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Nuclear Powers' Disarmament Obligation under the Treaty on the Non-Proliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions between Soft Law and Hard Law

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Abstract

The Comprehensive Nuclear Test Ban Treaty (CTBT) will not be effective until all the 44 states listed in its Annex 2 ratify it. A special link has been established between the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the CTBT. The disarmament obligation set by Article VI of the NPT, which has not yet been complied with, remains highly controversial. The relevant subsequent practice of the states parties to the NPT shows that the ratification of the CTBT is to be considered the first of the practical steps towards compliance with Article VI. However, as the practical steps do not set any legally binding norms, there is no legal obligation to ratify the CTBT, not even for the 44 states listed in Annex 2 whose ratification is essential. The paper deals with the position of nuclear powers party to the NPT that have not yet ratified the CTBT (most prominently the US and China) and demonstrates that these states should at least provide detailed motivation for their conduct. Otherwise, other states parties to the NPT could consider them as not complying in good faith with Article VI of the NPT and invoke the inadimplenti non est ademplendum rule to justify breaches of their own obligations under the same treaty.

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1 National Research Council, Global Affairs, The Comprehensive Nuclear Test Ban Treaty: Technical Issues for the Unites States, 30 March 2012, available at www.nap.edu. The Committee of Experts states that ‘the United States has the technical capabilities to maintain a safe, secure and reliable stockpile of nuclear weapons into the foreseeable future without nuclear-explosion testing’.

2 For more details, see Arms Control Organization, The Nuclear Testing Tally, available at www.armscontrol.org/factsheets/nucleartesttally.

3 See infra, section 7.

4 According to the Compact, a further agreement was concluded, establishing the Marshall Islands Nuclear Claims Tribunal, with jurisdiction to ‘render final determination upon all claims past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based on, arise out of, or are in any way related to the Nuclear Testing Program’. The Tribunal is still operating: more at www.nuclearclaimstribunal.com.

5 The Robust Near Earth Penetrators are a kind of new generation, remote-controlled nuclear device, to be used against subterranean targets. See A. J. Grotto, ‘Nuclear Bunker-Busters and Article VI of the Non-Proliferation Treaty’, (2005) ASIL Insights, available at www.asil.org/insight050217.cfm.

6 Altogether, the US conducted 1,031 nuclear tests, while 715 tests were carried out by the USSR/Russia, mostly in some nuclear plants in in Kazakhstan. As for the UK and China, they detonated ‘only’ 45 nuclear explosions each. France managed the third most intensive testing activity, detonating 210 explosions.

7 Although based on the same issues, the cases were not joined.

8 Nuclear Tests Case (Australia v. France), Application Instituting Proceedings, 9 May 1973, [1974] ICJ Rep. 26, para. 48. According to France, on the other hand, the fallout had never reached any threshold level and, thus, no damage could be claimed. As the Court did not rule on the merits (see below note 10), no indications were given on this issue.

9 This case is frequently considered to provide authoritative evidence on the admissibility of legally binding unilateral declarations in international law. Actually, the declarations by the French president and the French government were considered mere political statements by the counterparts, as the Australian Attorney General pointed out, in his oral arguments: ‘The recent French Presidential statement cannot be read as a firm, explicit and binding undertaking to refrain from further atmospheric tests. It follows that the Government of France is still reserving to itself the right to carry out atmospheric nuclear tests’ (see supra note 8, at 261, para. 27). The judgment was recently revisited by Eckart C., Promises of States under International Law (2012), 116.

10 The Court's reasoning took into consideration a preliminary question concerning the existence of a real dispute. Hence, having concluded that the case had become meaningless, the Court could avoid ruling not only on the merits, but also on other preliminary issues concerning its jurisdiction.

11 ‘Request for Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974’ in the Nuclear Tests (New Zealand v. France) case, Order of 22 September 1995, [1995] ICJ Rep. 288. The new case was brought to the Court by New Zealand, requesting a re-examination of the situation as France was performing a new tests programme in the Pacific area. The possibility of such a re-examination had been provided for by the previous judgment of 1974. Nevertheless, the Court held that the relevant provision could not apply to the new case, because new tests had been conducted underground, while the 1974 judgment only referred to tests in the atmosphere.

12 See Louka E., Nuclear Weapons, Justice and the Law (2011), 38.

13 For the reasons explained infra, section 7; see Moshaver Z., Nuclear Weapons Proliferation in the Indian Subcontinent (1991), 114. See also Krepon M., ‘Looking Back: The 1998 Indian and Pakistani Nuclear Tests’, (2008) 38Arms Control Today, available at www.armscontrol.org/act/2008_05/lookingback.

