New Zealand Yearbook of International Law
In 2005 the international community witnessed increased tension over Iran’s nuclear programme, North Korea’s tentative participation in the Six Party talks and continued refusal to back down from its nuclear weapons programme, the repercussions of the AQ Khan network, the poignant passing of the 60th commemoration of the nuclear bombings of Hiroshima and Nagasaki, and finally the elation of Dr El Baradei and the International Atomic Energy Agency (IAEA) on receiving the Nobel Peace Prize. Against this background and heightened fears of terrorists acquiring nuclear weapons, the Review Conference of the Treaty on Non-Proliferation of Nuclear Weapons (‘NPT’ or ‘Treaty’) took place. It is this Treaty that continues to be the lynchpin of the international non-proliferation regime.
The NPT was opened for signature on 1 July 1968 and entered into force on 5 March 1970. It is the most widely ratified non-proliferation and disarmament treaty with only India, Israel and Pakistan remaining outside. The most controversial aspect of the NPT was that those States that did not possess nuclear weapons (non-nuclear weapon States – non-NWS) would renounce their right to develop nuclear weapons, while retaining the right to undertake research into nuclear energy and to produce and use it for peaceful purposes and in return, the five declared nuclear weapon States (NWS), China, France, Russia, United Kingdom and United States, would work towards eliminating their nuclear weapons. Essentially, there are three pillars to the NPT, those being non-proliferation, nuclear disarmament and the right to use nuclear energy for peaceful purposes. Without any one of these pillars the Treaty would not have existed.
For New Zealand, the NPT is the forum in which to achieve one of the central objectives of its Nuclear Free, Disarmament and Arms Control Act 1987 – that being “to promote and encourage an active and effective contribution by New Zealand to the essential process of disarmament and international arms control”. Since the passing of the Nuclear Free Act, New Zealand has been to the forefront of international efforts in advocating for nuclear disarmament.
One mechanism that has featured prominently in international nuclear disarmament forums has been the New Agenda Coalition (NAC) – a group whose members are Brazil, Egypt, Ireland, South Africa, Sweden and New Zealand. Formed in 1998, the NAC’s goal was to advance nuclear disarmament. The high point of the NAC’s efforts was the 13 Practical Steps towards nuclear disarmament agreed to by consensus at the 2000 NPT Review Conference. These Steps were regarded as providing a realistic plan of action for nuclear disarmament and hailed as a major success. One of the most welcomed achievements from the 2000 Review Conference was Step 6 in which the NWS made “[a]n unequivocal undertaking… to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI”. Undeterred by the climate of pessimism that prevailed before the 2005 Review Conference, former Minister for Disarmament and Arms Control, Marian Hobbs, speaking on behalf of the NAC, set out the group’s view on how, in a climate of escalating tensions over proliferation, nuclear disarmament could make a positive contribution:
Mr President, as this Conference knows, the New Agenda sees the pursuit of nuclear disarmament as a fundamental tool in addressing the international community’s deep concern about proliferation. Nuclear disarmament and nuclear non-proliferation are mutually reinforcing processes. It is not simply the case that what does not exist cannot proliferate. It must also be evident that systematic and progressive efforts to implement the obligation in Article VI to pursue negotiations on effective measures on nuclear disarmament will help to address misguided ambitions to develop nuclear arsenals.
In the aftermath of the 2005 Review Conference and at a time when proliferation concerns are overshadowing calls for increased efforts on nuclear disarmament, it is prudent to ask just how solid are the legal foundations upon which New Zealand’s calls for greater progress by the NWS are based. The following article will assess the nuclear disarmament obligations as contained in the NPT; the elaboration of those obligations in outcome documents of past review conferences; the central role of the 1996 Comprehensive Test-Ban-Treaty (CTBT) in the NPT regime; and finally an assessment of the recent actions carried out by the United States that have implications for nuclear disarmament. Before launching into the analysis, a brief post-mortem on the 2005 Review Conference will provide the necessary background to understanding the deep divisions that now exist within the NPT regime.
Given the grave concerns of the international community that had come to a head in 2005 and are still present today, the Review Conference was a much needed opportunity to review the operation of the NPT and to both reinforce and strengthen this Treaty that is so often referred to as the “cornerstone” of the non-proliferation regime. Review Conferences are only held every five years as provided for in article VIII(3) of the Treaty. New Zealand put forward proposals along with other States parties that were aimed at strengthening the role of the CTBT, bolstering compliance and verification, further developing export controls, preventing States’ withdrawal from the NPT and actioning and accelerating nuclear disarmament.
It is fair to say that the 2005 Review Conference, which took place on 2–27 May in New York, was a disaster from start to finish. Procedural wrangling for the first half of the Conference prevented States parties from getting down to business. Soon after those disputes had been resolved, it was all too apparent that the stand off between on the one side the developing countries (the non-aligned movement – NAM), and on the other the NWS supported by the majority of Western States, over tighter controls for the nuclear fuel cycle was not going to be broken. For the NAM to agree to further restrictions, the NWS needed to undertake further commitments towards nuclear disarmament. The Conference ended in failure with no outcome and no response to the international community’s justified concerns. It was not only an opportunity lost, but also a further weakening of multilateral diplomacy. While it is easy to criticise multilateralism for being burdensome, slow and often only achieving the lowest common denominator, the fact remains that bilateral and regional agreements along with Security Council Resolutions are only a band-aid like treatment in comparison to the benefit of bringing the great majority of States onboard a multilateral mechanism.
One of the reasons why the 13 Practical Steps for nuclear disarmament are important is that they articulate a plan of action that is not provided by the ambiguous wording of article VI of the NPT, the only article that actually refers to the obligation on the NWS to disarm. Article VI states:
Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.
