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III. Anduchenca did not violate Article 16 of the FCN Treaty.

Anduchenca did not violate Article 16 of the FCN Treaty by commissioning and

operating the nuclear submarine Ibra. Article 16 of the FCN Treaty states that the parties “shall

comply with all disarmament obligations binding on it under international law.” Anduchenca has

no nuclear disarmament obligations binding on it under international law.1

A. Anduchenca is not a signatory of the NPT, and thus has no nuclear disarmament

obligations.

The Nuclear Non-Proliferation Treaty (NPT) is the primary source of nuclear

disarmament obligations in the international community.2 The NPT does not prohibit the

possession of nuclear weapons.3 The NPT has 191 state parties, virtually every nation in the

international community is divided into nuclear-weapon or non-nuclear-weapon State Parties.4

However, Anduchenca is not a party to the NPT.5 Article 34 of the Vienna Convention on the

Law of Treaties(“VCLT”) states: “[a] treaty does not create either obligations or rights for a third

party without its consent.”6 Article 34 of the VCLT is the codification of a fundamental principle

of customary treaty law—pacta tertiis nec nocent nec prosunct.7 Thus, the NPT cannot apply to

1
Anduchenca is not bound by any treaty requiring nuclear disarmament, nor does customary international law
require nuclear disarmament.
2
Treaty on the Non-Proliferation of Nuclear Weapons, 1970, 729 U.N.T.S. 161 (Articles II and VI deal with
disarmament obligations).
3
NPT art. I & art. IX ¶ 3. These define the nuclear-weapon State parties as those that have detonated a nuclear
weapon prior to Jan. 1, 1967. Five states—United States, United Kingdom, Russia (USSR), China, and France—are
allowed to possess nuclear weapons under the treaty.
4
NPT, Status of the Treaty, disarmament.un.org/treaties/t/npt; NPT art. I, II, & IX ¶ 3.
5
C. ¶ 9
6
Vienna Convention on Law of Treaties, Art. 34. The VCLT does not apply to the NPT, due to the non-retroactivity
clause of the VCLT. Vienna Convention on the Law of Treaties art. 4, May 23, 1969, 1155 U.N.T.S. 311. However,
many VCLT articles codify CIL, and while the VCLT is not binding to earlier treaties, it can demonstrate the CIL
that is binding. MARK E. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES 159 (2nd ed. 1997).
7
MARK E. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 467 (2009).

so it does not apply to Anduchenca. Custom as a Source of International Law. Aug.C. Pakistan. The ICJ has stated that finding binding customary international law obligations that originated from treaty-based obligations should not be taken lightly. opinio juris)”).org/10. ¶ 98-100 (July 8). UK.8 Anduchenca has no obligation to nuclear disarmament and has not violated Article 16 of the FCN Treaty. not out of custom. . 73:5.11 The Nuclear Weapon States of the NPT have not made a consistent and enduring practice of achieving their disarmament obligations under Article VI. Black-Branch & Dieter Fleck eds. Art. BULLETIN OF ATOMIC SCIENTISTS. The NPT is not customary international law. 1969 I. and lack of state practice means it is not CIL. 41 ¶ 71 (Feb.15 The development of nuclear weapons by 8 Vienna Convention on Law of Treaties. France.). 10 Michael Akehurst. 31. 15 Hans M. I 95 § 4. Advisory Opinion. 9 North Sea Continental Shelf Case (Ger. Anduchenca is a party to the Vienna Convention on Law of the Treaties.1080/00963402. v. Neth.). and North Korea. ELLI LOUKA. 34. LEPARD. and under Article 34. Judgment. 13 KIMBERLY GILLIGAN. . 2014). Israel. 1996 I.C. Norris. 31 (1976).1363995 (noting that beyond the original five Nuclear States listed in Article I of the NPT—USSR. BRIAN D.3. . v. Worldwide deployments of nuclear weapons. 14 The majority of states that are not bound to the NPT have developed their own nuclear weapons. 226.10 The ICJ has noted that state practice is lacking with regard to Article VI of the NPT. at ¶ 71. 2017. https://doi.3 (Jonathan L. / Ger.J.2017. 289. and China—only four additional nations currently possess nuclear weapons—India. JUSTICE AND THE LAW 155 (2011) (noting that other non-signatories of the NPT who have developed nuclear weapons—India.9 Customary international law requires both state practice and opinio juris. 20). Rep.).J. The Non-Proliferation Regime and the NPT in NUCLEAR NON-PROLIFERATION IN INTERNATIONAL LAW VOL. NUCLEAR WEAPONS. Den. the NPT would have to be considered customary international law. B. 12 Only the Nuclear-weapon State Parties are capable of complying with the goal of total nuclear disarmament mentioned by the ICJ. US. Israel. 14 North Sea Continental Shelf. 2017. CUSTOMARY INTERNATIONAL LAW 6 (2010) (“A customary practice among states can evolve into a customary legal norm binding on all states if (1) the practice is consistent among states and endures over some period of time. For Anduchenca to violate Article 16 of the FCN treaty. and (2) states believe that the practice is legally mandated (. 11 Legality of the Threat or Use of Nuclear Weapons.Anduchenca under treaty law. Other State practice regarding the NPT arises out of an obligation to the treaty. 47 BRITISH YEARBOOK OF INTERNATIONAL LAW. and Pakistan—cannot be in violation of the NPT.12 Article VI is an essential part of the disarmament obligation of the NPT13. the NPT would not create an obligation or right on a third party. because it is not a signatory.3. Kristensen & Robert S.

