The obligation to conduct and conclude negotiations aimed at nuclear disarmament as a custom in international law

The article explores the international legal foundations of the obligation to conduct and conclude negotiations aimed at nuclear disarmament as a custom in international law. The purpose of the article is to analyze the international legal foundations of the obligation to conduct and conclude negotiations aimed at nuclear disarmament as a custom in international law. Without any pretensions to exhaustiveness, the research we propose reveals in the paper a study of the main trends in international practice regarding the existence in general international law of the obligation to pursue and complete negotiations leading to nuclear disarmament in good faith, taking into account the uncertainties that characterize the establishment of international custom. On the one hand, the prohibition of nuclear weapons would constitute a negative norm non facere, on the other hand, the obligation to negotiate on nuclear weapons would constitute a positive obligation facere. In our study, we have particularly highlighted the activities of the states most concerned, i.e. those with nuclear weapons, because their position is most indicative for the purposes of establishing international custom. In addition, the establishment of international custom requires some caution, especially in light of the uncertainty regarding the relative value of each category of manifestation of international practice in the process of formation of general international law. On July 8, 1996, the UN International Court of Justice issued an advisory opinion on whether the threat or use of nuclear weapons is compatible with international law. The World Court has established that the threat of using nuclear weapons or their use in general is contrary to international law. In this regard, it is precisely those elements that the Marshall Islands point to in their examples that cause some surprise. Thus, the reference to the advisory opinion of the International Court of Justice of the United Nations on the legality of the threat or use of nuclear weapons, where the Court itself seems to have confirmed the existence of an obligation to observe good faith and complete negotiations leading to nuclear disarmament, was interpreted as «an expression of customary international law, which exists today». However, we should not forget the fluctuation of doctrine regarding the role of international jurisprudence in the search for international custom. Similarly, the reference to the resolutions of the General Assembly and the Security Council of the United Nations Organization raises a certain number of questions, taking into account the difficulties that, more generally, concern the meaning of these acts in the development of general international law.