Questions that arise from the above text are how relevant and realistic is a “treaty on general and complete disarmament”, why is there not a more precise timeframe for nuclear disarmament and what are the implications of this omission, and what does the reference to “good faith” require of the NWS? Each of these questions is discussed separately below.
A puzzling reference is that of “a treaty on general and complete disarmament” in article VI. One theory is that this was language from the Cold War that has no relevance today. However, the NWS have viewed progress on nuclear disarmament as being contingent on progress on general and complete disarmament. This is despite the text of article VI itself clearly distinguishing between “negotiations… on effective measures relating to… nuclear disarmament” and “negotiations… on a treaty on general and complete disarmament”. A similar reference is included in the preamble to the 1993 Chemical Weapons Convention and has not prevented States parties to that Convention from negotiating a verification regime to ensure that States have disarmed and are not producing chemical weapons. However, an objective in the preamble has significantly different legal implications to one that is included in the body of the treaty.
Even if the reference to “general and complete disarmament” is of relevance today, the plethora of weapons regimes that exists today demonstrate that general and complete disarmament has outpaced nuclear disarmament. There are a significant number of examples of treaties that are now firmly installed into the international community’s disarmament armoury. In the light of these developments, it is incomprehensible that the NWS could continue to link nuclear disarmament to progress on general and complete disarmament.
Moreover, what if efforts towards general and complete disarmament are being blocked by the NWS themselves? In recent times, the United States has brought to a halt the negotiation of a verification protocol for the Biological Weapons Convention and it, along with China and Russia, have not joined the Ottawa Convention on anti-personnel mines. The plurality of weapons regimes highlights the fact that States have chosen to implement tailor-made regimes for a particular weapon or weapon system rather than having one treaty for all weapons. It has very much been a case of “horses for courses” and further underscores the aspirational nature of a “treaty on general and complete disarmament”.
De-linking nuclear disarmament from general and complete disarmament was recognised as a necessary and practical consequence of moving forward on the nuclear disarmament agenda, an interpretation that can be drawn from the 13 Steps in which the unequivocal undertaking by the NWS towards nuclear disarmament and a treaty on general and complete disarmament are addressed in two separate steps. It was this clear separation of the two objectives that signalled their de-linking. Against this background, suggestions by the NWS that these two objectives remain linked raises suspicion that what is being sought is to undermine the 13 Steps and wind back expectations for nuclear disarmament.
The undefined timeframe for when nuclear disarmament should take place could give the impression that this is an obligation that can be postponed indefinitely. In contrast to article VI is article III that requires all non-NWS to accept safeguards for verifying compliance with the NPT and in paragraph 4 explicitly states that negotiation of a safeguards agreement shall commence within 180 days of the Treaty’s entry into force. However, the differences between articles III and VI should not be overstated. Article III requires the straightforward negotiation of a single verification regime, whereas nuclear disarmament is a far more complex process. Dismantling nuclear weapons is costly and needs to be carried out in a way that does not allow other States to discover how the weapons were developed in the first place. Even if nuclear disarmament was a long-term goal, it nonetheless demands that real progress be made. Thirty-six years after the NPT entered into force, nuclear weapons number in the tens of thousands. Such a lapse of time combined with continuing high numbers of nuclear weapons calls into question the “good faith” of the NWS – a matter discussed in detail below.
Article VI only obligates the NWS to “pursue negotiations in good faith”; it is not to start disarming unilaterally or as a group. The text calls for the “cessation of the nuclear arms race at an early date”, but does not indicate what this actually means. What does this mean in terms of the NWS’ obligations? It is not often that a treaty specifically refers to “good faith”, which is a fundamental principle underlining treaty interpretation and was formally codified in article 26 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Authority regarding how the principle of “good faith” has been interpreted in international law is found in the Nuclear Test Cases where the Court stated:
one of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential.
The above reference is pertinent to the NPT, which largely succeeded in being concluded and attracted the membership of previously nuclear capable States such as Brazil and South Africa on the basis that the NWS were committed to disarming. Maintaining trust and confidence in the NPT requires progress on all three fronts – prohibition of nuclear proliferation, nuclear disarmament and peaceful uses of nuclear energy. The failure to make tangible progress towards one of the Treaty’s three objectives may have the potential to undermine the regime as a whole. The ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons recognised the obligation that article VI placed on the NWS and their obligation to act in good faith, when it stated:
The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result “nuclear disarmament in all its aspects” by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.
The ICJ’s ruling was significant because it confirmed that article VI was not merely an aspirational goal, but one that required a concrete outcome – negotiations on nuclear disarmament. What so far has been done to achieve this goal?
In the past, the NWS have been willing to set out their commitments in political frameworks. For example, at the 1995 Review and Extension Conference, the NWS reaffirmed “their commitment, as stated in article VI, to pursue in good faith negotiations on effective measures relating to nuclear disarmament”. The 1995 Conference was called the ‘Review and Extension Conference’ because under the terms of article X(2) the NPT had been set to expire in 1995 and could only be extended with the agreement of the States parties. In order to achieve the agreement of the majority of non-nuclear weapon States to the legally-binding decision on the extension of the NPT, politically-binding agreements were reached on “Strengthening the Review Process for the Treaty”, “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”, and “Resolution on the Middle East”. Former United Nations Under Secretary-General for Disarmament and President of the 1995 NPT Review and Extension Conference, Jayantha Dhanapala, was convinced that without these “political foundations” the States parties would not have agreed to the indefinite extension. Specifically, the NWS “in the full realization and effective implementation of article VI” committed to negotiation on a Comprehensive Nuclear-Test-Ban Treaty; the negotiation of a treaty banning the production of fissile material, and in the pursuit of completely eliminating nuclear weapons the NWS were to make “systematic and progressive efforts” to reduce nuclear weapons.
