion on prohibition and elimination of nuclear weapons”; cf. www.reachingcriticalwill.org/
images/documents/Disarmament-fora/nayarit-2014/statements/India.pdf.

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424    nuclear arms and disarmament (diss. op. cançado trindade)

of the NPT Action Plan), and called for the participation of NWS in this
process. For their part, the nuclear-weapon-free States, in their majority,
were however of the view that the step-by-step approach had failed to
achieve its goal; they thus called for a new approach to nuclear disarma-
ment.

   279. Thirdly, for the Chairman of the Conference, a ban on nuclear
weapons would be the ﬁrst step towards their elimination; such a ban
would also rectify the anomaly that nuclear weapons are the only weap-
ons of mass destruction that are not subject to an explicit legal prohibi-
tion. He added that achieving a world free of nuclear weapons is consistent
with States’ obligations under international law, including under the NPT
and common Article 1 to the Geneva Conventions on IHL. He at last
called for the development of new international standards on nuclear
weapons, including a legally binding instrument, to be concluded by
the seventieth anniversary of the atomic bombings of Hiroshima and
Nagasaki 333.

  3. Third Conference on the Humanitarian Impact of Nuclear Weapons
  280. The third Conference on the Humanitarian Impact of Nuclear
Weapons took place in Vienna, on 8-9 December 2014, having carried
forward the momentum created by the previous Conference in Mexico. It
counted on the participation of delegations of 158 States, as well as the
UN, the ICRC, the Red Cross and Red Crescent movement, civil society
entities and representatives of the academic world. For the ﬁrst time, of
the NWS, the United Kingdom attended the Conference; delegates from
India, Pakistan, and the Marshall Islands were present as well.

  281. Once again, the Conference participants heard the testimonies of
survivors, the Hibakusha. Speaking of the “hell on earth” experienced in
Hiroshima and Nagasaki; the “indiscriminate massacre of the atomic
bombing” showed “the illegality and ultimate evil of nuclear weapons” 334.
In its statement, the Marshall Islands, addressing the testing in the region
of 67 atomic and hydrogen bombs, between 1946 and 1958 — the stron-
gest one having been the Bravo test (of 1 March 1954) of a hydrogen
bomb, 1000 times more powerful than the atomic bomb dropped over
Hiroshima — referred to their harmful impacts, such as the birth of
“monster-like babies”, the continuous suﬀering from “thyroid cancer,

   333 Cf. http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/nayarit-

2014/chairs-summary.pdf.
   334 Cf. Vienna Conference on the Humanitarian Impact of Nuclear Weapons

(8-9 December 2014), Vienna, Austria’s Federal Ministry for Europe, Integration and
Foreign Aﬀairs, 2015, p. 19.

173

425    nuclear arms and disarmament (diss. op. cançado trindade)

liver cancer and all types of radiogenic cancerous illnesses”, extending
over the years 335.

   282. For its part, the ICRC stated that nuclear weapons ignore
the principle of proportionality, and stand in breach of IHL (both
conventional and customary) by causing unnecessary suﬀering to civil-
ians; it expressed “signiﬁcant concerns about the eventual spread of radi-
ation to civilian areas and the radiological contamination of the
environment” and everyone 336. The ICRC further observed that, after
“decades of focusing on nuclear weapons primarily in technical-military
terms and as symbols of power”, a fundamental and reassuring change
has occurred, as debates on the matter now shift attention to what those
weapons “would mean for people and the environment, indeed for
humanity” 337.

   283. The UN Secretary-General (Ban Ki-moon) sent a statement, read
at the Conference, wherein he condemned expenditures in the moderniza-
tion of weapons of mass destruction (instead of meeting the challenges of
poverty and climate change). Recalling that the obligation of nuclear dis-
armament was one of both conventional and customary international
law, he further condemned the strategy of nuclear “deterrence”; in his
own words,

         “Upholding doctrines of nuclear deterrence does not counter pro-
      liferation, but it makes the weapons more desirable. Growing ranks
      of nuclear-armed States does not ensure global stability, but instead
      undermines it. (. . .) The more we understand about the humanitarian
      impacts, the more it becomes clear that we must pursue disarmament
      as an urgent imperative.” 338

   284. The Vienna Conference contributed to a deeper understanding of
the consequences and risks of a nuclear detonation, having focused to a
larger extent on the legal framework (and gaps therein) with regard to
nuclear weapons 339. It was reckoned that the impact of nuclear weapons
   335 Cf. Vienna Conference on the Humanitarian Impact of Nuclear Weapons

(8-9 December 2014), Vienna, Austria’s Federal Ministry for Europe, Integration and
Foreign Aﬀairs, 2015, p. 34.
   336 Ibid., p. 58.
   337 Ibid., p. 17.
   338 Statement reproduced ibid., p. 16.
   339 Cf. ibid. pp. 1-88.