non-signatories creates a set of parties that do not fit into the NPT dichotomy. and not a custom—thus lacking opinio juris. of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by . 24 NAT’L L. The fact that a State is not prepared to ratify the treaty cannot be without significance in such a situation. the nascent opinio juris. as lex lata. 21 Advisory opinion ¶ 71 22 JAMES A. but a persistent objector as well. The persistent objector rule is a feature of CIL. C. even if they possess nuclear-weapons. . INDIA REV.20 The ICJ has noted that there is lacking opinion juris regarding the illegality of nuclear weapons themselves. 125. the NPT does not create customary international law. 18 Legality of the Threat or Use of Nuclear Weapons. 135 (2012) (noting the scarcity of opinio juris in relation to a customary prohibition on the possession of nuclear weapons). and would not be bound to any CIL based on the NPT. India’s Status as a Nuclear Weapons Power Under Customary International Law.C. 73 (July 8). the opinio juris constituting the ‘accession by way of custom’ has to be unambiguous. THE PERSISTENT OBJECTOR RULE IN INTERNATIONAL LAW 4 (2016) (citing multiple sources specializing in CIL that mention the rule). 20 Id.”). VANHOOF.”18 This lack of opinio juris also applies to the NPT.16 This dichotomy shows that state practice on the part of parties of the NPT is either lacking (regarding article VI) or merely out of their obligation to a treaty. Anduchenca has not violated Article 16 because it has no binding nuclear armament obligations. Green.21 Therefore. Anduchenca is not only a non-signatory of the NPT.J. Advisory Opinion. RETHINKING THE SOURCES OF INTERNATIONAL LAW 109 (1983) (“in the case of multilateral treaty which is open for ratification by all States. I. . 19 James A. 1996 I. GREEN.17 The ICJ has noted that the “emergence. 17 G. Anduchenca has been a persistent objector for the duration of the NPT. NPT art. .19 It is rare for states to explicitly state that the NPT is binding under customary law.J. SCH.22 The persistent objector rule prevents customary law 16 A Country that has developed nuclear weapons after 1967 cannot be considered a nuclear-weapon state by the NPT.H.

the Anduchencan Ministry of Foreign Affairs has explicitly stated that it finds the NPT creates an “inherent inequality between nuclear-weapon and non- nuclear weapon States.. which were the first to include a rule .A. 131 (Dec. Nor.J. Judgment. . it could not be invoked against Peru which. . 25 INTERNATIONAL LAW ASSOCIATION. repudiated it by refraining from ratifying the Montevideo Convention of 1933 and 1939. IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW 27 (May 4 – June 5. has.27 Over the past 50 years.”). 277-78 (Nov. the rule is not opposable to the State concerned for so long as it maintains its objection. 2012) (“The position of the objecting state must be made known internationally. FINAL REPORT: STATEMENT OF PRINCIPLES APPLICABLE TO THE FORMATION OF GENERAL CUSTOMARY INTERNATIONAL LAW 27. Persistent Objector in THE MAX PLANK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW VOL. made known to other States. ¶ 9 . Fisheries Case (U. ¶ 9 28 C.N. 24 INTERNATIONAL LAW COMMISSION.J. 2015) (citing the persistent objector rule in Draft Conclusion 15). 20) (“But even if it could be supposed that such a custom existed . THE PARADOX OF CONSENSUALISM IN INTERNATIONAL LAW 106 (1998) (objecting to the applicability or existence of the rule) .26 Anduchenca has declined to sign. v. 26 OLUFEMI ELIAS.).”).from applying to a state that has objected to the custom from its inception.VIII 284 ¶ 16 (Max Plank ed. . 1968. on the contrary. 1951 I. 18) (“In any event the ten-mile rule would appear inapplicable as against Norway inasmuch as she as always opposed any attempt to apply it to the Norwegian coast.L. 1950 I. Security Council] to comply with the NPT. . § 15 (2000). and maintained persistently. LIM.C. 27 C. a treaty to which we 23 Asylum Case (Colom.25 The objector must be a State that publically and persistently objects to either the applicability or existence of the new norm of customary international law in dispute. . far from having its attitude adhered to it.23 The International Law Commission stated the rule as: (1) Where a State has objected to a rule of customary international law while that rule was in the process of formation. ratify. then the State will not be bound by that rule of CIL. or accede to the NPT since its inception on July 1.C. v.”28 The Ministry of Foreign Affairs has further stated that “Anduchenca cannot be required by [the U. Judgment. O. (2 The objection much be clearly expressed. July 6 – August 7. ELIAS & C.”). Peru).K.24 If a State fulfills these persistent-objector obligations to a rule of CIL.

This fulfills the requirements of the persistent objector rule. and any CIL based on that treaty would not legally bind it.have not subscribed and whose premise we do not accept.30 29 C. ¶ 42 30 Anduchenca is a state that has publically and consistently objected to the NPT since its inception .”29 The commissioning of the Ibra is a continuation of 50 years of consistent and persistent objecting on the part of the Anduchencan government. Anduchenca is a persistent objector to the NPT.