Building on the 1995 results was the Final Document containing the 13 Steps from the 2000 Review Conference. Given that at this Review Conference the extension of the NPT was no longer on the table, the 13 Steps were seen as being the NWS finally taking their obligations seriously under article VI. However, the euphoria created by the 2000 Review Conference has been short lived, as today many of the Steps have not been implemented.
In international law the 13 Practical Steps are characterised as ‘soft law’, a term that refers to instruments and norms that do not give rise to legally binding obligations, but which have certain legal effects or significance nonetheless. The 13 Steps are the only comprehensive plan of action on nuclear disarmament agreed by consensus. The advantage of the 13 Steps being an instrument of soft law is that what would have been protracted and stalled negotiations of a legal instrument were avoided; a legal instrument would have inevitably included far more qualified language; and several of the Steps were ready for immediate implementation as not all of the Steps needed to be subjected to often slow and laborious ratification processes. Even though soft law is not legally binding, it nonetheless has certain legal effects. Soft law cannot simply be ignored because “its importance within the general framework of international legal development is such that particular attention requires to be paid to it”. One way that soft law can become authoritative is to be implemented. As Simma has observed, soft law instruments “if they are equipped with an efficient follow-up mechanism, can be equally or even more troublesome or threatening to States than treaty obligations linked to supervision by… more detached expert bodies”.
However easy or difficult it may have been to implement the 13 Steps, the overall progress report on their implementation is grim. The CTBT has not entered into force, the Conference on Disarmament (CD) as the negotiating forum with primary responsibility for disarmament and non-proliferation has not commenced negotiations on a fissile material cut-off treaty or even begun discussions on nuclear disarmament and the United States has abandoned the Anti-Ballistic Missile Treaty. This is to name only a few of the casualties. Amongst the wreckage, there are glimpses of progress to be found. Two examples are Russia’s submission of a report on its nuclear disarmament efforts to the 2005 Review Conference as required under Step 12, and the United Kingdom undertaking a study on the development of verification for nuclear disarmament as required under Step 13. However, these positive steps have been overshadowed by the United States’ refusal to even acknowledge this past agreement on nuclear disarmament. Illustrative of this attitude were past comments made by United States Assistant Secretary of State for Arms Control, Stephen Rademaker, to the Carnegie Endowment for International Peace on 3 February 2005. Speaking on the topic of “US Compliance with Article VI”, Rademaker did not once refer to the 13 Steps and instead based United States’ compliance solely on the text of article VI.
The stark reality is that implementation of the 13 Steps is in the hands of the NWS and no amount of protest by the non-NWS will overcome this situation. For the 13 Steps to become part of international customary law would require evidence of both opinio juris and State practice. Additionally, in the North Sea Continental Shelf Case, the ICJ ruled that if there is to be a sufficient body of State practice to support the establishment of a rule in customary law then those States whose interests are specially affected must be included in the practice. The 13 Steps are at risk of being regarded as a dead letter. That view is reinforced by suggestions that the lack of reaffirmation of the 13 Steps at the 2005 Review Conference means that they no longer represent a consensus agreement and are well and truly buried. This is a position that also finds support amongst some legal commentators. It would be wrong to dismiss the 13 Steps simply because they were not reaffirmed. If this logic was followed then does it mean that the indefinite extension and other agreements at previous Review Conferences were also undermined? Furthermore, the NWS failure to implement the 13 Steps should not be a cause for open celebrations by these States. Picking and choosing from outcome documents is not always a wise course of action and has the potential to undermine the document as a whole, which in the case of the 2000 Final Document includes recognition of important non-proliferation mechanisms such as the IAEA Safeguards Agreements. The implications of failed review conferences are difficult to judge. Although the continuing consensus surrounding past agreements may appear fragile, it would require far more decisive action by the decision-making organs to set them aside altogether.
Strong support for the 13 Steps has been expressed in resolutions submitted to the First Committee. General Assembly resolutions can constitute opinio juris. The ICJ in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, having noted the controversial nature of General Assembly resolutions on nuclear disarmament (which remains the case) and therefore, failed to establish a customary norm, went on in paragraph 73 to recognise that:
the adoption each year by the General Assembly, by large majority, of resolutions recalling the content of resolution 1653 (XVI), and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament.
Sloane discussed the role of General Assembly resolutions extensively in an article entitled ‘General Assembly Resolutions Revisited (Forty Years Later)’. According to Sloane the top three “factors that are critical to the effect of General Assembly Resolutions” and therefore, determinative of their normative value, are “(1) terms and intent, (2) voting patterns or support and (3) State practise (sic)”. Added to this short list is the “repetition factor”; while conceding as to its controversy, Sloane explains that the value of General Assembly resolutions that are repeated each year is that:
it demonstrates continuity and distinguishes those resolutions having stable support from those enjoying only an ephemeral majority. It also strengthens their evidential and precedential value and increases expectations of continued interest and support. It mobilizes public opinion and legal thinking, impresses the importance which States attach to the resolution, reinforces claims and confirms a persistent practice. Repetition answers the objection that a resolution represents only a temporary majority which may quickly change.
Sloane’s comments are highly relevant to the repeated demands for action on nuclear disarmament in the First Committee each year. In the wake of a despondent CD and dysfunctional NPT Review Conference, the General Assembly has become the most prominent forum in which non-NWS can express their increasing frustration. Nonetheless, the significance of General Assembly resolutions should not be over-stated. Following the ICJ’s ruling in the North Sea Continental Shelf Case, it is clear that the large majorities supporting General Assembly resolutions calling for the implementation of the 13 Steps cannot create rules of customary international law. Those majorities must also include those States most affected by such a rule, which in this case inevitably requires the NWS’ support.
