Disarmament and Non-Proliferation:
Published by the Lawyers Committee on Nuclear Policy,
April 2000 Volume 2, Number 1
The NPT Still in Trouble
The Treaty on the Non-Proliferation of Nuclear Weapons was negotiated on the basis of successive draft treaties submitted by the USSR and USA in the Eighteen Nation Committee on Disarmament. The final text was submitted to the UN General Assembly and approved by it on June 12, 1968. One week later, the UN Security Council adopted resolution 255 on security assurances to non-nuclear weapon states (NNWS), and on July 1, the treaty was opened for signature.
The NPT contains no provision for any machinery to supervise the implementation of the treaty. The NNWS were to be subjected to IAEA safeguards, but the nuclear-weapon states (NWS) and all other parties undertook in article VI "to pursue negotiations in good faith" for nuclear disarmament. The NNWS had succeeded in achieving some measure of accountability by carefully choosing wording in article VIII.3 which provided for the holding of quinquennial conferences to review the operation of the Treaty "with a view to ensuring that the purposes of the Preamble and the provisions of the Treaty are being realized."
The 1995 Review and Extension Conference, which decided on the indefinite extension of the Treaty, also decided to strengthen the review process which should "look forward as well as back." It also decided on a list of 20 Principles and Objectives for nuclear non-proliferation and disarmament, and adopted a resolution on the Middle East.
Since the 1995 review conference, there have been very few positive developments that could strengthen the non-proliferation regime. There were two outstanding achievements: the Advisory Opinion of the International Court of Justice (ICJ) of July 8, 1996, on the Legality of the Threat or Use of Nuclear Weapons, and the adoption on September 10, 1996 by the General Assembly of the Comprehensive Nuclear Teat Ban Treaty (CTBT). Another positive event was the belated ratification by the Russian Duma on April 14, 2000, of the START II Treaty of January 3, 1993, which is dealt with below.
The historic Advisory Opinion of the ICJ decided unanimously that there is an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects. President Bedjaoui stated that, in view of the "formal unanimity in this field," the obligation has the force of customary international law.
The General Assembly has adopted by overwhelming majorities more than a dozen resolutions since 1996 calling for negotiations on nuclear disarmament and the establishment by the Conference on Disarmament of an ad hoc committee to conduct the negotiations, but all to no avail. The NWS simply refuse to begin any multilateral negotiations on nuclear disarmament. There are also no negotiations among the NWS who now seem to be divided among themselves.
The CTBT, whose adoption was hailed as a great achievement by nearly all members of the UN, has been signed by 155 states and ratified by 55, including 28 of the list of 44 states required for its entry into force. The Treaty, however, has suffered two serious setbacks the series of nuclear weapons tests conducted by India and Pakistan in May 1998, and the rejection of the treaty by the U.S Senate in October 1999. While the Preparatory Commission for CTBT Organization is forging ahead to complete the structure of the Organization, the Treaty is left in something of a limbo until its entry into force.
Despite the ICJ decision that there is an obligation under the NPT to conduct and conclude negotiations for nuclear disarmament, the nuclear weapon states simply refuse to begin any multilateral negotiations.
As regards the other decisions of the 1995 Conference, there has been little or no progress and the non-proliferation regime appears to be in serious trouble. The strengthened review process has not enhanced accountability and, as was demonstrated by the continuing deadlock at the Preparatory Committee meetings for the Review Conference, the list of 20 Principles and Objectives remain practically unimplemented and there are no substantive recommendations from the Preparatory Committee meetings.
As for the Conference on Disarmament, it has once again failed to agree on a program of work.
One could set out a long list of failures and negative developments since 1995 but this essay is confined to a few of the more serious ones that threaten the entire interlinked nuclear disarmament and non-proliferation regimes.
The NATO Summit Conference in Washington in April 1999 unanimously agreed in a new Alliance Strategic Concept that nuclear weapons "remain essential to preserve peace" (para 45) and that "the supreme guarantee of the security of the allies is provided by the strategic nuclear forces of the Alliance, particularly those of the United States" (para 62). It also stated that NATO will maintain "adequate subategic forces based in Europe" (para 64).
The Russian Security Council, also in April 1999, approved documents outlining Russias nuclear policy. President Yeltsin said "our nuclear forces were and remain an element in the countrys strategy for ensuring national security and military power." Vladimir Putin, then Secretary of the Russian Security Council, said that the presidential decrees "covered the development of the nuclear weapons complex and a concept for developing and using nonategic nuclear weapons." After his appointment as President of Russia, Mr. Putin again affirmed that Russia would develop and use its subategic nuclear weapons.
The US and Russia have also reaffirmed that they do not intend to de-alert their strategic nuclear weapons and that they maintain their policies of first use of these weapons against attack by chemical, biological or conventional weapons.
