Disarmament and Non-Proliferation:
POLICY STATEMENTS CONTRADICTING
ARTICLE VI OF THE NUCLEAR NON-PROLIFERATION TREATY*April 20, 2000
*This paper was prepared by Peter Weiss and John Burroughs, with contributions from Andrew Lichterman and Jacqueline Cabasso, Western States Legal Foundation, Oakland, California. It draws on a forthcoming book by Charles Moxley, Nuclear Weapons and International Law in the Post Cold War World (Austin & Winfield, Lanham, Maryland).
In official statements in connection with the Nuclear Non-Proliferation Treaty (NPT) and at the United Nations, the United States claims to be in compliance with the Article VI obligation to negotiate nuclear disarmament. For example, a statement on the NPT released by the White House on March 6, 2000 asserted that "the United States is committed to the ultimate elimination of all nuclear weapons" and that "the United States rededicates itself to work tirelessly and expeditiously to create conditions that will make possible even deeper reductions in nuclear weapons, and ultimately their elimination". (The full text of the statement's discussion of disarmament is included as an appendix to this paper.)
However, an examination of authoritative US policy statements made in non-NPT and non-UN, mostly national, contexts reveals:
At the 2000 NPT Conference the United States and Russia will tout the START process. However, while the Duma has approved START II, its implementation is dependent upon highly uncertain US Senate approval of 1997 agreements concerning what tests can be conducted under the Anti-Ballistic Missile (ABM) Treaty. Completion of START III negotiations will depend upon equally uncertain resolution of disputes over US missile defense plans. Russia also is stating that US abrogation or infringement of the ABM Treaty is grounds for Russias withdrawal from START II. If START II and START III as currently envisaged are implemented, Russia and the United States a decade from now likely each will retain on the order of 2000 deployed strategic warheads plus thousands of additional tactical, spare, and reserve warheads.
Article VI of the NPT provides in relevant part that "[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament " In its 1996 advisory opinion, the International Court of Justice provided the authoritative legal interpretation of Article VI, concluding unanimously that:
The "cessation of the arms race" element of Article VI governs both qualitative and quantitative aspects of nuclear weapons development, production and deployment. It refers, in particular, to a comprehensive test ban, which historically was considered a decisive restraint on weapons development. A declaration by France, Russia, the United Kingdom and the United States made at the Conference on Disarmament in anticipation of the 1995 NPT Review and Extension Conference states that "the nuclear arms race has ceased." CD/1308, 7 April 1995. That manifestly is not true with respect to qualitative development.
US policy statements demonstrating policy commitments in contradiction with Article VI as interpreted by the ICJ are set out below under two headings, the first relating to nuclear disarmament, the second to cessation of the nuclear arms race. Some additional statements of NATO, the United Kingdom, Russia, and France are included under a third heading.
I. US POLICY STATEMENTS IN CONTRADICTION WITH THE ARTICLE VI REQUIREMENT TO BRING TO A CONCLUSION NEGOTIATIONS ON NUCLEAR DISARMAMENT
[N]uclear weapons remain important as one of a range of responses available to deal with threats or use of NBC [nuclear, biological, chemical] weapons against U.S. interests. They also serve as a hedge against the uncertain futures of existing nuclear powers and as a means of upholding U.S. security commitments to U.S. allies. In this regard, U.S. nuclear forces based in Europe and committed to NATO provide an essential political and military link between the European and North American members of the Alliance, and permit widespread European participation in all aspects of the Alliance's nuclear role. Thus, FOR THE FORESEEABLE FUTURE (emphasis added), the United States will retain a robust triad of sufficient nuclear forces ... The Department believes THESE GOALS CAN BE ACHIEVED AT LOWER FORCE LEVELS (emphasis added) ....
William S. Cohen, U.S. Secretary of Defense, Annual Report to the President and Congress 2000, Chapter 1, "Defense Strategy," http://www.dtic.mil/execsec/adr2000/chap1.html
[T]he fundamental purpose of US nuclear forces is to deter the use of weapons of mass destruction (WMD), particularly nuclear weapons, and to serve as a hedge against the emergence of an overwhelming conventional threat. Credible and capable nuclear forces are ESSENTIAL FOR NATIONAL SECURITY (emphasis added). Deterrence of employment of enemy WMD, whether it be nuclear, biological, or chemical, requires that the enemy leadership believes the United States has both the ability and will to respond promptly and with selective responses that are credible (commensurate with the scale or scope of enemy attacks and the nature of US interests at stake) and militarily effective.