An alternative view of the 13 Steps is through the lens of the VCLT. In 2004, eminent British lawyers Rabiner Singh QC and Professor Christine Chinkin gave a legal opinion on renewal of the Mutual Defence Agreement (MDA) between the United States and United Kingdom. They began by noting that article 31(1) of the VCLT states that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. According to article 31(2), a treaty’s context and purpose includes “its preamble and annex”. One of the NPT’s purposes as set out in its preamble is “to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament”. Article VIII(2) of the NPT provides further support to the goals of the Treaty by stating that the review conferences must be held “with a view to assuring that the purposes of the preamble and the provisions of the treaty are being realised”. According to Singh and Chinkin, this provision of the NPT effectively brings its purposes as set out in the preamble into the text itself. This is an interpretation that gives increased impetus to the need to operationalise the goals set out in the NPT’s preamble. The inclusion of nuclear disarmament as a core pillar of the NPT was essential for the non-NWS agreement to the Treaty in the first place. It is against this background that the Treaty must be interpreted. The role of nuclear disarmament in the agreement of non-NWS to, and the realisation of, the NPT is also relevant to the interpretation of its articles. Article 32 of the VCLT provides that under certain circumstances “[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”. While the language of article VI may have been unclear as to exactly what was required of the NWS, the 13 Steps provided a plan of action for achieving a central goal of the NPT and one that was crucial to the Treaty’s conclusion.
Drawing on article 31(3)(a) of the VCLT, which takes into account “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”, Singh and Chinkin concluded that the 13 Steps were an appropriate source for interpreting the obligations set out in article VI. The 13 Steps established standards by which to judge whether effective measures for nuclear disarmament had indeed been carried out. These included irreversibility, verification and transparency and were in line with other disarmament and non-proliferation instruments such as the Chemical Weapons Convention and the IAEA Safeguards Agreements. These requirements are necessary for the NWS to demonstrate to the non-NWS that they are actually carrying out their obligations and indeed living up to their obligation to carry out “effective” measures of nuclear disarmament. If the NWS were to propose an alternative plan for nuclear disarmament it would be expected to include the same standards as contained in the 13 Steps. Most importantly, the 13 Steps elaborated on the vague language of article VI and nuclear disarmament was placed on an equal level with the other two components of the NPT’s central bargain.
The 13 Steps as a soft law instrument, and even with the majority of States’ support each year at the General Assembly, has limited authority. However, as an authoritative source of interpretation, the 13 Steps elaborated on and added substance to an obligation that was key to bringing about the NPT.
An issue of close concern to New Zealand has been the need to bring to a halt all nuclear testing. This lesson was made all the more real in the aftermath of French testing in the Pacific region. New Zealand has been a strong supporter of the CTBT and each year jointly submits with Australia and Mexico the annual resolution calling for the entry into force of the Treaty to the First Committee. During the Conference on Facilitating the Entry Into Force of the CTBT in 2005, New Zealand in its opening statement expressed the widely shared view that:
[g]lobal security continues to be under threat from all directions and in unprecedented ways. A fully operational CTBT would be the first line of defence against the resumption of nuclear testing, and, as such, a fundamental contribution towards nuclear disarmament and non-proliferation.
The NPT’s negotiating history suggests that the prohibition on nuclear-weapon test explosions was considered to be an important component of the required measures needed to implement article VI. States reflected that sentiment in the NPT’s preamble, which provides:
[r]ecalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapons tests in the atmosphere, in outer space and under water in its Preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all times and to continue negotiations to this end.
International efforts to prohibit and condemn nuclear testing have been underway for a long time. Prior to the conclusion of the NPT, the 1959 Antarctic Treaty followed by the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Partial Test Ban Treaty) prohibited nuclear testing. A key component of the 1986 Treaty of Rarotonga and 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlateloco) is the prohibition of nuclear testing in those regions. The widespread condemnation of India and Pakistan’s nuclear testing in 1998 culminated in the United Nations Security Council passing Resolution 1172 that called on those two States to halt testing and specifically called on all States to respect the CTBT. Finally, the high priority placed on the CTBT by NPT States parties was reflected in the first of the 13 Steps that called for the early entry into force of the CTBT.
Despite strong international support for a prohibition on nuclear testing, States agreed to unique entry into force provisions that have proven to be a major hurdle to the CTBT’s implementation. In accordance with article XIV, the CTBT will only enter into force once those States listed in its annex 2 have joined. States listed under annex 2 that have not yet become a party to the Treaty are China, Colombia, North Korea (Democratic Republic of Korea or DPRK), Egypt, India, Indonesia, Iran, Israel, Pakistan, and the United States. Three NWS that have made good on their commitment to terminate nuclear testing by becoming party to the CTBT are France, Russia and the United Kingdom. In contrast is the position of the United States. The US Senate in 1999 rejected ratification of the CTBT and the current US Administration has been adamant in its intention not to re-visit that decision. A more evasive approach has been taken by China, whose enthusiasm for the CTBT has not been matched by any real indication that it intends joining in the near future.
Although the CTBT has not entered into force, the First Committee resolution that promotes the importance of this Treaty continues to receive the support of an overwhelming number of States. However, creating difficulties for the CTBT is that the United States has a crucial role as the NWS with by far the largest nuclear weapon capabilities and along with other non-State parties could be seen as leaving the door open to nuclear testing at a latter date. Further complicating matters is the nuclear test carried out by the DPRK on 9 October 2006. Preventing the United States from carrying out a nuclear test right now is the moratorium on nuclear testing that it observes. Moratoriums are useful mechanisms for moving towards a legal-binding prohibition, but by themselves only provide temporary protection that can be withdrawn at any time. A counter argument is that the United States has voluntarily enforced the moratorium and this may indicate that it accepts implicitly the global prohibition on nuclear testing. This argument is reinforced by the swift action of the Security Council in response to DPRK’s nuclear test. The Security Council declared DPRK’s test to be a “clear threat to international peace and security” thereby invoking one of its toughest measures, which were sanctions under article 41, chapter VII of the United Nations Charter. Although the CTBT has a long way to go before entering into force, the respect that States have for the moratorium combined with their willingness to take action against States that carry out nuclear tests demonstrates the growing strength of the prohibition against nuclear testing.
