Presentation to 1999 Nuclear Non-Proliferation Treaty
Preparatory Committee Meeting for the 2000 Review Conference
Executive Director, Lawyers Committee on Nuclear Policy
11 May 1999
In its historic 1996 advisory opinion, the International Court of Justice interpreted Article VI of the NPT and General Assembly resolutions dating back to the very first one, and unanimously concluded: "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control".
An essential question to be asked, then, regarding every proposed or actual forum or instrument in this field is: Does it contribute to the achievement of "nuclear disarmament in all its aspects"?
Recent General Assembly resolutions have recognized the imperative of conducting multilateral negotiations with the endpoint of "nuclear disarmament in all its aspects" in view. The resolution on follow-up to the ICJ opinion called for "multilateral negotiations in 1999 leading to an early conclusion of a nuclear weapons convention". The New Agenda resolution, sponsored by a grouping of states cutting across traditional boundaries, affirmed that "a nuclear-weapon-free world will ultimately require the underpinnings of a universal and multilaterally negotiated legally binding instrument or a framework encompassing a mutually reinforcing set of instruments".
The need to clarify the elements of the institutional framework for a nuclear weapon free world was anticipated by civil society organizations some years ago. This led a distinguished group of scientists, lawyers and arms control experts to draft a model nuclear weapons convention that provides for the prohibition and elimination of nuclear weapons in a series of graduated, verifiable steps. A briefing book exploring the issues raised by the idea of a convention will be available next week.
The New Agenda resolution also usefully identified a number of measures and mechanisms that the nuclear weapon states alone or together could take to diminish present risks as well as set the stage for agreeing upon elimination. These include "reduction of reliance on nonategic nuclear weapons and negotiation on their elimination" and de-alerting of nuclear weapons and "removal of warheads from delivery vehicles".
In general, the nuclear weapon states, including those outside the NPT, together with at least one outside party representing the international community, perhaps a representative of the UN Secretary General, should begin now to discuss among themselves such matters as
Such cooperation would enhance present safety and security and facilitate negotiations on de-alerting and reduction and elimination of nuclear capabilities.
Unilateral actions, jointly coordinated actions, and bilateral and plurilateral cooperation and negotiations are all important. But there must also be successful multilateral forums and instruments. Most states are aware of the pressing need for the creation of a forum or forums that explicitly have under consideration the institutional framework for a nuclear weapon free world and how to achieve it.
There are several proposals for an ad hoc committee or working group in the Conference on Disarmament, including two originating from NATO member states. What these proposals have in common is that they recognize the validity of multilateral disarmament talks, if not outright negotiations.
There also has been a proposal for an intersessional working group addressing a nuclear weapons convention within the NPT.
And, both the New Agenda resolution and the Durban Final Document of the 1998 Non-Aligned Movement conference, in different forms, call for the convening of a conference concerning nuclear disarmament.
The various proposals just mentioned concern multilateral forums that could be employed if there was the requisite political will, especially on the part of the nuclear weapon states. The main item on the actually existing agenda for multilateral negotiations is a fissile materials treaty. These negotiations are critical because they address the key ingredients of nuclear arsenals. Progress is stalled, however, on the link between banning future production of such material and dealing with existing stocks. Both NGOs and governments need to think creatively about possible solutions that would break the impasse and also meet the criterion of effectively contributing to the achievement of "nuclear disarmament in all its aspects".
One approach would be a fissile materials framework agreement, modeled on such agreements as the Vienna Convention for the Protection of the Ozone Layer and the UN Framework Convention on Climate Change. These agreements recorded commitments and goals, and established a process for further review and negotiation that led to agreements on implementing protocols. One advantage of a framework agreement is that it can be finalized within a reasonable period of time, leaving questions of detailed targets and implementation to further negotiation.
Thus a fissile materials framework agreement could include:
There are other possibilities as well that draw upon existing negotiating forums and instruments. Serious consideration of one such possibility, an NPT amendment conference, is supported by some NGOs. An amendment could make the obligation not to possess nuclear weapons apply to all states parties, and a protocol or annex to the NPT could specify the necessary regulatory framework. A way would also have to be found to bring in states now outside the NPT into the new abolition regime.
Under Article VIII, the amendment could not be adopted without the consent of the nuclear weapon states. If those states have the requisite political will to abolish nuclear weapons, an amendment conference may be the logical way to proceed. Absent such political will, the conference would at least serve to create a forum in which states could deliberate upon the framework of a nuclear weapon free world. If necessary, it could be a recurring process. An amendment conference need not destabilize the NPT. Seeking to make the non-possession norm universal does not imply that states do not value the existing partial non-possession norm. No one thought that if the Partial Test Ban Treaty amendment conference failed itself to produce a comprehensive test ban, states would therefore withdraw from the PTBT.
To summarize and conclude: every action, negotiation, instrument, and forum should be measured by whether it contributes to the achievement of "nuclear disarmament in all its aspects". Hopefully this presentation will at least have served to underscore that fresh thinking, unconstrained by ideas deformed by the Cold War, is required to meet that criterion.