We can achieve a lot in terms of reductions, we can achieve a lot in terms of improving security, we can limit the nuclear danger by going down to a level of 2,000 to 2,500 WITHOUT JEOPARDIZING . . . OUR INTERESTS WITH RESPECT TO NUCLEAR DETERRENCE (emphasis added), [State Department spokesman James P.] Rubin said yesterday [January 27, 2000, in explaining US rejection of a Russian offer to cut deployed strategic warheads to 1,500 from negotiated but not yet entered into force or implemented START II levels of 3,000 to 3,500].
FOR THE FORESEEABLE FUTURE (emphasis added), we will continue to need a reliable and flexible nuclear deterrent. . [N]uclear deterrence, far from being made wholly obsolete, remains an essential, ultimate assurance against the gravest of threats. [W]e will continue to maintain nuclear forces of sufficient size and capability to hold at risk a broad range of assets valued by [hostile] political leaders.
[Presidential Decision Directive 60, adopted in November 1997, affirms] that the U.S. will continue to rely on nuclear arms as a cornerstone of its national security for the INDEFINITE FUTURE (emphasis added).... [According to Robert Bell, special national security assistant to President Clinton, nuclear weapons] are still needed to deter 'aggression and coercion' by threatening a response that 'would be certain and overwhelming and devastating' [and] the directive still allows the United States to launch its weapons after receiving warning of attack - but before incoming warheads detonate - and also to be the first to employ nuclear arms in a conflict.
On August 11, 1995, when I [President Clinton] announced U.S. support for a "zero yield" CTBT, I stated that: " As part of our national security strategy, the United States must and will retain strategic nuclear forces sufficient to deter any future hostile foreign leadership with access to strategic nuclear forces from acting against our vital interests and to convince it that seeking a nuclear advantage would be futile. In this regard, I consider the maintenance of a safe and reliable nuclear stockpile to be a SUPREME NATIONAL INTEREST (emphasis added) of the United States ."
[N]uclear weapons will continue INDEFINITELY (emphasis added) to play an indispensable role as a hedge against uncertainties, to deter potential aggressors who are both more diverse and less predictable than in the past, and to allow the United States to construct a more stable security environment.
Just as nuclear weapons are our most potent tool of deterrence, nevertheless they are blunt weapons of destruction and thus are likely always to be our weapons of last resort. Although we are not likely to use them in less than matters of the greatest national importance, or in less than extreme circumstances, nuclear weapons always cast a shadow over any crisis or conflict in which the US is engaged. Thus, DETERRENCE THROUGH THE THREAT OF USE OF NUCLEAR WEAPONS WILL CONTINUE TO BE OUR TOP MILITARY STRATEGY (emphasis added) [§] ... The US has now eschewed the use of either chemical or biological weapons and is seeking the complete elimination of such weapons by all nations through the CWC and BWC, but we would consider the complete elimination of our nuclear weapons only in the context of complete and general disarmament. Thus, since we believe it is impossible to 'uninvent' nuclear weapons or to prevent the clandestine manufacture of some number of them, NUCLEAR WEAPONS SEEM DESTINED TO BE THE CENTERPIECE OF US STRATEGIC DETERRENCE FOR THE FORESEEABLE FUTURE (emphasis added).
[T]he NPR [Nuclear Posture Review] strategy protects the U.S. option to reconstitute the stockpile to START I levels should unfavorable events occur in the former Soviet Union. The [START I and II] treaties only control the number of strategic nuclear weapons that can be loaded on treaty-specified and -verified strategic missiles and bombers. These nuclear weapons are limited to 6,000 by the START I Treaty and 3,500 by the START II protocol. The treaties do not control the total stockpile size or the composition of strategic and nonstrategic weapons of either side. THE U.S. STOCKPILE WILL BE LARGER THAN 6,000 UNDER START I AND 3,500 UNDER START II (emphasis added) since the stockpile also includes retaining weapons for nonstrategic forces, DoD operational spares, and spares to replace weapons attrited by DoE surveillance testing. In the START II case, the stockpile may also include retaining weapons to reconstitute to the START I level.
We simply do not need to test nuclear weapons to protect our security. On the other hand, would-be proliferators and modernizers must test if they are to develop the kind of advanced nuclear designs that are most threatening. THUS, THE CTBT WOULD GO FAR TO LOCK IN A TECHNOLOGICAL STATUS QUO THAT IS HIGHLY FAVORABLE TO US (emphasis added).