Since the end of the Cold War there have been significant reductions in the nuclear armouries of the NWS. Ahead of last year’s Review Conference, Russia and the United States were eager to portray in the best possible light their joint efforts in reducing their respective stockpiles. In a resolution titled “Bilateral strategic nuclear arms reductions and the new strategic framework”, to the First Committee in 2004, both States made the most of the good news with operative paragraph 1 “welcoming the entry into force of the Treaty on Strategic Offensive Reductions (the Moscow Treaty)” under which the United States and Russia have committed to reducing their strategic nuclear weapons to 1 700-2 200 each by the year 2012. Further good news to be shared from the United States was that since the end of the Cold War it had “reduced the number of its START-accountable deployed strategic warheads from over 10 000 to less than 6 000”. These good tidings have come under fire from some non-NWS and in particular the NAM. “Reductions” do not necessarily mean the complete and irreversible elimination of nuclear weapons. It can simply mean taking weapons off alert and placing them in a stockpile. Frustration has been expressed over the fact that these agreements are not legally binding and do not include a verification mechanism. The warming of relations between Russia and the United States appears to have led both States to conclude that between friends it is not necessary to put in place checks such as verification mechanisms. That attitude has met with sharp criticism from the NAC for its failure to take into account the required measures under the 13 Steps concerning the irreversibility and verification of nuclear disarmament. Nonetheless, it is important for the non-NWS to acknowledge progress and give credit where it is due. Such acknowledgement is one possibility for opening a healthier dialogue between the non-NWS and NWS. But it is equally important that the NWS live up to the same standards that they demand of non-NWS in implementing the IAEA safeguards agreements and ensuring that all nuclear energy programmes are for peaceful purposes only.
Whatever progress the United States has made towards nuclear disarmament has potentially been seriously undermined by its plans to “sustain and modernize existing nuclear force structure” as set out in the 2001 Nuclear Posture Review and funding requests for the development of new nuclear weapons. The United States Administration’s proposed budget for FY2006 and 2007 contained requests for financing to resume research on designing new nuclear weapons. One weapon design that has captured international attention is the bunker buster, which is designed to destroy underground enemy command and control facilities and weapons stores. Such proposals are contrary to article VI and the commitments made at the 1995 and 2000 Review Conferences. It may be acceptable to modify nuclear weapons to ensure their security, but devising new ways in which such weapons can be used could have the opposite effect of the NPT’s stated aim of ending the arms race. The NWS may respond that, in accordance with article 31(3)(b) of the VCLT, “any subsequent practice in the application of the treaty” can be used as a means for interpreting a treaty. This is an interpretation that would account for the development of new nuclear weapons by the NWS since the entry into force of the NPT and during the Cold War. However, in interpreting a treaty States have recourse to all sources of interpretation, which includes the negotiating history of the NPT, negotiation of the NPT’s extension and the final outcome of the 1995 NPT Review Conference. Finally, Step 9 of the 13 Steps calls for a “diminishing role for nuclear weapons in security policies to minimize the risk that these weapons ever be used and to facilitate the process of their total elimination”. If there was any doubt prior to the 2000 Review Conference about whether the NWS’ practice of developing new nuclear weapons was incompatible with the NPT, then that doubt should have been cast aside by the new standards contained in the 13 Steps.
The NPT, a regime that is under considerable strain, must serve the security interests of all its members if it is to remain standing as the cornerstone of the non-proliferation and disarmament regime. The bargain upon which the NPT was brokered is being challenged and one of the reasons for this is the prestige and power attributed to nuclear weapons. That most unsettling sentiment was recently voiced by well-known NPT commentator Dr Rebecca Johnson, who before the United Kingdom’s Parliamentary Defence Committee stated:
It is necessary to recognise that what prevents the nuclear genie from being put back in its bottle is not the technology or know-how, but the value still accorded to nuclear weapons, particularly by states that have them. That nuclear weapons are presently regarded as an important emblem and currency of power is not a natural or military fact or attribute connected with the weapons’ utility, but a social and political construct bolstered by the actions of the major powers.
Indeed, it can be argued that the International Court of Justice foresaw this very scenario when it stated in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons at paragraph 98:
In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.
Turning off the proliferation tap, as currently represented by DPRK and Iran, requires strong enforcement of their non-proliferation obligations. But preventing a repetition of such cases and inserting some much needed stability into the international security regime requires addressing the symbolism of power that nuclear weapons have come to represent. One such tool for fixing that problem is real and tangible progress towards nuclear disarmament. Essentially, that solution requires China, France, Russia, the United Kingdom and the United States to demonstrate leadership and fulfil their responsibilities entrusted to them as NWS and Permanent Members of the Security Council. New Zealand’s calls for increased action on nuclear disarmament are needed now more than ever before. Nuclear disarmament is not merely a lofty goal, but rather a legal obligation that has been bolstered and reinforced in a number of ways and is long overdue in terms of its effective implementation. The pronouncements made by the International Court of Justice on nuclear disarmament, augmentation of article VI through the declarations of the 1995 and 2000 Review Conferences, and repeated demands in General Assembly resolutions, constitute a strong and stable platform from which New Zealand should continue to make its case.
The Conference agrees on the following practical steps for the systematic and progressive efforts to implement Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons and paragraphs 3 and 4(c) of the 1995 Decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”:
1. The importance and urgency of signatures and ratifications, without delay and without conditions and in accordance with constitutional processes, to achieve the early entry into force of the Comprehensive Nuclear-Test-Ban Treaty.