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426   nuclear arms and disarmament (diss. op. cançado trindade)

detonation, irrespective of the cause, would go well beyond national bor-
ders, and could have regional and even global consequences, causing
destruction, death, diseases and displacement on a very large scale, as
well as profound and long-term damage to the environment, climate,
human health and well-being, socioeconomic development and social
order. They could, in sum, threaten the very survival of humankind. It
was acknowledged that the scope, scale and interrelationship of the
humanitarian consequences caused by nuclear weapon detonation are
catastrophic, and more complex than commonly understood; these conse-
quences can be large scale and potentially irreversible.

  285. States expressed various views regarding the ways and means of
advancing the nuclear disarmament agenda. The delegations of 29 States
called for negotiations of a legally-binding instrument to prohibit or ban
nuclear weapons. A number of delegations considered that the inability
to make progress on any particular step was no reason not to pursue
negotiations in good faith on other eﬀective measures to achieve and
maintain a nuclear-weapon-free world. Such steps have been taken very
eﬀectively in regional contexts in the past, as evidenced by
nuclear-weapon-free zones.

   286. As the general report of the Vienna Conference observed, the
three Conferences on the Humanitarian Impact of Nuclear Weapons (of
Oslo, Nayarit and then Vienna), have contributed to a “deeper under-
standing” of the “actual risks” posed by nuclear weapons, and the
“unspeakable suﬀering”, devastating eﬀects, and “catastrophic humani-
tarian consequences” caused by their use. As “nuclear deterrence entails
preparing for nuclear war, the risk of nuclear weapon use is real”. (. . .)
The only assurance against the risk of a nuclear weapon detonation is the
total elimination of nuclear weapons”, in “the interest of the very survival
of humanity”; hence the importance of Article VI of the NPT, and of the
entry into force of the CTBT 340.

  287. The 2014 Vienna Conference’s conclusions can be summarized as
follows. First, the use and testing of nuclear weapons have demonstrated
their devastating immediate, mid- and long-term eﬀects. Nuclear testing

   340 Cf. Vienna Conference on the Humanitarian Impact of Nuclear Weapons

(8-9 December 2014), Vienna, Austria’s Federal Ministry for Europe, Integration and
Foreign Aﬀairs, 2015, pp. 5-7.

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428   nuclear arms and disarmament (diss. op. cançado trindade)

weapons are far more destructive. In any case, international environmen-
tal law remains applicable in armed conﬂict and can pertain to nuclear
weapons, even if not speciﬁcally regulating these latter. Likewise, interna-
tional health regulations would cover eﬀects of nuclear weapons. In the
light of the new evidence produced in those two years (2013-2014) about
the humanitarian impact of nuclear weapons, it is very doubtful whether
such weapons could ever be used in conformity with IHL

                 4. Aftermath: The “Humanitarian Pledge”
  292. At the 2014 Vienna Conference, although a handful of States
expressed scepticism about the eﬀectiveness of a ban on nuclear weapons,
the overwhelming majority of NPT States parties expected the forthcom-
ing 2015 NPT Review Conference to take stock of all relevant develop-
ments, including the outcomes of the Conferences on the Humanitarian
Impact of Nuclear Weapons (supra), and determine the next steps for the
achievement and maintenance of a nuclear-weapon-free world. At the end
of the Vienna Conference, the host State, Austria, presented a “Pledge”
calling upon States parties to the NPT to renew their commitment to the
urgent and full implementation of existing obligations under Article VI,
and to this end, to identify and pursue eﬀective measures to ﬁll the legal
gap for the prohibition and elimination of nuclear weapons 341.

   293. The Pledge further called upon NWS to take concrete interim
measures to reduce the risk of nuclear weapons detonations, including by
diminishing the role of nuclear weapons in military doctrines. The Pledge
also recognized that: (a) the rights and needs of the victims of nuclear
weapon use and testing have not yet been adequately addressed; (b) all
States share the responsibility to prevent any use of nuclear weapons; and
(c) the consequences of nuclear weapons use raise profound moral
and ethical questions going beyond debates about the legality of these
weapons.

   341 Http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abrues-

tung/-HINW14/HINW14Vienna_Pledge _Document.pdf. The Pledge only refers to States’
obligations under the NPT and makes no mention of customary international law.

177

429    nuclear arms and disarmament (diss. op. cançado trindade)

  294. Shortly before the Vienna Conference, 66 States had already
endorsed the Pledge; by the end of the Conference, 107 States had
endorsed it, thus “internationalizing” it and naming it at the end as the
“Humanitarian Pledge” 342. On 7 December 2015, the UN General Assem-
bly adopted the substance of the Humanitarian Pledge in the form of its
resolution 70/48. As of April 2016, 127 States have formally endorsed the
Humanitarian Pledge; unsurprisingly, none of the NWS has done so.