In August 1999, India released the Draft Report of its National Security Advisory Board on Indias Nuclear Doctrine. It provides that India will develop and maintain a triad of air, land and sea nuclear forces, but would not be the first to initiate a nuclear strike. Pakistan will no doubt also build up its nuclear weapons arsenal, but it does not have a no-first-use policy.
Perhaps the most dangerous developments in regard to nuclear weapons are the U.S. plans for theatre and national missile defense. China and Russia oppose the U.S. plans and sponsored Resolution 54/54A in the General Assembly last fall, which called for full and strict compliance with the 1972 AntiBallistic Missile Treaty (ABM Treaty). Russia has repeatedly warned that any undermining of that Treaty could lead to the collapse of the entire system of international arms control agreements.
Russias Ratification of START II
One welcome positive step towards nuclear disarmament was the Dumas long delayed ratification of the 1993 START II Treaty on April 14, 2000. That Treaty provided that the U.S and Russia would eliminate all land-based multiple warhead strategic missiles and reduce the numbers of their deployed strategic weapons to 3000 or 3500 each by January 1, 2003. The expected early ratification of the Treaty by the upper house of Russias Parliament will open the way for the commencement of the START III negotiations. Russia and the U.S. agreed at a summit meeting in Helsinki in March 1997 that START III would establish a ceiling of 2000-2500 strategic nuclear weapons by December 31, 2007.
Although the Russian ratification of START II was universally welcomed, there are still a number of portentous problems to be solved.
Although the ratification of START II was universally welcomed, there are still a number of portentous problems to be solved. When President Vladimir Putin addressed the Duma on April 14, he is reported to have said that if the U.S. changes the 1972 ABM Treaty or withdraws from it, "we will withdraw not only from the START II Treaty, but from the whole system of treaties on the limitation and control of strategic and conventional weapons." The ratification bill adopted by the Duma lists the "extraordinary circumstances" that allow Russia to withdraw from the Treaty. They include: the violation of the Treaty by the U.S. causing a threat to Russian security; the violation of or withdrawal from the ABM treaty by the U.S.; the build up of strategic offensive weapons by other countries posing a threat to Russian national security; the deployment of nuclear weapons in countries that joined NATO after the signing of START II; the deployment by the U.S or other countries of armaments obstructing the Russian missile attack warning system; and emergencies, including economic or technological ones, making it impossible for Russia to implement START II or capable of causing a threat to Russias environmental safety.
The Duma also approved a package of documents that were signed in New York in September 1997 by Russia, the U.S and Belarus, Kazakhstan and Ukraine after the summit meeting in March 1997 at Helsinki. These include: a protocol to the START II Treaty extending the time limit for the reduction of their nuclear warheads from January 1, 2003 to December 31, 2007 (the same time limit as envisioned for the START III reductions); a document signed by Belarus, Kazakhstan and Ukraine as well as by Russia and the U.S. identifying the three newly independent states as legal successors to the USSR as parties to the ABM Treaty; several agreed statements clarifying the demarcation between ABM systems which are limited by the ABM Treaty and theatre missile defense systems which are not limited by the Treaty; and letters on early deactivation of nuclear warheads.
Withdrawal from the ABM Treaty would endanger the entire structure of nuclear disarmament and non-proliferation treaties.
The START II Protocol, the agreed statements concerning the ABM Treaty and the letters of deactivation are subject to ratification or approval by the signatory states. These have now been ratified or approved by the Russian Duma but not yet by the U.S. Senate which approved ratification of START II in January 1996.
Another possible area of disagreement between Russia and the U.S. is the reduction of strategic warheads by the START III negotiations. The Helsinki agreements envisaged that the numbers would be reduced to 2000-2500, which is the number that the U.S. favors; Russia now proposes the number be reduced to 1000-1500.
Above all, there still remain the sharp differences between Russia and the U.S. over the American plans for a limited missile defense which Russia regards as a violation of the ABM Treaty and which the U.S. says should be authorized by amending the ABM Treaty. Some American Pentagon officials and some U.S. Senators say that the U.S. should withdraw from the ABM Treaty if Russia does not agree to amend the Treaty. This threat endangers the entire structure of nuclear disarmament and non-proliferation treaties. It could also prevent any agreement or positive outcome at the NPT Review Conference.
In any case, even if the problem of missile defenses is postponed and even if it does not disrupt the Review Conference, it seems that most NNWS feel that the purposes of the Preamble and the provisions of the NPT are not being realized. Although 5 years have passed since the Principles and Objectives decision at the 1995 Review and Extension Conference, 10 years since the Cold War ended and 32 years since the NPT was adopted and opened for signature, there are now no multilateral negotiations on any aspect of nuclear disarmament.
