- May 4, 2021
- 2,961
| To: <State Chamber of the International Court of Justice> Global Assembly From: <Sarabun@mot.mail.go.th> Subject: Request for Advisory Opinion on the Legality of Unilateral Strategic Weapons Accountability Policies Security Type: NSST 1.0 Architecture | Secret and Encrypted |
Your Excellency,
I have the honor to bring to your attention a matter of profound significance to international law and the peaceful coexistence of nations. The Government of Thailand, pursuant to Article 14(4)(a) of the Statute of the International Court of Justice, respectfully requests an advisory opinion on several interconnected questions of international law arising from recent developments in state practice regarding weapons proliferation control.
These questions emerge from a policy recently announced by the United States of America, termed "Strategic Accountability," which purports to establish a framework of extended liability for states involved in the manufacture, sale, or transfer of strategic weapons and weapons of mass destruction. This policy raises fundamental questions about the nature of state responsibility, sovereignty, and the limits of unilateral action in international law.
Our concern stems not from any particular bilateral dispute, but rather from the policy's potential to fundamentally alter the established principles of international law regarding state responsibility and sovereign equality. The questions we present touch upon core principles of international law that affect all members of the international community.
The Government of Thailand believes that the Court's guidance on these matters is essential for maintaining the integrity of international law and preventing the erosion of fundamental principles that have governed interstate relations since the Peace of Westphalia. The questions presented implicate several foundational principles of international law, including pacta sunt servanda, sovereign equality, and the prohibition on intervention in matters essentially within domestic jurisdiction.
Our analysis draws particular attention to the Nicaragua case (Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986), which established crucial principles regarding the attribution of state responsibility and the limits of intervention. Additionally, the Corfu Channel case (ICJ Reports 1949) provides essential guidance on the scope of state responsibility in international law.
The specific questions on which we seek the Court’s advisory opinion are:
The Court’s jurisprudence in the Nicaragua case is particularly instructive. The Court held that for the conduct of one state to give rise to legal responsibility of another state, it would need to be proved that the state had “effective control” over the operations. This principle stands in stark contrast to the proposed policy of automatic attribution of responsibility based merely on the original manufacture or sale of weapons.
Moreover, the Nuclear Tests cases (Australia v. France, ICJ Reports 1974) established that while states have certain obligations regarding dangerous activities, these obligations must be based on clear principles of international law rather than unilateral declarations by other states. The proposed policy appears to exceed these established boundaries of state responsibility.
The principle of non-intervention, as articulated in the Corfu Channel case and reaffirmed in numerous subsequent decisions, prohibits states from intervening in matters which international law leaves to the sovereign determination of states. The sale and transfer of conventional weapons, when conducted in accordance with international law, falls squarely within this protected sphere of sovereign authority.
The Court's opinion In the Lotus case (PCIJ Series A, No. 10, 1927) established the fundamental principle that restrictions on state sovereignty cannot be presumed. Any attempt to impose liability on states for the independent actions of third parties must therefore be grounded in established principles of international law rather than unilateral policy declarations.
The potential Implications of this policy extend beyond the immediate context of weapons transfers. If accepted, this precedent could undermine the fundamental principle that state responsibility must be based on a state’s own conduct or on conduct attributable to it under international law. This could lead to a destabilizing expansion of state responsibility that would threaten the predictability and stability of international relations.
We note that existing international legal frameworks, such as the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons (1972), already provide mechanisms for controlling dangerous weapons while respecting sovereign equality and established principles of state responsibility. Any expansion of state responsibility in this area should proceed through multilateral agreement rather than unilateral declaration.
The Court's guidance on these questions would provide essential clarity regarding the limits of unilateral action in establishing new regimes of state responsibility. This clarity is particularly crucial given the potential for such policies to disrupt established principles of international law and create uncertainty in international relations.
We respectfully submit that these questions fall squarely within the Court’s advisory jurisdiction and raise issues of fundamental importance to the international legal order. The questions presented are legal in nature and require the interpretation of existing international law rather than the creation of new obligations.
The Government of Thailand stands ready to provide any additional information or clarification that the Court may require in considering this request.
Please accept, Your Excellency, the assurances of my highest consideration.
