The Nuclear Non-Proliferation Treaty (NPT) came into force in 1970 after several negotiations at the Eighteen Nations’ Disarmament Committee of 1961. As of date nearly 191 countries are signatories. It classifies five States as Nuclear Weapon States (NWS)- China, France, Russia, the United Kingdom and the United States. India however, despite having a nuclear stockpile is not classified as a NWS, but as a Non-Nuclear Weapon State (NNWS). India began nuclear exploration, after enforcement of the NPT on 1 January, 1967 and by application of Article IX paragraph 3, was classified as an NNWS. This classification was established so as to differentiate between the two classes of States and define the relationship between them. However, it has been largely observed that NNWS classified States are placed at a disadvantage compared to the NWS, especially since those classified as NWS are allowed to continue to maintain their nuclear arsenal[1]. This complicates India’s position considering it is a nuclear power classified as an NNWS bound by that class’ restrictions. Its nuclear stockpile to safeguard its interests from its neighbours would have to meet NPT restrictions, which would effectively mean stripping it of its nuclear weapons. It has expressed its distaste of such differential treatment publicly arguing that the NPT sought to establish a “status quo in favour of the then 5 existing nuclear weapon states, while imposing disarmament on the rest”[2]. Consequently, India has refrained from signing the Treaty and continues to maintain a nuclear arsenal.
Since Treaty enforcement, scholars have argued that non-proliferation obligations arising out of the Treaty, under Articles II and VI, have come to be ingrained into customary international law (CIL). Thus, non-signatory States like India would have to adhere to Articles deemed to be CIL, regardless. However, India followed the persistent objector route to maintain its immunity from being bound by such Articles. However, it is our argument that India is not a persistent objector but a subsequent objector. Only when a State persistently objects to an obligation crystallising into a CIL at its nascent stages, can it legitimately claim persistent objector status[3]. Through this paper it will be highlighted that India began objecting only after Articles II and VI crystallised into CIL, making it a subsequent objector.
Article II and VI as CIL
A legal provision is said to attain CIL status if it is established as being followed by a number of States and is backed by opinion juris (States’ belief of following a norm). Article II is the central NPT provision advocating disarmament. It attains CIL status as, nearly 191 States are signatories indicating widespread following. States’ commitments to disarm rather than proliferate nuclear arms at international forums, reflects opinion juris[4]. States have also publicly affirmed this CIL status- Venezuela at the 1998 Conference on Disarmament repeatedly affirmed the same[5]. The United Nations Security Council as well has imposed sanctions on the Democratic People’s Republic of Korea in its Resolution 1874 of 12 June 2009, despite it having withdrawn from nuclear proliferation treaties. Further, UNGA resolutions have been opined by the Nicaragua judgement[6] that opinio juris can be deduced from General Assembly resolutions. This was even stated in ICJ’s Advisory Opinion, wherein they stated that even though UNGA’s resolutions are not binding, they can provide important evidence of emergence of opinio juris[7]. Thus, Article II can be said to have been established as CIL from 1997-8.
Article VI obligates all States to in “good faith” negotiate to permanently disarm themselves. After the aforesaid ICJ’s advisory opinion, UNGA on 10 January 1997 adopted in its unanimous Resolution 51/45 M, established that there exists the good faith obligation to negotiate to permanently disarm, and called upon all States to fulfil the same immediately prohibiting the development, testing, production, deployment, transfer, stockpiling, threat, or use of nuclear weapons, thus providing for its elimination[8]. As established earlier, UNGA resolutions create opinio juris, thus laying down Article VI as CIL from 1997. In the Marshall Islands[9] case as well, nuclear disarmament was argued to be CIL. Thus, if India kept stockpiling weapons quantitatively or qualitatively (by entering into negotiations furthering nuclear stockpiling), it dissuades other NNWS to fulfil obligations under Article VI. Drawing from such international jurisprudence, Article VI exists as a customary international norm, binding non-signatories. India, as it argued in the Marshall Islands case, continuously kept stockpiling weapons for deterrence, quantitatively and qualitatively, which is in contravention to Article VI’s good faith negotiations principle.
India’s persistent objector status
Considering Article II and VI have garnered CIL status, India “persistently objected” by proclaiming the “no-first use” policy and adopting the Credible Minimum Deterrence doctrine as customary State practice, whose first appearance came in 1999[10]. These policies proclaim that nuclear weapons are developed solely for combatting external aggression and would never be utilised unprovoked (Doctrine of Deterrence), especially considering its two neighbours China and Pakistan, both of whom possess nuclear arsenals. In its Working Paper to the Conference of Disarmament it succinctly laid down and made clear its persistent objector status[11]. Thus, it is seen that by carving out a special sphere for itself within CIL, through the use of State policies, it has been able to maintain a nuclear stockpile to defend against its NWS neighbours, without facing sanctions.
However, as previously argued, India does not in fact hold this persistent objector status by virtue of discrepancies in the timeline for when CIL for these two Articles evolved and from when India began objecting to the principles delineated in Articles II and VI. As previously iterated, the persistent objector route can be followed only when a State consistently objects to that obligation from the time it begins to evolve as CIL. If States begin to object after an obligation has been established as CIL, it would spell chaos for the international legal order. From India’s practices as seen and as will be argued, it is highlighted that it began objecting only after Articles II and VI were established as CIL, that is 1999, rendering its objector stance completely nugatory.
Does India possess persistent objector status?