14 According to Art. IX of the NPT: ‘Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country’. The same provision, in exactly the same wording, is included both in the PTBT (Art. IV) and the CTBT (Art. IX). For a deeper insight into the situation in the countries mentioned in this paragraph, see Louka, supra note 12, at 134.

15 See UN Security Council, Resolution 1718, UN Doc. S/RES/1718 (2006). In April 2012, NK launched a device said to be meant for civil purposes, but that was rather deemed, by the international observers, to be a ballistic missile capable of delivering nuclear weapons. The operation was indeed a complete failure, as the device fell into the sea soon after the launch. See BBC News, ‘North Korea Rocket Launch Fails’, 13 April 2012, available at www.bbc.co.uk/news/world-asia-17698438.

17 UN Security Council, Resolution 1737, UN Doc. S/RES/1737 (2006).

18 According to Art. IV of the NPT: ‘Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes’. On the position of Iran, see Mousavian H., ‘The Iranian Nuclear Dispute: Origin and Current Options’, (2012) 42 Arms Control Today, available at www.armscontrol.org/epublish/1/159.

19 See B. Kajehpour, R. Marashi, and T. Parsi, ‘Never Give In and Never Give Up: The Impact of Sanctions on Tehran's Nuclear Calculations’, (2013) 10, available at www.niacouncil.org/site/News2?page=NewsArticle&id=9077.

20 The Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelolco), was the first to be concluded, in 1967, and has been in force since 25 April 1969. This treaty served as a model to the next NWFZ treaties: second came the South Pacific Nuclear Weapon-Free-Zone Treaty (Treaty of Rarotonga, 6 August 1985, in force since 11 December 1986); then the Treaty on the Southeast Asia Nuclear Weapon-Free Zone (Treaty of Bangkok, 15 December 1995, in force since 27 March 1997) and the Treaty on the Nuclear Weapon-Free Zone in Africa (Pelindaba Treaty, 11 April 1996, in force since 15 July 2009). The Central Asia Nuclear Weapon-Free-Zone Treaty, (8 September 2006, in force since 21 March 2009) encompasses some states that had nuclear weapons stationed on their territories by the former Soviet Union. So, the treaty provides also for fostering member states’ cooperation in achieving the decontamination of the whole area. The 1995 NPT Extension and Review Conference endorsed the project of establishing a NWFZ in the Middle East: see M. Hamel-Green, ‘Regional Initiatives on Nuclear and WMD-Free Zones: Cooperative Approaches to Arms Control and Non-proliferation’, UN. Doc. UNIDIR 2005/19 (2005).

21 Underground nuclear explosions might seem less alarming, but actually they are no less dangerous than tests above the ground. Indeed, radioactivity can spread in the environment and it surely lingers in the soil: scientists seem to be still uncertain about how long contamination may last.

22 The International Monitoring System (IMS) consists of a large number of monitoring stations, located in the member states, that are all connected with each other, to provide global control. The IMS is based on infrasound and hydroacoustic monitors and functions with the help of seismological and radionucleide laboratories.

23 The IMS is currently managed by the Preparatory Commission for the CTBT Organization: more at www.ctbto.org. After the entry into force of the treaty, the organization will be in charge of the overall control system, being vested also with specific on-site inspection powers, to verify compliance by member states. The IMS can be used also for civil protection purposes, such as collecting and transmitting data related to natural disasters, with special regard to earthquakes and consequent possible tsunami.

24 See 2010 Review Conference of the Parties to the Treaty on Non-Proliferation of Nuclear Weapons (hereinafter NPT Review Conference), The Capacity of the Comprehensive Nuclear-Test-Ban Treaty Verification Regime: Working Paper Presented by Spain on behalf of the European Union, UN Doc. NPT/CONF.2010/WP 55 (2010).

25 On India's objections to the CTBT, see Nawaz M. K., ‘Prospects for the Entry into Force of the CTBT’, (1997) 37 Indian Journal of International Law 79. Both India and Pakistan had previously ratified the PTBT: see Moshaver, supra note 13, at 111 and 123.

26 President Clinton said he was honoured to be the first leader to sign the CTBT, and to have so done using the ‘very same pen’ President Kennedy had used, more than 30 years earlier, to sign the PTBT. See President Clinton's Remarks at the 51st UN General Assembly, 24 September 1996, at www.state.gov/www/global/arms/ctbtpage/president/excerpt.html#3. In his Letter of Transmittal of the Treaty to the Senate the president stated that the CTBT's conclusion was to mark ‘the achievement of the highest priority item on the international arms control and non proliferation agenda’. Available at www.state.gov/www/global/arms/ctbtpage/treaty/ltr_tran.html.

