One question we must ask is, what does it mean to pursue negotiations in good faith?
Negotiation in Good Faith in International Law
Under US labor law, negotiating in good faith in the context of a relationship between a union and an employer is only procedural in nature. It only means that the union and the employer must meet regularly, must behave reasonably towards each other, must not take actions such as strikes or lockouts or firings that undermine the negotiations, that undermine the relationship that pre-exists and that they are trying to keep going.
International law, in contrast, goes beyond the requirement of procedural good faith. International law says, when you are assessing whether there has been good faith in negotiations, you also look to the results achieved. You look to the substantive outcome. There was a case at International Court of Justice (ICJ) concerning a treaty commitment to build a dam and carry out related environmental remediation, a case involving Hungary and Slovakia. In deciding the case and telling the parties to go back and negotiate some more on the dam issues, the Court said that the "principle of good faith obliges the Parties to apply [the treaty] in a reasonable way and in such a manner that its purpose can be realized".1 So good faith required looking to the purpose of the treaty.
In the North Sea Continental Shelf Cases, which involved a question of boundaries (many of the cases decided by the ICJ have concerned boundaries), the Court said that the parties must conduct themselves so as to make the negotiations "meaningful, which will not be the case when either insists upon its own position without contemplating any modification of it".2
International law in general with respect to good faith negotiations requires first of all that you enter into the negotiations, that you consider proposals of the other side, and that you re-examine your own position in order to reach the objective of the negotiations. Here I'm drawing on some excellent research done by IALANA lawyers and law students in the Netherlands,3 some of whom are here today. IALANA is the International Association of Lawyers Against Nuclear Arms, and the Lawyers' Committee on Nuclear Policy is its US affiliate.
Now for Article VI. A distinction is sometimes drawn in international law between two kinds of obligations. There is an obligation of conduct, which refers to performing or refraining from a specific action. For example, there may be an obligation of conduct requiring negotiations. The second kind of obligation is an obligation of result. There is an obligation in a treaty or other instrument that requires a state by some means to bring about a certain outcome. In interpreting Article VI in its advisory opinion, the International Court of Justice said that Article VI involves both kinds of obligation: an obligation of conduct, that is engaging in negotiation, and an obligation of result, that is achieving complete nuclear disarmament.
The Court stated regarding Article VI:
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.
Where did the ICJ find these two obligations? In Article VI itself, there is some reference to a result - it refers to nuclear disarmament - as well as to good-faith negotiation. In addition, one of the Treaty's preambular paragraphs refers to the "elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a treaty on general and complete disarmament under strict and effective international control". So that's the narrow answer to where the Court found the obligation of result - the obligation, as stated in the Court's unanimous formal conclusion, to "bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control".
The larger answer is that the Court really felt that the issue, the legality of threat or use of nuclear weapons, could not be satisfactorily addressed, that the law was not good enough to allow the Court to reach a definitive conclusion. I'm sure people know that the Court said that the threat or use of nuclear weapons is generally illegal. But obviously the Court itself was not satisfied with this outcome and so it went on to say, in our view and applying the law, the best solution is to go forward to complete nuclear disarmament and, furthermore, this is what is required by a proper interpretation of the NPT.
Non-Compliance With Article VI
For this audience, I do not need to go into detail why the Lawyers' Committee on Nuclear Policy would say, and most NGOs would say, that the obligation set forth in Article VI, which was affirmed by the ICJ, is not being met. Let me review briefly the elements of that analysis.
First, there are no multilateral negotiations on nuclear disarmament or any aspect of nuclear disarmament going on at the Conference on Disarmament in Geneva or anywhere else. This winter in Geneva, the United States said that beyond negotiations on a fissile materials treaty it is prepared only "to discuss, in a suitable context, outer space issues and questions related to the long term goal of nuclear disarmament" and that "proposals for negotiations now in these fields are clearly not a basis for consensus".4 The United Kingdom, the United States, Russia, and France all say they are not prepared to start negotiations in Geneva on a program for the elimination of nuclear weapons within a timebound framework. Also in the General Assembly, those states have voted against the resolution following up on the ICJ opinion calling for multilateral negotiations leading towards the early conclusion of a convention prohibiting and eliminating nuclear weapons.
A second point is the inadequacy of US-Russian negotiations. Even if START II and START III enter into force, which is very much in doubt because of the ABM Treaty issues, and are implemented, a decade from now Russia and the US will retain on the order of 2,000 deployed strategic warheads each, plus thousands of additional tactical, spare and reserve warheads.
The third point is perhaps not as well known. In authoritative national policy statements, not of the kind that we hear at the UN, the United Kingdom, France, the United States, and Russia make very clear that they intend to retain sizeable nuclear forces and to hold to the policy of deterrence for the foreseeable future.
The 1998 British Strategic Defence Review says that "nuclear deterrence still has an important contribution to make in ensuring against the re-emergence of major strategic military threats, in preventing nuclear coercion and in preserving peace and stability in Europe", that the United Kingdom is going to "retain and exercise the manufacturing skills that will be needed to maintain Trident warheads for the next 20 to 30 years", and that "it would be premature to abandon a minimum capability to design and produce a successor to Trident should this prove necessary".