Respectfully submitted,
Piyabutr Saengkanokkul
Minister of Justice
Republic of Thailand
These questions emerge from a policy recently announced by the United States of America, termed "Strategic Accountability," which purports to establish a framework of extended liability for states involved in the manufacture, sale, or transfer of strategic weapons and weapons of mass destruction. This policy raises fundamental questions about the nature of state responsibility, sovereignty, and the limits of unilateral action in international law.
Our concern stems not from any particular bilateral dispute, but rather from the policy's potential to fundamentally alter the established principles of international law regarding state responsibility and sovereign equality. The questions we present touch upon core principles of international law that affect all members of the international community.
The Government of Thailand believes that the Court's guidance on these matters is essential for maintaining the integrity of international law and preventing the erosion of fundamental principles that have governed interstate relations since the Peace of Westphalia. The questions presented implicate several foundational principles of international law, including pacta sunt servanda, sovereign equality, and the prohibition on intervention in matters essentially within domestic jurisdiction.
Our analysis draws particular attention to the Nicaragua case (Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986), which established crucial principles regarding the attribution of state responsibility and the limits of intervention. Additionally, the Corfu Channel case (ICJ Reports 1949) provides essential guidance on the scope of state responsibility in international law.
The specific questions on which we seek the Court’s advisory opinion are:
- Is it consistent with international law for a state to impose accountability on other states for the resale, transfer, or use of weapons or related technologies, irrespective of the original seller’s knowledge or intent?
- Does a policy that holds a state accountable for the actions of another state in the resale or misuse of strategic weapons violate the principles of sovereignty and non-intervention under international law?
- To what extent can a state be held responsible for the indirect actions of a third party under customary international law and existing international agreements on arms trade?
- Under international law, what is the threshold for attributing responsibility to a state for weapons it produces but does not directly use?
The Court’s jurisprudence in the Nicaragua case is particularly instructive. The Court held that for the conduct of one state to give rise to legal responsibility of another state, it would need to be proved that the state had “effective control” over the operations. This principle stands in stark contrast to the proposed policy of automatic attribution of responsibility based merely on the original manufacture or sale of weapons.
Moreover, the Nuclear Tests cases (Australia v. France, ICJ Reports 1974) established that while states have certain obligations regarding dangerous activities, these obligations must be based on clear principles of international law rather than unilateral declarations by other states. The proposed policy appears to exceed these established boundaries of state responsibility.
The principle of non-intervention, as articulated in the Corfu Channel case and reaffirmed in numerous subsequent decisions, prohibits states from intervening in matters which international law leaves to the sovereign determination of states. The sale and transfer of conventional weapons, when conducted in accordance with international law, falls squarely within this protected sphere of sovereign authority.
The Court's opinion In the Lotus case (PCIJ Series A, No. 10, 1927) established the fundamental principle that restrictions on state sovereignty cannot be presumed. Any attempt to impose liability on states for the independent actions of third parties must therefore be grounded in established principles of international law rather than unilateral policy declarations.
The potential Implications of this policy extend beyond the immediate context of weapons transfers. If accepted, this precedent could undermine the fundamental principle that state responsibility must be based on a state’s own conduct or on conduct attributable to it under international law. This could lead to a destabilizing expansion of state responsibility that would threaten the predictability and stability of international relations.
We note that existing international legal frameworks, such as the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons (1972), already provide mechanisms for controlling dangerous weapons while respecting sovereign equality and established principles of state responsibility. Any expansion of state responsibility in this area should proceed through multilateral agreement rather than unilateral declaration.
The Court's guidance on these questions would provide essential clarity regarding the limits of unilateral action in establishing new regimes of state responsibility. This clarity is particularly crucial given the potential for such policies to disrupt established principles of international law and create uncertainty in international relations.
We respectfully submit that these questions fall squarely within the Court’s advisory jurisdiction and raise issues of fundamental importance to the international legal order. The questions presented are legal in nature and require the interpretation of existing international law rather than the creation of new obligations.
The Government of Thailand stands ready to provide any additional information or clarification that the Court may require in considering this request.
Please accept, Your Excellency, the assurances of my highest consideration.
Respectfully submitted,
Piyabutr Saengkanokkul
Minister of Justice
Republic of Thailand
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