   295. Recent endeavours, such as the ones just reviewed of the Confer-
ences on the Humanitarian Impact of Nuclear Weapons have been rightly
drawing attention to the grave humanitarian consequences of nuclear
weapons detonations. The reframing of the whole matter in a people-
centred outlook appears to me particularly lucid, and necessary, keeping
in mind the unfoundedness of the strategy of “deterrence” and the
catastrophic consequences of the use of nuclear weapons. The “step-by-
step” approach, pursued by the NWS in respect to the obligation under
Article VI of the NPT, appears essentially State-centric, having led
to an apparent standstill or deadlock.

   296. The obligation of nuclear disarmament being one of result, the
“step-by-step” approach cannot be extended indeﬁnitely in time, with its
insistence on the maintenance of the nuclear sword of Damocles. The
“step-by-step” approach has produced no signiﬁcantly concrete results to
date, seeming to make abstraction of the numerous pronouncements of
the United Nations upholding the obligation of nuclear disarmament
(cf. supra). After all, the absolute prohibition of nuclear weapons, —
which is multifaceted 343, is one of jus cogens (cf. supra). Such weapons, as
the Conferences on the Humanitarian Impact of Nuclear Weapons have
evidenced, are essentially inhumane, rendering the strategy of “deter-
rence” unfounded and unsustainable (cf. supra).

  297. Ever since those Conferences (2013-2014), there has been a ten-
dency (in 2014-2016) of slight reduction of nuclear warheads 344, though
NWS have kept on modernizing their respective nuclear armament pro-
grams, in an indication that nuclear weapons are likely to remain in the

   342 Http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abrues-

tung/-HINW14/HINW14.
   343 Encompassing measures relating to any use, threat of use, development, production,

acquisition, possession, stockpiling and transfer of nuclear weapons.
   344 From around 16,300 nuclear warheads in 2014 to 15,850 in 2015, and to 15,395 in

early 2016.

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430   nuclear arms and disarmament (diss. op. cançado trindade)

foreseeable future 345. Yet, the growing awareness of the humanitarian
impact of nuclear weapons has raised the question of the possibility of
developing “a deontological position according to which the uniquely
inhumane suﬀering that nuclear weapons inﬂict on their victims makes it
inherently wrongful to use them” 346.

   298. Tempus fugit. There remains a long way to go to achieve a
nuclear-weapon-free world. The United Nations itself has been drawing
attention to the urgency of nuclear disarmament. It has done so time and
time again, and, quite recently, in the convocation in October 2015, of a
new Open-Ended Working Group (OEWG), as a subsidiary body of the
UN General Assembly, to address concrete and eﬀective legal measures
to attain and maintain a world without nuclear weapons 347. It draws
attention therein to the importance of multilateralism, to the relevance of
“inclusiveness” (participation of all UN Member States) and of the con-
tribution, in addition to that of States, also of international organiza-
tions, of entities of the civil society, and of the academia 348. And it
reaﬃrms “the urgency of securing substantive progress in multilateral
nuclear disarmament negotiations”, in order “to attain and maintain a
world without nuclear weapons” 349.

   299. It should not pass unnoticed that all the initiatives that I have just
reviewed in the present dissenting opinion (NPT Review Conferences, the
establishment of nuclear-weapon-free zones, and the Conferences on
Humanitarian Impact of Nuclear Weapons), referred to by the Contend-
ing Parties in the course of the proceedings before the ICJ in the present
case of Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament, have gone beyond the
inter-State outlook. In my perception, there is great need, in the present
domain, to keep on looking beyond States, so as to behold peoples’ and
humankind’s quest for survival in our times.

  XX. Final Considerations: OPINIO JURIS COMMUNIS Emanating
             from Conscience (RECTA RATIO), Well
                       Above the “Will”

  300. Nuclear weapons, as from their conception, have been associated
with overwhelming destruction. It may be recalled that the ﬁrst atomic
bombs were fabricated in an epoch of destruction and devastation — the
   345 Cf. SIPRI Yearbook 2016: Armaments, Disarmament and International Security,

Stockholm-Solna, SIPRI, 2016, Chap. 16, pp. 609-667.
   346 ILPI, Evidence of Catastrophe — A Summary of the Facts Presented at the Three

Conferences on the Humanitarian Impact of Nuclear Weapons, Oslo, ILPI, 2015, p. 15.
   347 UN General Assembly doc. A/C.1/70/L.13/Rev.1, of 29 October 2015, pp. 1-3.
   348 Ibid., Preamble, paras. 8 and 14-15.
   349 Ibid., operative part, para. 2.

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431      nuclear arms and disarmament (diss. op. cançado trindade)

Second World War — of the abominable “total war”, in ﬂagrant breach
of IHL and of the ILHR 350. The fabrication of nuclear weapons, fol-
lowed by their use, made abstraction of the fundamental principles of
international law, moving the world into lawlessness in the current nuclear
age. The strategy of “deterrence”, in a “dialectics of suspicion”, leads to
an unforeseeable outcome, amidst complete destruction. Hence the
utmost importance of negotiations conducive to general disarmament,
which — as warned by Raymond Aron [already] in the early 1960s — had
“never been taken seriously” by the superpowers 351.