27 For a deeper analysis, see D. H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty (2011), 40.

28 Remarks by Secretary of State Hillary Rodham Clinton to the 2010 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, 3 May 2010, available at www.state.gov/secretary/rm/2010/05/141424.htm. About the changes in US policy under the Obama administration, see Joyner D. H., Recent Developments in International Law Regarding Nuclear Weapons, (2011) 60 ICLQ 209.

29 See K. Kubiak, CTBT Hold-Out States: Why Did ‘the Longest Sought, Hardest Fought Prize in Arms Control History’ Still Not Enter into Force?, IFAR Working Paper 16, available at www.ifsh.de/IFAR/serv_bp.htm.

30 This opinion is supported by Den Dekker G., ‘Forbearance Is Not Acquittance: The Legal Status of the Comprehensive Nuclear Tests Ban Treaty’, (2000) 13 LJIL 669.

31 Otherwise, the same act of ratification would be meaningless. There is no practice showing positive application of Art. 18: see Palchetti P., ‘Article 18 of the 1969 Vienna Convention: A Vague and Ineffective Obligation or a Useful Means for Strengthening Legal Cooperation?’, in Cannizzaro E. (ed.), The Law of Treaties beyond the Vienna Convention (2011), 25 at 29.

32 In particular, by means of the PTBT and of treaties establishing NWFZ. Specific norms banning nuclear explosions can be found also in the Antarctic Treaty (Art. V) and in the Treaty on the Outer Space (Art. IV).

33 For the purposes of the NPT ‘a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’ (Art. IX(3)).

34 According to Art. I, NWS party to the treaty simply undertake ‘not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices’.

35 2000 NPT Review Conference, Final Document, UN Doc. NPT/CONF.2000/28 (Parts I and II) (2000), at 14, para. 15(1). The next 12 steps are set as follows: ‘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 …; 4. The necessity of establishing in the Conference on Disarmament an appropriate subsidiary body with a mandate to deal with nuclear disarmament; 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 total 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; 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; 10. Arrangement by all nuclear weapon States to place, as soon as predictable, fissile material designated by each of them as no longer required for military purposes under IAEA or other relevant international verification … to ensure that such material remains permanently outside of military programs; 11. Reaffirmation that the ultimate objective of States in the disarmament process is complete disarmament under effective international control; 12. Regular reports by all States parties on the implementation of art. VI; 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’. See ibid., at 14–15, para. 15(2–13).

36 See, among others, 2010 NPT Review Conference, Elements for a Plan of Action for the Elimination of Nuclear Weapons: Working Paper submitted by the Group of the Non-Aligned States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, UN Doc. NPT/CONF/2010/WP.47 (2010), para. 2, calling for full implementation of the 13 steps ‘in accordance with the principles of transparency, verifiability and irreversibility’; 2010 NPT Review Conference, Nuclear Disarmament: France's Firm Commitment –Implementation by France of the ‘13 Practical Steps’ Contained in the Final Document 2000 Review Conference, UN Doc. NPT/CONF/2010/WP.44 (2010); see also the Working Paper by the EU, supra note 24.

37 2010 NPT Review Conference, Final Document, UN Doc. NPT/CONF.2010/50 (Part I) (2010), para. 83.

38 See Preparatory Committee for the 2015 NPT Review Conference, Comprehensive Nuclear-Test-Ban Treaty, Working Paper submitted by Australia, Austria, Canada, Denmark, Finland, Hungary, Ireland, the Netherlands, New Zealand, Norway and Sweden (the Vienna Group of Ten), UN Doc. NPT/CONF.2015/PC.I/WP.4 (2012), para. 1 (emphasis added).

39 The only binding resolution being the one on the indefinite extension of the NPT, in 1995. The different nature of such a decision is due to the same Art. X(2) of the NPT, by means of which NPT parties gave their advance consent to this procedure to be followed for the indefinite extension.

40 Infra, section 10.

41 See ILC, First Report on Subsequent Agreements and Subsequent Practice in Relation to Traties, Report of the International Law Commission on the Work of Its Sixty-Fifth Session (Geneva, 6 May–7 June and 8 July–9 August 2013), UN Doc. A/CN.4/660, 27. See also Gathii J. T., ‘The Legal Status of Doha Declaration on TRIPS and Public Health under the Vienna Convention on the Law of Treaties’, (2002) 15 Harvard Journal of Law & Technology 291, at 310.

42 As the ICJ held, the obligation to negotiate bona fide implies that the parties ‘are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation … they are under an obligation so to conduct themselves that the negotiations are meaningful’. See North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 47, para. 85.