India’s conduct in international forums suggests it is not a persistent objector. It continuously rejected nuclear armament even for deterrence, and not just for first use, which is a policy that it developed only in recent times (1999, credible minimum deterrence). Its stance on nuclear disarmament not even for deterrence was established in 1964, when it suggested a treaty for non-proliferation of nuclear weapons, for the agenda of the Nineteenth session of the United Nations General Assembly (UNGA).[12] However, in 1967, India argued for peaceful underground test on nuclear energy in Geneva’s disarmament deliberation, which later led to adoption of the NPT.[13] Consequently, India argued during the negotiations for NPT the issue of NNWS’s right to conduct explosions for peaceful purposes, which was denied outright on the ground that both peaceful and weapon explosions use the same underlying technology.[14] This was one of the main reasons India did not ratify the NPT. India while negotiating the treaty had categorically said that NPT should prevent increase, firstly, in the number of nuclear weapon powers, and secondly, in the stock of nuclear weapons already possessed by the existing NWS, evident from the travaux of the treaty.[15]
Further, India in its Written Statement to the International Court of Justice on the legality of threat and use of nuclear weapons submitted that there should be permanent disarmament under CIL.[16] It argued that no state can threaten or use nuclear weapons for any reason including self-defence.[17] Henceforth, according to it, deterrence should not be a successful defence, because if allowed it would lead the world to be in perpetual fear of nuclear-war. NWS would continue to make more destructive weapons and NNWS to build them in deterrence.[18] It even considered manufacturing as illegal under CIL.[19] Thus, it clearly broke its State practice of Credible Minimum Deterrence which was the basis of its persistent objector position. The ICJ laid down the stones that led Article VI of the NPT as having CIL status.[20] Further, India was one of these states that unanimously accepted the UNGA resolution, which adopted Article VI for all states, showing its opinio juris towards the same. Through each of its above actions, it failed to maintain its persistent objector status against the CIL which was being established by way of the ICJ judgement.
Conclusion
Henceforth, in this paper we have shown that Article VI and Article II had become CIL at/before 1998. By this time, India’s stance as seen from the above arguments, was established firmly on permanent disarmament, which included opposing the doctrine of deterrence. The first instance of India’s no first use policy can be seen only from 1999, which is after the custom had already been established as CIL in the international legal order. From this we can objectively conclude that India is a subsequent objector at best, rather than a persistent objector and cannot legitimately claim to enjoy such immunity.
[1]Ilka Pastinen, ‘Nuclear Proliferation and the NPT’ (1975) UN Press Release, Secretary General <https://www.iaea.org/sites/default/files/publications/magazines/bulletin/bull19-4/19403502039.pdf > accessed 24 December 2023..
[2]Amb. Bhaswati Mukherjee, ‘India’s multilaterla engagements in her quest to strengthen international peace and security’ (MEA, Distinguished Lectures Details, 05 February 2016) <https://www.mea.gov.in/distinguished-lectures-detail.htm?393#:~:text=India%20rejected%20the%20Nuclear%20Non,a%20heightened%20state%20of%20alert> accessed 24 December, 2023.
[3] James A Green, The Persistent Objector Rule in International Law (2016 OUP).
[4] James A Green, ‘India’s Status as a Nuclear Weapons Power under Customary International Law’ National Law School of India Review, vol. 24, no. 1, 2012, pp. 125–46. JSTOR, <http://www.jstor.org/stable/44283753> accessed 12 December 2023.
[5] Ibid 135.
[6] Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, Judgement, ICJ Reports 1986, p. 100, para 188.
[7] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1.C.J. Reports 1996), pp. 254-255 [70].
[8] United Nations General Assembly, ‘RESOLUTIONS ADOPTED by the GENERAL ASSEMBLY’ (documents-dds-ny.un.org10 January 1997) <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N97/760/51/PDF/N9776051.pdf?OpenElement> accessed 25 December 2023.
[9] Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 255.
[10] Ministry of External Affairs, Draft Report of National Security Advisory Board on Indian Nuclear Doctrine, (1999) 2 <https://www.legal-tools.org/doc/70efe4/pdf/#:~:text=India%20shall%20pursue%20a%20doctrine,the%20needs%20of%20national%20security> accessed 24 December 2023.
[11] Conference on Disarmament, Working Paper for the Conference of Disarmament, (2007) <https://meaindia.nic.in/cdgeneva/?pdf0610?000> accessed 24 December 2023.
[12] BN Chakravarty, ‘A/5758’ (undocs.org10 October 1964) <http://undocs.org/A/5758> accessed 25 December 2023.
[13] Κ. Subrahmanyam. “The Indian Nuclear Test in a Global Perspective.” Strategic Analysis, 11 May 2023, pp. 1–16, <https://doi.org/10.1080/09700161.2023.2203076> accessed 11 Oct. 2023.
[14] Ibid.
[15] ‘Political and Security Questions DISARMAMENT and RELATED MATTERS’ <https://cdn.un.org/unyearbook/yun/chapter_pdf/1967YUN/1967_P1_SEC1_CH1.pdf> accessed 25 December 2023.
[16] Khosla, I.P., ‘Letter dated 20 June 1995 from the Ambassador of India together with Written Statement of the Government of India’, (1995) Registrar, International Court of Justice <https://www.icj-cij.org/sites/default/files/case-related/95/8688.pdf> Accessed on 2 October 2023.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] International Court of Justice (n 6) 226.
Author: Anushka Vinay Kumar
University and Year: Jindal Global Law School, 2021-2026
Programme: Ba LLB
LinkedIn Page Link: https://www.linkedin.com/in/anushka-vinay-kumar-a0094b225?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=ios_app
Co-Author:Gauri Goel
University and Year: Jindal Global Law School, 2021-2026
Programme: Ba LLB