  301. Last but not least, may I come back to a key point which I have
dwelt upon in the present dissenting opinion pertaining to the opinio juris
communis as to the obligation of nuclear disarmament (cf. Part XVI,
supra). In the evolving law of nations, basic considerations of humanity
have an important role to play. Such considerations nourish opinio juris
on matters going well beyond the interests of individual States. The ICJ
has, on more than one occasion, taken into account resolutions of the
United Nations (in distinct contexts) as a means whereby international
law manifests itself.

   302. In its célèbre Advisory Opinion (of 21 June 1971) on Namibia, for
example, the ICJ dwelt upon, in particular, two UN General Assembly
resolutions relevant to the formation of opinio juris 352. Likewise, in its
Advisory Opinion (of 16 October 1975) on the Western Sahara, the ICJ
considered and discussed in detail some UN General Assembly resolu-
tions 353. In this respect, references can further be made to the ICJ’s Advi-
sory Opinions on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (of 9 July 2004) 354, and on the Declaration
of Independence of Kosovo (of 22 July 2010) 355. In its 1996 Advisory Opin-
    350 For an account, cf., e.g., inter alia, J. Lukacs, L’héritage de la Seconde Guerre

mondiale, Paris, Ed. F.-X. de Guibert, 2011, pp. 38-39, 55, 111 and 125-148 ; and
cf. I. Kershaw, To Hell and Back — Europe 1914-1949, London, Penguin Books, 2016,
pp. 7, 356, 407, 418, 518 and 521.
    351 R. Aron, Paz e Guerra entre as Nações [1962], Brasília, Edit. Universidade de Brasília,

1979, pp. 413, 415, 421-422 and 610. R. Aron’s book contains his reﬂections on the new
age of nuclear weapons, amidst the tensions of the Cold-War era, and the new challenges
and dangers it imposed, — persisting to date, — for the future of humankind; cf., for the
French edition, R. Aron, Paix et guerre entre les nations, 8th ed., Paris, Ed. Calmann-Lévy,
2015, pp. 13-770.
    352 On the principle of self-determination of peoples, namely, General Assembly resolu-

tions 1514 (XV) of 14 December 1960, and 2145 (XXI) of 27 October 1966; cf. I.C.J. Reports
1971, pp. 31, 45 and 49-51.

   353  Cf. I.C.J. Reports 1975, pp. 20, 23, 26-37, 40, 57 and 67-68.
   354  Cf. I.C.J. Reports 2004 (I), pp. 171-172, paras. 86-88.
    355 Cf. I.C.J. Reports 2010 (II), p. 437, para. 80 (addressing a General Assembly reso-

lution “which reﬂects customary international law”).

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432    nuclear arms and disarmament (diss. op. cançado trindade)

ion on the Threat or Use of Nuclear Weapons, the ICJ admitted, even if in
a rather restrictive way, the emergence and gradual evolution of an opinio
juris as reﬂected in a series of resolutions of the UN General Assembly
(I.C.J. Reports 1996 (I), pp. 254-255, para. 70). But the ICJ could have
gone (much) further than that.
   303. After all, opinio juris has already had a long trajectory in legal
thinking, being today endowed with a wide dimension. Thus, already in
the nineteenth century, the so-called “historical school” of legal thinking
and jurisprudence (of F. K. von Savigny and G. F. Puchta) in reaction to
the voluntarist conception, gradually discarded the “will” of the States by
shifting attention to opinio juris, requiring practice to be an authentic
expression of the “juridical conscience” of nations and peoples. With the
passing of time, the acknowledgment of conscience standing above the
“will” developed further, as a reaction against the reluctance of some
States to abide by norms addressing matters of general or common inter-
est of the international community.

   304. This had an inﬂuence on the formation of rules of customary
international law, a much wider process than the application of one of its
formal “sources”. Opinio juris communis came thus to assume “a consid-
erably broader dimension than that of the subjective element constitutive
of custom” 356. Opinio juris became a key element in the formation itself of
international law, a law of conscience. This diminished the unilateral inﬂu-
ence of the most powerful States, fostering international law-making in
fulﬁlment of the public interest and in pursuance of the common good of
the international community as a whole.

  305. The foundations of the international legal order came to be reck-
oned as independent from, and transcending, the “will” of individual
States; opinio juris communis came to give expression to the “juridical
conscience”, no longer only of nations and peoples — sustained in the
past by the “historical school” — but of the international community as
a whole, heading towards the universalization of international law. It is,
in my perception, this international law of conscience that turns in par-

   356 A. A. Cançado Trindade, International Law for Humankind — Towards a New

Jus Gentium, op. cit. supra note 132, p. 137, and cf. p. 138; and cf. R. Huesa Vinaixa,
El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho Internacional Contemporáneo,
Valencia, Tirant lo Blanch, 1991, pp. 30-31 and 36-38, and cf. pp. 76-77, 173, 192, 194,
199 and 204-205; R. E. Piza Escalante, “La ‘Opinio Juris’ como Fuente Autónoma del
Derecho Internacional (‘Opinio Juris’ y ‘Jus Cogens’)”, 39 Relaciones Internacionales —
Heredia/C.R. (1992), pp. 61-74; J. I. Charney, “International Lawmaking — Article 38 of
the ICJ Statute Reconsidered”, New Trends in International Lawmaking — International
‘Legislation’ in the Public Interest (Proceedings of the Kiel Symposium, March 1996),
Berlin, Duncker & Humbolt, 1997, pp. 180-183 and 189-190.