43 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at 264 para. 99.

44 The Court held it was necessary to address this issue, given the particular difficulty of applying the rules on the use of force and the law of armed conflicts to cases involving nuclear weapons: ‘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’ (ibid.).

45 2010 NPT Review Conference, Follow-Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons: Legal, Technical and Political Elements Required for the Establishment and Maintenance of a Nuclear-Weapon-Free World. Working Paper submitted by Costa Rica and Malaysia, UN Doc. NPT/CONF.2010/WP.72 (2010),

46 See Matheson M. J., ‘The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons’, (1997) 91 AJIL 417, at 434; Ford C. A., ‘Debating Disarmament: Interpreting Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons’, (2007) 14 Non-Proliferation Review 401, at 409.

47 As the drafters of the article chose to avoid identifying any specific step to be taken towards disarmament, trying to do so – as the ICJ did in its opinion – would ‘amount to a little more than historical revisionism’. See Ford, ibid.

48 According to C. A. Ford, the decision to mention in Art. VI ‘merely the pursuit of negotiation in good faith acknowledges the reality that a party may honestly try, but fail – perhaps through no fault of its own, such as in the event of a failure of good faith by other parties – to bring about a meaningful negotiation or agreement’. See ibid., at 403. The interpretation thus inferred from the preparatory work is at least questionable, not to mention that other scholars reach totally different conclusions, on the basis of the same preparatory works. See Shaker H. I., The Nuclear Non-Proliferation Treaty: Origin and Implementation, 1959–1979 (1980), at 564.

49 Ford concludes: ‘The negotiating record could hardly be clearer, therefore, that specific disarmament steps are not required by Article VI’ (emphasis added). See ibid., at 407.

50 1969 VCLT, Art. 32.

51 According to the ICJ, Art. 31 of the VCLT codifies international law. See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, [2002] ICJ Rep. 625, at 645, para. 37.

52 ILC Draft Articles on the Law of Treaties with Commentaries, 1966 YILC, Vol. 18 II, at 221.

53 Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Jurisdiction of the Court, Judgment of 2 February 1973, [1973] ICJ Rep. 3, at 18, para. 34. According to the Court, in that case, ‘Iceland has derived benefits from the executed provisions of the agreement’ and, being so, ‘it then becomes incumbent on Iceland to comply with its side of the bargain’. In the Temple case the Court held that as Thailand, for more then fifty years, had enjoyed the benefits conferred on it by a treaty concluded in 1904 with France ‘it is not now open to Thailand, while continuing to claim and enjoy the benefits of the settlement, to deny that she was ever a consenting party to it’. See Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep. 6, at 32.

54 See 2010 NPT Review Conference, Article V, Article VI and the Eighth to Twelfth Preambular Paragraphs of the Comprehensive Nuclear-Test-Ban Treaty, Working Paper submitted by Australia, Austria, Canada, Denmark, Finland, Hungary, Ireland, the Netherlands, New Zealand, Norway and Sweden (‘the Vienna Group of Ten’), UN Doc. NPT/CONF.2010/WP.16 (2010) para. 1.

55 The areas of negotiation are separate with no conditionality or sequencing connecting them. See Joyner, supra note 27, at 102.

56 Such words – in French, Spanish, Russian, and Chinese – are, respectively: traité, tratado, договор and 條約.

57 Laguna del Desierto (Argentina/Chile) case, (1994) 113 ILR 1. See Shaw M. N., International Law (2008), 934.

58 On bilateral instruments for nuclear arms control see Louka, supra note 12, at 346. See also Den Dekker G., The Law of Arms Control (2001), 49.

59 Arms control efforts are ‘designed by policy to effect a limitation or reduction of their subject weapons technologies, but do not intend nor are designed by policy to achieve complete elimination of those weapons’. On the other hand, disarmament efforts ‘are part of such a policy program … even if that program is to be implemented through multiple, progressive steps’. See Joyner, supra note 27, at 36.

60 The US spends more than $7 billion annually on its Stockpile Stewardship Program, which includes nuclear weapons surveillance and maintenance. See Project for the Comprehensive Nuclear Test Ban Treaty, Stockpile Stewardship under the CTBT, available at www.projectforthectbt.org/stockpile.

61 According to the Joint Statement by the Delegations of the Russian Federation and the United States of America on New START, by concluding the treaty ‘Russia and the United States have once again demonstrated their unwavering commitment to fulfilling their obligations under article VI of the Treaty on the Non-Proliferation of Nuclear Weapons’. See 2010 NPT Review Conference, Note Verbale dated 13 May 2010 from the Delegations of the Russian Federation and the United States of America addressed to the President of the Conference, UN Doc. NPT/CONF.2010/WP.75 (2010).