On February 2, 2000, Secretary-General Kofi Annan in a statement to the Advisory Board on Disarmament Matters referred to the "deplorable stagnation of the overall disarmament and non-proliferation agenda." He also stated: "It is hard to approach it [the NPT Review Conference] with much optimism, given the discouraging list of nuclear disarmament measures in suspense, negotiations not initiated and opportunities not taken . . . That list is indeed discouraging but it is even more disheartening to hear the Nuclear Weapons States reiterate their nuclear doctrines, postures and plans, which envisage reliance on nuclear weapons for the foreseeable future. If we are even to dream of a world free of nuclear weapons by the end of the 21st century we should start taking new and effective measures of nuclear disarmament and non-proliferation right now."
Despite the gloomy outlook for the NPT Review Conference, advantage should be taken of the improved atmosphere that should result from the ratification of START II. It now appears to be likely that the START process will resume in the near future between Russia and the U.S. Important though that would be, it is only one aspect of the many interlinked measures of nuclear disarmament and non-proliferation that the NPT envisioned.
The Chairmans Revised Working Paper submitted to the Third Session of the Preparatory Committee for the 2000 NPT Review Conference (NPT/Conf.2000/PCIII/58) on May 20, 1999 illustrates the many measures that must be dealt with. It could provide an excellent basis for discussion of all the many aspects of nuclear disarmament. The subject of nuclear disarmament has raised the most sensitive and difficult overall problems at all previous review conferences. The problems of safeguards and of peaceful uses of nuclear energy have never threatened to block a consensus on the final document of any of the review conferences; only lack of a consensus on the work of main Committee I has prevented agreement on a final document on the review of the NPT at the conferences of 1980, 1990 and 1995.
Another approach might be to divide the work of Committee I into three stages safety measures, interim steps of nuclear disarmament, and the elimination of all nuclear weapons.
Under safety measures, the conference could call for:
These two measures would greatly improve the safety of all states and avoid the unauthorized use of nuclear weapons by accident, error or miscalculation. They could also be carried out quickly and easily by each of the NWS acting unilaterally or jointly.
Under interim measures of nuclear disarmament, the Conference could call for:
Under the elimination of all nuclear weapons the Conference should call for:
The above program could be set out in a single document covering all three stages, or in separate resolutions or decisions on each stage or on each measure.
Since it is highly unlikely that a consensus can be reached on the entire program or even on one or a few individual measures, it will be necessary to present draft resolutions or decisions for adoption by two-thirds majority votes as provided for in Rule 28 of the Draft Rules of Procedure.
If no consensus is attainable at the Review Conference, it would be better for the parties to register their views by voting.
It would of course be preferable if the respective resolutions or decisions could be adopted by consensus or without a vote but, if no consensus is attainable, it would be better to proceed to a vote. If a vote is likely to obtain the required two-thirds majority, it is quite possible that the NWS would be willing to make the concessions necessary for a consensus on a final document, as did in fact occur at the 1985 Review Conference. If that does not occur at the present Review Conference, then it would be important that the parties at least register their views by voting. Moreover, a two-thirds majority vote by the parties to the NPT would send a much stronger message to the NWS than is the case with resolutions adopted by the General Assembly, which are routinely ignored by the NWS.
The Secretary-Generals Proposal
The report of Secretary-General Kofi Annan, "We the Peoples: The Role of the United Nations in the 21st Century" (A/54/2000), was submitted to the Millennium Assembly on March 27, 2000. In a brief section entitled "Nuclear Weapons" the Secretary-General gives a very condensed but excellent survey of the current deplorable state of nuclear disarmament. (Paragraphs 248 to 253). Indeed, the author, who has served under every Secretary-General since January 1946, cannot recall any statement by any other Secretary-General as clear, concise and outspoken as this statement. In addition, the specific proposal of Secretary-General Kofi Annan for the convening of a major international conference that would help to identify ways of eliminating nuclear dangers is most timely. Such a conference could in fact lead the way toward eliminating nuclear weapons. The entire text of the Secretary-Generals views on nuclear weapons is set out in annex A.
249. The objective of nuclear non-proliferation is not helped by the fact that the nuclear weapon states continue to insist that those weapons in their hands enhance security, while in the hands of others they are a threat to world peace.
250. If we were making steady progress towards disarmament, this situation would be less alarming. Unfortunately the reverse is true. Not only are the Strategic Arms Reduction Talks stalled, but there are no negotiations at all covering the many thousands of so-called tactical nuclear weapons in existence, or the weapons of any nuclear power other than those of the Russian Federation and the United States of America.
251. Moreover, unless plans to deploy missile defenses are devised with the agreement of all concerned parties, the progress achieved thus far in reducing the number of nuclear weapons may be jeopardized. Confidencebuilding is required to reassure states that their nuclear deterrent capabilities will not be negated.
252. Above all else, we need a reaffirmation of political commitment at the highest levels to reducing the dangers that arise both from existing nuclear weapons and from further proliferation.
253. To help focus attention on the risks we confront and on the opportunities we have to reduce them, I propose that consideration be given to convening a major international conference that would help to identify ways of eliminating nuclear dangers.
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