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433      nuclear arms and disarmament (diss. op. cançado trindade)

ticular towards nuclear disarmament, for the sake of the survival of
humankind.

   306. In 1983, Wang Tieya wrote against minimizing the legal signiﬁ-
cance of resolutions of the General Assembly, in particular the declara-
tory ones. As they clarify principles and rules of international law, he
contended that they “cannot be said to have no law-making eﬀect at all
merely because they are not binding in the strict sense. At the very least,
since they embody the convictions of a majority of States, General Assem-
bly resolutions can indicate the general direction in which international
law is developing” 357. He added that those General Assembly resolutions,
reﬂecting the position of “an overwhelming majority of States”, have
“accelerated the development of international law”, in helping to crystal-
lize emerging rules into “clearly deﬁned norms” 358. In the same decade, it
was further pointed out that General Assembly resolutions have been giv-
ing expression, over the years, to “basic concepts of equity and justice, or
of the underlining spirit and aims” of the United Nations 359.

   307. Still in the 1980s, in the course I delivered at the Institute of Pub-
lic International Law and International Relations of Thessaloniki,
in 1988, I began by pondering that customary and conventional interna-
tional law are interrelated, — as acknowledged by the ICJ itself 360 — and
UN General Assembly resolutions contribute to the emergence of opinio
juris communis 361. I stood against the “strictly voluntarist position”
underlying the unacceptable concept of so-called “persistent objector”,
   357 Wang Tieya, “The Third World and International Law”, The Structure and Process

of International Law: Essays in Legal Philosophy Doctrine and Theory (eds. R. St. J. Mac-
donald and D. M. Johnston), The Hague, M. Nijhoﬀ, 1983, p. 964.
   358 Ibid., pp. 964-965.
   359 B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 British
Year Book of International Law (1987), p. 80, and cf. pp. 116, 137 and 141.
   360 For example, in the course of the proceedings in the Nuclear Tests cases (1973-1974),

one of the applicant States (Australia) recalled, in the public sitting of 8 July 1974, that the
ICJ had held, in the North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 41), that a
conventional norm can pass into the general corpus of international law thus becoming
also a rule of customary international law; cf. I.C.J. Pleadings, Nuclear Tests (Australia v.
France), Vol. I, p. 503. In eﬀect, may I add, just as a customary rule may later crystallize
into a conventional norm, this latter can likewise generate a customary rule. International
law is not static (as legal positivists wrongfully assume); it is essentially dynamic.
   361 A. A. Cançado Trindade, “Contemporary International Law-Making: Customary

International Law and the Systematization of the Practice of States”, Sources of Interna-
tional Law (Thesaurus Acroasium, Vol. XIX), Thessaloniki, Institute of Public Interna-
tional Law and International Relations, 1992, pp. 68 and 71.

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434      nuclear arms and disarmament (diss. op. cançado trindade)

and added that dissent from “one or another State individually cannot
prevent the creation of new customary rules” or obligations, ensuing
from opinio juris communis and not from voluntas 362.

   308. In the evolution of international law in time, I proceeded, volun-
tarist positivism has shown itself “entirely incapable” of explaining the
consensual formation of customary international obligations; contrary to
“the pretensions of positivist voluntarism” (with its stubborn emphasis on
the consent of individual States), “freedom of spirit is the ﬁrst to rebel”
against immobilism, in devising responses to new challenges aﬀecting the
international community as a whole, and acknowledging obligations
incumbent upon all States 363.

   309. In my “repudiation of voluntarist positivism”, I concluded on this
point that the attention to customary international law (“incomparably
less vulnerable” than conventional international law to voluntarist temp-
tations) is in line with the progressive development (moved by conscience)
of international law, so as to provide a common basis for the fulﬁlment of
the needs and aspirations of all peoples 364. Today, almost three decades
later, I ﬁrmly restate, in the present dissenting opinion, my own position
on the matter, in respect of the customary and conventional international
obligation to put an end to nuclear weapons, so as to rid the world of
their inhuman threat.