II. US POLICY STATEMENTS IN CONTRADICTION WITH THE ARTICLE VI REQUIREMENT TO NEGOTIATE EFFECTIVE MEASURES RELATING TO CESSATION OF THE NUCLEAR ARMS RACE AT AN EARLY DATE
Weapons activities provides for the maintenance and refurbishment of nuclear weapons to sustain confidence in their safety, reliability, and performance; expansion of scientific, engineering, and manufacturing capabilities to enable certification of the ENDURING (emphasis added) nuclear weapons stockpile; and manufacture of nuclear weapon components under a comprehensive test ban. Weapons activities also provide for continued maintenance and investment in the [Energy] Departments enterprise of nuclear stewardship, including MAINTAINING THE CAPABILITY TO RETURN TO THE DESIGN AND PRODUCTION OF NEW WEAPONS AND TO UNDERGROUND NUCLEAR TESTING (emphasis added), if so directed by the President.
Nuclear deterrence remains key to the nations defense and will FOR THE FORESEEABLE FUTURE.... [T]HE U.S. NUCLEAR DETERRENT IS A VITAL COMPONENT OF OUR NATIONS SECURITY TODAY AND WILL BE FOR MANY YEARS TO COME (emphasis added).... The job of DOEs [the Department of Energys] nuclear weapons complex is to make sure that no one in the world doubts that the United States has the technical capability to project overwhelming nuclear force in the defense of our national interest. Accomplishing this task involves two parallel efforts. First, we must take care of the actual weapons themselves, including actions made necessary by aging, manufacturing defects, and NEW MILITARY REQUIREMENTS (emphasis added). Second, the nuclear deterrent must remain credible to our government officials and to the governments of allies and potential adversaries.
Nothing in the Comprehensive Nuclear Test-Ban Treaty prevents the United States or other nations from conducting nonnuclear-explosive stockpile activities to maintain and enhance the reliability and safety of its nuclear weapons, including ... DESIGN OR DEVELOPMENT OF NEW NUCLEAR WEAPONS (emphasis added).... The Preamble of the Comprehensive Nuclear Test Ban Treaty states that cessation of nuclear testing is "an effective measure of nuclear disarmament." Perhaps the drafters of this language believed that confidence in nuclear weapon stockpiles would inexorably erode over time to the point where they would no longer be regarded as credible weapons. [§] This is an unrealistic expectation, however, because no stockpile activities other than nuclear testing are prohibited by the treaty....
Los Alamos and Lawrence Livermore National Laboratories are responsible for nuclear explosives, and while they cannot create completely new concepts without testing, MANY PREVIOUSLY TESTED DESIGNS COULD BE WEAPONIZED TO PROVIDE NEW MILITARY CAPABILITIES (emphasis added). [§] Over time, the question of whether the U.S. stockpile contains the appropriate warheads for the evolving threats is bound to become an issue. For example, if nuclear weapons emerge as the right answer to deter the use of other weapons of mass destruction in a regional conflict, the nuclear weapons we currently deploy may carry too high a yield and be far too disproportionate a response to be a credible deterrent. Proven designs of lower yield exist that might be adaptable for NEW MILITARY REQUIREMENTS (emphasis added) in the future. I believe that such weapons could be deployed this way without the need for nuclear tests. [§] Moreover, adapting deployed nuclear designs to new delivery systems, or even other delivery modes, is not constrained by the elimination of nuclear-yield testing. New delivery modes can be achieved and certified for older designs without nuclear testing. For example, LAST YEAR THE UNITED STATES COMPLETED CONVERSION OF A SET OF B61-7 GRAVITY BOMBS INTO B61-11 EARTH-PENETRATING WARHEADS. THEY ARE NOW OPERATIONALLY DEPLOYED (emphasis added), having replaced the B53 gravity bombs, which were retired, because they did not have modern safety features.
Operational considerations clearly favor the B61-11 over the B53. Due to its size and weight, the B53 could only be delivered by the B52 bomber. The B61-11 is compatible with both the F-16 and B-2. The B61-11 produces far less collateral damage and has the same effectiveness against deeply buried targets as the B53 with less than one twentieth the yield . The B61-11 is an outstanding example of using an existing weapon IN A NEW WAY (emphasis added) to hold at risk robustly defended, deeply buried targets.
The requirement to maintain the capability to design and engineer new weapon systems to military requirements [was] stated in the DoD [Department of Defense] Nuclear Posture Review (NPR). NUCLEAR WEAPONS IN THE ENDURING STOCKPILE WILL EVENTUALLY BE REPLACED (emphasis added). This work is anticipated to begin around 2010. In the meantime, FUTURE NATIONAL POLICIES ARE SUPPORTED FOR DETERRENCE BY RETAINING THE ABILITY TO DEVELOP NEW NUCLEAR OPTIONS FOR EMERGENT THREATS (emphasis added).