2. A moratorium on nuclear-weapon-test explosions or any other nuclear explosions pending entry into force of that Treaty.
3. The necessity of negotiations in the Conference on Disarmament on a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices in accordance with the statement of the Special Coordinator in 1995 and the mandate contained therein, taking into consideration both nuclear disarmament and nuclear non-proliferation objectives. The Conference on Disarmament is urged to agree on a programme of work which includes immediate commencement of negotiations on such a treaty with a view to their conclusion within five years.
4. The necessity of establishing in the Conference on Disarmament an appropriate subsidiary body with a mandate to deal with nuclear disarmament. The Conference on Disarmament is urged to agree on a programme of work which includes the immediate establishment of such a body.
5. The principle of irreversibility to apply to nuclear disarmament, nuclear and other related arms control and reduction measures.
6. An unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI.
7. The early entry into force and full implementation of START II and the conclusion of START III as soon as possible while preserving and strengthening the ABM Treaty as a cornerstone of strategic stability and as a basis for further reductions of strategic offensive weapons, in accordance with its provisions.
8. The completion and implementation of the Trilateral Initiative between the United States of America, the Russian Federation and the International Atomic Energy Agency.
9. Steps by all the nuclear-weapon States leading to nuclear disarmament in a way that promotes international stability, and based on the principle of undiminished security for all:
• Further efforts by the nuclear-weapon States to reduce their nuclear arsenals unilaterally.
• Increased transparency by the nuclear-weapon States with regard to the nuclear weapons capabilities and the implementation of agreements pursuant to Article VI and as a voluntary confidence-building measure to support further progress on nuclear disarmament.
• The further reduction of non-strategic nuclear weapons, based on unilateral initiatives and as an integral part of the nuclear arms reduction and disarmament process.
• Concrete agreed measures to further reduce the operational status of nuclear weapons systems.
• A diminishing role for nuclear weapons in security policies to minimize the risk that these weapons ever be used and to facilitate the process of their total elimination.
• The engagement as soon as appropriate of all the nuclear-weapon States in the process leading to the total elimination of their nuclear weapons.
10. Arrangements by all nuclear-weapon States to place, as soon as practicable, fissile material designated by each of them as no longer required for military purposes under IAEA or other relevant international verification and arrangements for the disposition of such material for peaceful purposes, to ensure that such material remains permanently outside of military programmes.
11. Reaffirmation that the ultimate objective of the efforts of States in the disarmament process is general and complete disarmament under effective international control.
12. Regular reports, within the framework of the NPT strengthened review process, by all States parties on the implementation of Article VI and paragraph 4(c) of the 1995 Decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”, and recalling the Advisory Opinion of the International Court of Justice of 8 July 1996.
13. The further development of the verification capabilities that will be required to provide assurance of compliance with nuclear disarmament agreements for the achievement and maintenance of a nuclear-weapon-free world.
[∗] LLB (Otago), LLM (Geneva). Former Second Secretary to New Zealand’s Permanent Mission to the Conference on Disarmament and United Nations, in Geneva, and assistant to the Chair of Subsidiary Body I to Main Committee I, which addressed Article VI and the eighth to twelfth preambular paragraphs of the NPT and negative security assurances during the 2005 NPT Review Conference.
 Absent from this list is the Democratic Peoples Republic of Korea, whose status within the NPT is a matter that remains undecided. For a discussion on this matter see The American Society of International Law Insights: Frederic L Kirgis, ‘North Korea’s Withdrawal From The Nuclear Nonproliferation Treaty’, online: <www.asil.org/insights/ insigh96.htm> (last accessed on 7 February 2007).
 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Part I (NPT/CONF.2000/28), article VI and preambular paragraphs 8 to 12, paragraph 15 (the ‘13 Practical Steps’ towards nuclear disarmament).
 Step 6 of the 13 Practical Steps: ibid.
 See New Zealand Statements on Disarmament, ‘2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, General Debate, Statement by Hon Marian Hobbs, Minister for Disarmament and Arms Control, New Zealand, on behalf of the New Agenda Coalition – Brazil, Egypt, Ireland, Mexico, South Africa, Sweden and New Zealand (2 May 2005)’, online: <http://www.nzmissionny.org/disarmnt.htm> (last accessed on 7 February 2007). Throughout the Review Conference, New Zealand chaired the NAC.
 The examples of statements and actions by the NWS predominantly focus on the United States, which is inevitable given it has the largest nuclear weapon capabilities and has a major influence over the tone that is set within multilateral fora.
 Working papers that New Zealand was a party to can be viewed at: United Nations Working Papers, ‘Non-Proliferation of Nuclear Weapons’, online: <www.un.org/events/ npt2005/working%20papers.html> (last accessed on 7 February 2007).
 For example United Nations Security Council Resolution 1540 (2004) addresses weapons of mass destruction: SC Res 1540, UN SCOR, 4956th mtg, UN Doc S/Res/1540 (2004).
 Jozef Goldblat, Arms Control: The New Guide to Negotiations and Agreements (International Peace Research Institute and Stockholm International Peace Research Institute, SAGE Publications, 2002) 107.
 For example US Assistant Secretary of States for Arms Control, Stephen Rademaker, in a statement on “US Compliance With Article VI of the NPT” to the Carnegie Endowment for International Peace (3 February 2005), online: <http://www.acronym.org.uk/docs/0502/ doc13.htm> (last accessed on 7 February 2007), stated: “But the language contains no suggestion that nuclear disarmament is to be achieved before general and complete disarmament is achieved. Nuclear disarmament would obviously be an element of general and complete disarmament. At the same time, the text and negotiating history of the NPT support the expectation that efforts toward complete nuclear disarmament would be linked with efforts toward general and complete disarmament. In short, there is a clear relationship between these two objectives”.