62 See, for instance, the latest document submitted to the Preparatory Committee for the 2015 NPT Review Conference, Working Paper presented by the Group of Non-Aligned States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Security Assurances against the Use or Threat of Use of Nuclear Weapons, UN Doc. NPT/CONF.2015/PC.I/WP.23; see also 2010 NPT Review Conference, Working Paper submitted by Egypt on behalf of Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden as Members of the New Agenda Coalition, UN Doc. NPT/CONF.2010/WP.8 (2010), para. 1.

63 Case Concerning the Gabcicovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 7, at 38, para. 46.

64 See Shaker, supra note 48, at 564; Joyner, supra note 27, at 26). According to N. A. Wulf (‘Misinterpreting the NPT’, (2011) 41 Arms Control Today, available at http://www.armscontrol.org/2011_09/Misinterpreting_the_NPT), no quid pro quo connection can be established between obligations provided for in the NPT. The article harshly criticizes the views expressed by D. H. Joyner in his book.

65 The author devoted in-depth research to the issue. See Pietrobon A., Il sinallagma negli accordi internazionali (1999), 177.

66 Good faith is the essential requirement in the interpretation of treaties. See M. E. Villiger, ‘The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage? The “Crucible” Intended by the International Law Commission’, in Cannizzaro, supra note 31, 105 at 108.

67 According to Art. 60 of the Vienna Convention, this rule applies to multilateral treaties ‘of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty’. Disarmament and non-proliferation treaties are included in such a category.

68 See the working papers submitted by the Islamic Republic of Iran: 2010 NPT Review Conference, Nuclear Disarmament, UN Doc. NPT/CONF.2010/WP.49 (2010); 2010 NPT Review Conference, The Issue of Non-Compliance with Articles I, III, IV and VI of the Treaty, UN Doc. NPT/CONF.2010/WP.62 (2010); Preparatory Committee for the 2015 NPT Review Conference, Nuclear Disarmament: Working Paper Submitted by the Islamic Republic of Iran, UN Doc. NPT/CONF.2015/PC I/WP.32 (2012).

69 Supra, note 43.

70 The same provision, in each treaty (see supra note 14), states that the withdrawal notice ‘shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests’ (emphasis added).

71 According to the EU, ‘CTBT forms an essential part of the nuclear disarmament and non-proliferation regime’. See 2010 NPT Review Conference, Council Decision 2010/212/CFSP of 29 March 2010 relating to the Position of the European Union for the 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons: Working Paper submitted by Spain on behalf of the European Union, UN Doc. NPT/CONF.2010/WP.31 (2010) 5.

72 Even before its negotiations started, the CTBT was eagerly anticipated as a most important non-proliferation measure ‘parallel to the NPT’ and that would ‘readjust the deficit in the balance sheet’ between NWS and NNWS, with respect to their obligations under Art. VI. See Shaker, supra note 48, at 632.

73 According the new 2010 START treaty, only the two parties will be entitled to claim respect for the reciprocal disarmament obligations and, so, to ask for inspections or other verification measures provided for by the agreement. As the UN General Assembly reiterates, ‘bilateral negotiations can never replace multilateral negotiations’ towards the nuclear disarmament goal. See UN General Assembly, Nuclear Disarmament, UN Doc. A/RES/66/51 (2012), 3; see also UN General Assembly, Promotion of Multilateralism in the Area of Disarmament and Non-Proliferation, UN Doc. A/RES/66/32 (2012). Several member states, inter alia the UK and the US, voted against the adoption of the second resolution.

74 Notwithstanding the precedent in favour of the binding character of unilateral declaration, unilateral negative security assurances are not considered to be ‘as binding as a treaty’. See Eckart, supra note 9, at 161.

75 As President Clinton already pointed out in his Letter to the Senate in 1999 (supra note 26), joining the CTBT would not affect the national security level, nor the possibility of retaining strategic nuclear forces ‘sufficient to deter any future hostile foreign leadership with access to strategic nuclear forces from acting against our vital interests and to convince it that seeking a nuclear advantage would be futile’. The president stressed that national security interests could find a valuable safeguard in the ‘supreme interests’ (withdrawal) clause, so that if ‘the safety or reliability of a nuclear weapon type critical to the Nation's nuclear deterrent could no longer be certified without nuclear testing … the President will be prepared to exercise our “supreme national interests” rights under the Treaty’.

76 See Louka, supra note 12, at 231.

* Associate Professor of International Law, University of Padova [].

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