   310. May I here, furthermore, ponder that UN General Assembly or
Security Council resolutions are adopted on behalf not of the States
which voted in favour of them, but more precisely on behalf of the
United Nations Organization itself (its respective organs), being thus
valid for all UN Member States. This applies to the resolutions surveyed
in the present dissenting opinion. It should be kept in mind that the UN
is endowed with an international legal personality of its own, which
enables it to act at international level as a distinct entity, independently of
individual Member States; in this way, it upholds the juridical equality of
all States, and mitigates the worrisome vulnerability of factually weaker
States, such as the NNWS; in doing so, it aims — by multilateralism — at

   362 Op. cit. supra note 361, pp. 78-79.
   363 Ibid., pp. 126-129
   364 Ibid., pp. 128-129. And cf., more recently, in general, A. A. Cançado Trindade, “The

Contribution of Latin American Legal Doctrine to the Progressive Development of Inter-
national Law”, 376 RCADI (2014), pp. 9-92, esp. pp. 75-76.

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435    nuclear arms and disarmament (diss. op. cançado trindade)

the common good, at the realization of common goals of the interna-
tional community as a whole 365, such as nuclear disarmament.

   311. A small group of States — such as the NWS — cannot overlook
or minimize those reiterated resolutions, extended in time, simply because
they voted against them, or abstained. Once adopted, they are valid for
all UN Member States. They are resolutions of the United Nations Orga-
nization itself, and not only of the large majority of UN Member States
which voted in favour of them. UN General Assembly resolutions, reiter-
atedly addressing matters of concern to humankind as a whole (such as
existing nuclear weapons), are in my view endowed with normative value.
They cannot be properly considered from a State voluntarist perspective;
they call for another approach, away from the strict voluntarist-positivist
one.

   312. Conscience stands above the “will”. The universal juridical con-
science stands well above the “will” of individual States, and resonates in
resolutions of the UN General Assembly, which ﬁnd inspiration in gen-
eral principles of international law, which, for their part, give expression
to values and aspirations of the international community as a whole, of
all humankind 366. This — may I reiterate — is the case of General Assem-
bly resolutions surveyed in the present dissenting opinion (cf. supra). The
values which ﬁnd expression in those prima principia inspire every legal
order and, ultimately, lie in the foundations of this latter.

  313. The general principles of law (prima principia), in my perception,
confer upon the (national and international) legal order its ineluctable
axiological dimension. Notwithstanding, legal positivism and political
“realism”, in their characteristic subservience to power, incur into their
basic mistake of minimizing those principles, which lie in the foundations
of any legal system, and which inform and conform the norms and the
action pursuant to them, in the search for the realization of justice. When-
ever that minimization of principles has prevailed the consequences have
been disastrous 367.

   314. They have been contributing, in the last decades, to a vast corpus
juris on matters of concern to the international community as a whole,
such as nuclear disarmament. Their contribution to this eﬀect has
overcome the traditional inter-State paradigm of the international
   365 Cf., in this sense, A. A. Cançado Trindade, Direito das Organizações Internacionais,

6th rev. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2014, pp. 51 and 530-531.
   366 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

Gentium, op. cit. supra note 132, pp. 129-138.
   367 A. A. Cançado Trindade, A Humanização do Direito Internacional, 2nd rev. ed.,

Belo Horizonte/Brazil, 2015, pp. 6-24; A. A. Cançado Trindade, Os Tribunais Internacio-
nais e a Realização da Justiça, op. cit. supra note 255, pp. 410-418.

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436    nuclear arms and disarmament (diss. op. cançado trindade)

legal order 368. This can no longer be overlooked in our days. The
inter-State mechanism of the contentieux before the ICJ cannot be
invoked in justiﬁcation for an inter-State reasoning. As “the principal
judicial organ” of the United Nations (UN Charter, Article 92), the ICJ
has to bear in mind not only States, but also “we, the peoples”, on whose
behalf the UN Charter was adopted. In its international adjudication of
contentious cases, like the present one of Obligations concerning Negotia-
tions relating to Cessation of the Nuclear Arms Race and to Nuclear Disar-
mament, the ICJ has to bear in mind basic considerations of humanity,
with their incidence on questions of admissibility and jurisdiction, as well
as of substantive law.

                     XXI. Epilogue: A Recapitulation

   315. Coming to the end of the present dissenting opinion, I feel in
peace with my conscience: from all the preceding considerations, I trust
to have made it crystal clear that my own position, in respect of all the
points which form the object of the present Judgment on the case of Obli-
gations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament, stands in clear and entire opposition
to the view espoused by the Court’s split majority that the existence of a
legal dispute has not been established before it, and that the Court has no
jurisdiction to consider the Application lodged with it by the Mar-
shall Islands, and cannot thus proceed to the merits of the case. Not at
all: in my understanding, there is a dispute before the Court, which has
jurisdiction to decide the case. There is a conventional and customary
international law obligation of nuclear disarmament. Whether there has
been a concrete breach of this obligation, the Court could only decide on
the merits phase of the present case.

   316. My dissenting position is grounded not only on the assessment of
the arguments produced before the Court by the Contending Parties, but
above all on issues of principle and on fundamental values, to which I
attach even greater importance. As my dissenting position covers all
points addressed in the present Judgment, in its reasoning as well as in its
conclusion, I have thus felt obliged, in the faithful exercise of the interna-
tional judicial function, to lay on the records, in the present dissenting
opinion, the foundations of my dissenting position thereon. I deem it ﬁt,
at this last stage, to recapitulate all the points of my dissenting position,

   368 A. A. Cançado Trindade, Direito das Organizações Internacionais, op. cit. supra

note 365, pp. 530-537.