 Full title of the Convention is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1015 UNTS 163 (in force 29 April 1997).
 For example: The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, opened for signature 11 February 1971, ATS 1974 no 3 (in force 18 May 1972); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (in force 26 March 1975); Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 18 September 1997, ATS 1999 no 3 (in force 1 March 1999); South Pacific Nuclear Free Zone Treaty, opened for signature 6 August 1985, ATS 1986 no 32 (in force 11 December 1986) (Treaty of Rarotonga); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, opened for signature 18 September 1997, ATS 1999 no 3 (in force 1 March 1999); Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, adopted by GA res 55/255, 31 May 2001, UN Doc A/55/383/Add.2, (in force 3 July 2005).
 See n 11 for details of both conventions.
 Nuclear Test Cases (Australia v France; New Zealand v France) (1974) ICJ Rep, Judgment (Merits), para 46.
 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reps 1996, 226, para 99.
 This view is supported by Miguel Marin Bosch, ‘The Non-Proliferation Treaty and Its Future’ in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, and the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1999).
 NPT Review and Extension Conference, Principles and Objectives for Nuclear Non-Proliferation and Disarmament, Doc NPT/CONF.1995/32/DEC.2 (1995) para 3.
 NPT Review and Extension Conference, Strengthening the Review Process for the Treaty, Doc NPT/CONF.1995/32/DEC.1 (1995).
 NPT Review and Extension Conference, Principles and Objectives for Nuclear Non-Proliferation and Disarmament, Doc NPT/CONF.1995/32/DEC.2 (1995).
 NPT Review and Extension Conference, Resolution on the Middle East, Doc NPT/CONF.1995/32/RES.1 (1995).
 Jayantha Dhanapala and Randy Rydell, Multilateral Diplomacy and the NPT: An Insider’s Account (United Nations Institute for Disarmament Research, 2005) 50–51.
 NPT Review and Extension Conference, Principles and Objectives for Nuclear Non-Proliferation and Disarmament, Doc NPT/CONF.1995/32/DEC.2 (1995) para 4.
 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document Part I, Doc NPT/CONF.2000/28 (2000): article VI and preambular paragraphs 8 to 12, para 15.
 Gunther Handl, ‘A Hard Look at Soft Law’ (1988) ASIL Proceedings 371.
 Malcolm N Shaw, International Law (Cambridge University Press, 2003) 111.
 Bruno Simma, International Human Rights and General International Law: A Comparative Analysis (1995) 4(2) Academy of European Law 234.
 The United States this year tabled a draft treaty text for a fissile material cut-off treaty, see ‘United States of America White Paper on a Fissile Material Cutoff Treaty’ (Press Release, US Mission to the United Nations in Geneva, 18 May 2006, online: <http:// geneva.usmission.gov/Press2006/0518WhitePaper.html> (accessed on 7 February 2007). The CD must agree its programme of work by consensus, which currently includes proposals for discussions on negative security assurances, nuclear disarmament and a treaty on the prevention of an arms race in outer space. The United States refuses to address these issues even in the form of a discussion mandate only.
 Full title is 1972 Agreement Between the USA and the USSR on the Limitation of Anti-ballistic Missile Systems (ABM Treaty). For a report on the United States withdrawal see CNN.com Inside Politics, ‘US quits ABM Treaty’, online: <http://archives.cnn.com/2001/ ALLPOLITICS/12/13/rec.bush.abm/> (last accessed on 7 February 2007).
 NPT Review and Extension Conference, National Report on the Implementation of the Treaty on the Non-proliferation of Nuclear Weapons by the Russian Federation, Doc NPT/CONF.2005/29 (2005).
 NPT Review and Extension Conference, Verification of Nuclear Disarmament: Final Report on Studies into the Verification of Nuclear Warheads and their Components: Working paper submitted by the United Kingdom of Great Britain and Northern Ireland, Doc NPT/CONF.2005/WP.1 (2005).
 Rademaker, above n 9. In this regard, the most telling comment from Rademaker’s statement on United States’ compliance with article VI was: “I’ve been asked today to address U.S. compliance with Article VI of the NPT. Critics of U.S. compliance with Article VI point in many directions to make their case against us, but the one direction in which they almost never point is the text of Article VI itself. One might think this is a bit odd, considering that our legal obligations under the NPT are defined in the Treaty text. But it is also understandable, because even a cursory review of the Treaty text leaves so little doubt about our compliance with the obligations set forth in Article VI that our critics would have little to complain about if they restricted themselves to arguments based on the text of that article. So, typically, they skip over Article VI itself and rely instead on authorities outside the Treaty text itself, such as policy declarations, government pronouncements, and the academic literature”.
 Opinio juris meaning that acts must occur out of a sense of obligation.
 Support for this position is found in the Case of the S S Lotus (France v Turkey) (1927) PCIJ Judgment, Collection of Judgments, Series A No 17 at 28; North Sea Continental Shelf Cases (FRG v Denmark; FRG v The Netherlands) (1969) ICJ Judgment, ICJ Rep 3, paras 73–78; Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (1985) ICJ Judgment, ICJ Rep 13, para 27; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (1986) ICJ Judgment (Merits), ICJ Rep 14, paras 184–186; and Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reps 1996, 226, paras 64–66 and 73.
 (FRG v. Denmark; FRG v. The Netherlands) (1969) ICJ Judgment (Merits) ICJ Rep 3.
 Ibid 3, 42 and 43.
 Rebecca Johnson, ‘Politics and Protection: Why the 2005 NPT Review Conference Failed’ (2005) 80 Disarmament Diplomacy (no page numbers) available at <http://www. acronym.org.uk/dd/dd80/80npt.htm> (last accessed 7 June 2007).
 See Oscar Schachter, ‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71(2) American Journal of International Law 296 where he writes that on the matter of non-binding agreements: “[w]hen other parties make representations or offer criticism about conduct at variance with the undertakings in the agreement, the idea of a commitment is reinforced even if it is labelled as political or moral. We must, however, recognize that non-compliance may be so substantial and widespread as to bring into question whether the agreement is still operative”.
 For example, at the First Committee in 2005, the main resolutions on nuclear disarmament were: Towards a Nuclear Weapon Free World: Accelerating the Implementation of Nuclear Disarmament Commitments, Res A/C.1/60/L.3 (2005); First Committee, Renewed Determination towards the Total Elimination of Nuclear Weapons, Res A/C.1/60/L.28 (2005); and First Committee, Nuclear Disarmament, Res A/C.1/60/L.36 (2005).
 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reps 1996, 226, para 70, the ICJ observed 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”.
 B Sloane, ‘General Assembly Resolutions Revisited (Forty Years Later)’ (1987) 58 British Yearbook of International Law 39.
 Ibid 138.
 Ibid 132.
 The legal opinion was provided in response to a request from the Acronym Institute for Disarmament Diplomacy, the British American Security Information Council and Peace Rights on renewal of the Mutual Defence Agreement, which covers exchanging nuclear information, technology and material between the United Kingdom and United States, see ‘Renewal of US-UK Nuclear Cooperation 'in Breach of NPT' say Eminent Lawyers’, online: <http://www.acronym.org.uk/dd/dd78/78news02.htm> (last accessed on 7 February 2007).
 Ibid para 20.
 Ibid para 19.
 Ibid paras 21–22. Preparatory work can only be taken into account when there is ambiguity or the interpretation of a treaty under article 31 would lead to a manifestly absurd or unreasonable result.
 Ibid para 20.
 New Zealand Statements on Disarmament, ‘Statement by Permanent Representative to the United Nations, New York, Rosemary Banks, to the Conference on facilitating the Entry into Force of the CTBT, 22 September 2005’ online: <http://www.nzmissionny.org/ disarmnt.htm> (last accessed on 7 February 2007).
 Goldblat, above n 8, 107.
 Opened for signature 1 December 1959, 402 UNTS 71 (in force 23 June 1961).
 Opened for signature 5 August 1963, 480 UNTS 43 (in force 10 October 1963).
 See n 11.
 14 February 1967, in force 29 January 1968, available on at <http://www.state. gov/t/ac/trt/ 4796.htm#treaty> (last accessed 7 June 2007).
 SC Res 1172, UN SCOR, 3890th mtg, UN Doc S/Res/1172 (1998), para 3.
 United Nations General Assembly, First Committee, 57th Session, United States’ Explanation of Vote on L4, Comprehensive-Nuclear-Test-Ban: “Mr Chairman, The United States delegation voted ‘no’ on the resolution embodied in document L.4 because the United States does not support the CTBT. As delegations are aware, in October 1999 the U.S. Senate voted not to give its advice and consent to ratification of this agreement. While the Administration has no plans to seek reconsideration of the Senate’s action, let me make clear that the US intends to maintain its moratorium on nuclear testing, in effect since 1992. Further, we urge all states to maintain existing moratoria on nuclear testing”.
 For example, see the Statement by Ambassador Hu Xiaodi, China, on Nuclear Disarmament and Reduction of the Danger of Nuclear War, at Main Committee I of the NPT Review Conference, New York, 19 May 2005.
 For example, at last year’s First Committee the CTBT Resolution received 149 votes in favour, 1 against (the United States), and four abstentions (Colombia, India, Mauritius and Syria).
 SC Res 1718, UN SCOR, 5551st mtg, UN Doc S/Res/1718 (2006).
 First Committee Resolution, Bilateral Strategic Nuclear Arms Reductions and the New Strategic Framework, submitted by the Russian Federation and United States, Res A/C.1/59/L.56 (2004).
 The NAC in an explanation of vote on Russia and the United States’ Resolution A/C.1/59/L.56 submitted to the General Assembly in 2004 stated: “[n]aturally, we acknowledge that reduced deployment is a positive development. At the same time we hold the view that reductions in deployment and operational status cannot replace irreversible cuts in and the destruction of nuclear weapons,” and “while we appreciate the specific information given by the two sponsors, it is of course rather difficult for the UNGA as such, to explicitly recognize the exact numbers and figures, given that there are no possibilities for us to confirm or verify them”.
 GlobalSecurity.org, ‘Nuclear Posture Review’, online: <www.globalsecurity.org/wmd/ library/policy/dod/npr.htm> (last accessed on 7 February 2007). For an NGO analysis see: Robert Civiak, ‘Still At It – An Analysis of the Department of Energy’s Fiscal Year 2007, Budget Request for Nuclear Weapons Activities’, online: <www.trivalleycares.org/ DOEFY07WeaponsBudg.pdf> (last accessed on 7 February 2007).
 Possible legal implications of this research are assessed by Andrew Grotto in an article titled, ‘Nuclear Bunker-Busters and Article VI of the Non-Proliferation Treaty’, American Society of International Law Insight, online: <www.asil.org/insights/2005/02/ insight050217.html> (last accessed on 7 February 2007).
 Submission made by Dr Rebecca Johnson to the Select Committee on Defence, United Kingdom, on 6 March 2006 concerning the House of Commons Defence Committee Recommendations on Trident Replacement – the future of the United Kingdom’s nuclear weapons, ‘Memorandum from Dr Rebecca Johnson’, online: <http://www.publications. parliament.uk/pa/cm200506/cmselect/cmdfence/uc986-i/ucm0402.htm> (last accessed on 7 February 2007).
 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reps 1996, 226, para 98.