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expressed herein, for the sake of clarity, and in order to stress their inter-
relatedness.

   317. Primus: According to the jurisprudence constante of the Court, a
dispute is a disagreement on a point of law or fact, a conﬂict of legal
views or interests; The existence of an international dispute (at the time of
lodging a claim) is a matter for the objective determination of the Court.
The existence of a dispute may be inferred. Secundus: The objective deter-
mination of a dispute by the Court is not intended to protect respondent
States, but rather and more precisely to secure the proper exercise of the
Court’s judicial function. Tertius: There is no requirement of prior notice
of the applicant State’s intention to initiate proceedings before the ICJ,
nor of prior “exhaustion” of diplomatic negotiations, nor of prior notiﬁ-
cation of the claim; it is, in sum, a matter for objective determination of
the Court itself.

   318. Quartus: The Marshall Islands and the United Kingdom/India/
Pakistan have pursued distinct arguments and courses of conduct on
the matter at issue, evidencing their distinct legal positions, which suﬃce
for the Court’s objective determination of the existence of a dispute.
Quintus: There is no legal ground for attempting to heighten the thresh-
old for the determination of the existence of a dispute; in its jurisprudence
constante, the Court has expressly avoided a formalistic approach on this
issue, which would aﬀect access to justice itself. The Court has, instead, in
its jurisprudence constante, upheld its own objective determination of the
existence of a dispute, rather than relying— as it does in the present
case — on the subjective criterion of “awareness” of the respondent
States.

  319. Sextus: The distinct series of UN General Assembly resolutions
on nuclear disarmament over the years (namely, warning against nuclear
weapons, 1961-1981; on freeze of nuclear weapons, 1982-1992; condemn-
ing nuclear weapons, 1982-2015; following-up the ICJ’s 1996 Advisory
Opinion, 1996-2015) are endowed with authority and legal value.
Septimus: Their authority and legal value have been duly acknowledged
before the ICJ in its advisory proceedings in 1995. Octavus: Like the
General Assembly, the Security Council has also expressed its concern on
the matter at issue, in its work and its resolutions on nuclear disarma-
ment.

   320. Nonus: The aforementioned United Nations resolutions, in addi-
tion to other initiatives, portray the longstanding saga of the
United Nations in the condemnation of nuclear weapons. Decimus: The

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438   nuclear arms and disarmament (diss. op. cançado trindade)

fact that weapons of mass destruction (poisonous gases, biological and
chemical weapons) have been outlawed, and nuclear weapons, far more
destructive, have not been banned yet, is a juridical absurdity. The obliga-
tion of nuclear disarmament has emerged and crystallized nowadays in
both conventional and customary international law, and the
United Nations has, over the decades, been giving a most valuable contri-
bution to this eﬀect.
   321. Undecimus: In the cas d’espèce, the issue of United Nations reso-
lutions and the emergence of opinio juris communis in the present domain
of the obligation of nuclear disarmament has grasped the attention of the
Contending Parties in submitting their distinct arguments before the
Court. Duodecimus: The presence of evil has marked human existence for
centuries. Ever since the eruption of the nuclear age in August 1945, some
of the world’s great thinkers have been inquiring whether humankind has
a future, and have been drawing attention to the imperative of respect for
life and the relevance of humanist values. Tertius decimus: Also in inter-
national legal doctrine there have been those who have been stressing the
needed prevalence of human conscience, the universal juridical con-
science, over State voluntarism.
   322. Quartus decimus: The UN Charter is attentive to peoples; the
recent cycle of World Conferences of the United Nations has had, as a
common denominator, the recognition of the legitimacy of the concern of
the international community as a whole with the conditions of living and
the well-being of peoples everywhere. Quintus decimus: General principles
of law (prima principia) rest in the foundations of any legal system. They
inform and conform its norms, guide their application, and draw atten-
tion to the prevalence of jus necessarium over jus voluntarium.

   323. Sextus decimus: The nature of a case before the Court may well
require a reasoning going beyond the strictly inter-State outlook; the
present case concerning the obligation of nuclear disarmament requires
attention to be focused on peoples, in pursuance of a humanist outlook,
rather than on inter-State susceptibilities. Septimus decimus: The
inter-State mechanism of adjudication of contentious cases before the ICJ
does not at all imply that the Court’s reasoning should likewise be strictly
inter-State. Nuclear disarmament is a matter of concern to humankind as
a whole.

   324. Duodevicesimus: The present case stresses the utmost importance
of fundamental principles, such as that of the juridical equality of States,
following the principle of humanity, and of the idea of an objective jus-
tice. Undevicesimus: Factual inequalities and the strategy of “deterrence”
cannot be made to prevail over the juridical equality of States. Vicesimus:
“Deterrence” cannot keep on overlooking the distinct series of UN Gen-
eral Assembly resolutions, expressing an opinio juris communis in con-
demnation of nuclear weapons. Vicesimus primus: As also sustained by
general principles of international law and international legal doctrine,

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439   nuclear arms and disarmament (diss. op. cançado trindade)

nuclear weapons are in breach of international law, of IHL and the
ILHR, and of the UN Charter.

   325. Vicesimus secundus: There is need of a people-centred approach in
this domain, keeping in mind the fundamental right to life; the raison
d’humanité prevails over the raison d’Etat. Attention is to be kept on the
devastating and catastrophic consequences of the use of nuclear weapons.
Vicesimus tertius: In the path towards nuclear disarmament, the peoples
of the world cannot remain hostage of individual State consent. The uni-
versal juridical conscience stands well above the “will” of the State. Vic-
esimus quartus: The absolute prohibitions of arbitrary deprivation of
human life, of inﬂiction of cruel, inhuman or degrading treatment, and of
inﬂiction of unnecessary suﬀering, are prohibitions of jus cogens, which
have an incidence on ILHR and IHL and ILR, and foster the current
historical process of humanization of international law.

   326. Vicesimus quintus: The positivist outlook unduly overlooks the
opinio juris communis as to the illegality of all weapons of mass destruc-
tion, including [and starting with] nuclear weapons, and the obligation of
nuclear disarmament, under contemporary international law. Vicesimus
sextus: Conventional and customary international law go together, in the
domain of the protection of the human person, as disclosed by the Mar-
tens clause, with an incidence on the prohibition of nuclear weapons. Vic-
esimus septimus: The existence of nuclear weapons is the contemporary
tragedy of the nuclear age; today, more than ever, human beings need
protection from themselves. Nuclear weapons have no ethics, and ethics
cannot be separated from law, as taught by jusnaturalist thinking.

   327. Vicesimus octavus: Humankind, a subject of rights, has been a
potential victim of nuclear weapons already for a long time. Vicesimus
nonus: The law of nations encompasses, among its subjects, humankind
as a whole (as propounded by the “founding fathers” of international
law). Trigesimus: This humanist vision is centred on peoples, keeping in
mind the humane ends of States. Trigesimus primus: Opinio juris commu-
nis necessitatis, upholding a customary and conventional obligation of
nuclear disarmament, has been ﬁnding expression in the NPT Review
Conferences, in the relevant establishment of nuclear-weapon-free zones,
and in the recent Conferences of Humanitarian Impact of Nuclear Weap-
ons, — in their common cause of achieving and maintaining a
nuclear-weapon-free world. Trigesimus secundus: Those initiatives have
gone beyond the State-centric outlook, duly attentive to peoples’ and
humankind’s quest for survival in our times.

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440   nuclear arms and disarmament (diss. op. cançado trindade)

   328. Trigesimus tertius: Opinio juris communis — to which UN Gen-
eral Assembly resolutions have contributed — has a much broader dimen-
sion than the subjective element of custom, being a key element in the
formation of a law of conscience, so as to rid the world of the inhuman
threat of nuclear weapons. Trigesimus quartus: UN (General Assembly
and Security Council) resolutions are adopted on behalf of the
United Nations Organization itself (and not only of the States which
voted in their favour); they are thus valid for all UN Member States.

   329. Trigesimus quintus: The United Nations Organization, endowed
with an international legal personality of its own, upholds the juridical
equality of States, in striving for the realization of common goals such as
nuclear disarmament. Trigesimus sextus: Of the main organs of the
United Nations, the contributions of the General Assembly, the Secu-
rity Council and the Secretary-General to nuclear disarmament have been
consistent and remarkable over the years.

   330. Trigesimus septimus: United Nations resolutions in this domain
address a matter of concern to humankind as a whole, which cannot thus
be properly approached from a State voluntarist perspective. The univer-
sal juridical conscience stands well above the “will” of individual States.
Trigesimus octavus: The ICJ, as the principal judicial organ of the
United Nations, is to keep in mind basic considerations of humanity,
with their incidence on questions of admissibility and jurisdiction, as well
as of substantive law. Trigesimus nonus: In sum, the ICJ has jurisdiction
to consider the cas d’espèce, and there is a conventional and customary
international law obligation of nuclear disarmament; whether there has
been a breach of this obligation, the Court could only decide on the mer-
its phase of the present case.

   331. Quadragesimus: A world with arsenals of nuclear weapons, like
ours, is bound to destroy its past, dangerously threatens the present, and
has no future at all. Nuclear weapons pave the way into nothingness. In
my understanding, the International Court of Justice, as the principal
judicial organ of the United Nations, should, in the present Judgment,
have shown sensitivity in this respect, and should have given its contribu-
tion to a matter which is a major concern of the vulnerable international
community, and indeed of humankind as a whole.

                      (Signed) Antônio Augusto Cançado Trindade.

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