NS1: Maintain and refurbish (emphasis in original) nuclear weapons in accordance with directed schedules to sustain confidence in their safety and reliability INDEFINITELY (emphasis added), under the Nuclear Testing Moratorium and arms reduction treaties.
III. POLICY STATEMENTS OF NATO, RUSSIA, THE UNITED KINGDOM, AND FRANCE EVIDENCING A COMMITMENT TO DETERRENCE, NOT DISARMAMENT.
To protect peace and to prevent war or any kind of coercion, the Alliance [NATO] will maintain FOR THE FORESEEABLE FUTURE (emphasis added) an appropriate mix of nuclear and conventional forces based in Europe and kept up to date where necessary ... [T]he Alliances conventional forces alone cannot ensure credible deterrence. Nuclear weapons make a unique contribution in rendering the risks of aggression against the Alliance incalculable and unacceptable. Thus, they remain essential to preserve peace.
The Russian Federation should possess nuclear forces that are capable of guaranteeing the infliction of the desired extent of damage against any aggressor state or coalition of states in any conditions and circumstances.... The Russian Federation considers the possibility of employing military force to ensure its national security based on the following principles: use of all available forces and assets, including nuclear, in the event of need to repulse armed aggression, if all other measures of resolving the crisis situation have been exhausted and have proven ineffective; ....
- National Security Concept, signed by Acting President Vladimir Putin, January 10, 2000
THE STRATEGIC DEFENCE REVIEW... REAFFIRMED THE [BRITISH] GOVERNMENTS COMMITMENT TO NUCLEAR DETERRENCE (emphasis added). It confirmed that the Trident submarine-launched weapons system will remain the United Kingdoms sole nuclear deterrent in both the strategic and subategic roles.... we ha[ve] in place a continuing planned production programme necessary to retain and exercise the manufacturing skills that will be needed to maintain the Trident warheads safely in SERVICE FOR THE NEXT 20-30 YEARS (emphasis added). This vital role and the RETENTION OF THE CAPABILITY TO DESIGN A NEW WEAPON IF REQUIRED (emphasis added) was assured by the Review. However, this will need to be done without recourse to underground nuclear testing, following the United Kingdoms ratification of the Comprehensive Test Ban Treaty.
- 1998 Hunting-BRAE Annual Report for the Atomic Weapons Establishment
The provisions of Article 8 [war crimes] of the Statute [of the International Criminal Court], and in particular those of paragraph 2(b), exclusively concern conventional weapons and are incapable of regulating or prohibiting the possible use of nuclear weapons and do not affect other rules of international law that apply to other weapons which are necessary in the exercise of France's inherent right of self defense, unless the nuclear weapons or other weapons fall, in the future, under a general prohibition and are included as an annex to the Statute by way of an amendment adopted under the provisions of Articles 121 and 123.*
Clinton Statement on the Treaty on the Non-Proliferation of Nuclear Weapons
(Portions Relating to Disarmament)
White House Press Office
March 6, 2000
Thirty years ago -- March 5, 1970 -- the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) entered into force. The countries that negotiated the NPT had clear and important goals. They wanted a safer, more secure world in which states not possessing nuclear weapons would foreswear their acquisition, and in which
states with nuclear weapons would work toward eliminating them. They wanted an effective verification system to confirm these commitments. And they wanted to ensure that countries could use the atom peacefully to improve the lives of their people without spurring nuclear weapons proliferation.
* * *
The NPT also calls for Parties to "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament." Remarkable progress in nuclear disarmament has occurred since the end of the Cold War. Under the START process, the United States and Russia have committed to reduce deployed strategic nuclear warheads by approximately two-thirds from Cold War levels. We have agreed to a START III framework that would cut these arsenals by 80 percent from
those peaks, and we will intensify our efforts to work with Russia to bring this agreement into effect.
Already, the United States has eliminated some 59 percent of our overall nuclear weapons, and many U.S. facilities once dedicated to the production of nuclear weapons have been shut down, deactivated, or converted to other uses. Our nuclear weapons are no longer targeted against any country; our Army, Marine Corps, and surface and air Navy no longer deploy nuclear weapons; and our bomber force no longer stands on alert.
NATO has reduced the number of nuclear warheads dedicated to its subategic forces in Europe by 85 percent, and NATO's dual capable aircraft, the Alliance's only nuclear forces, are no longer maintained on alert status, and their readiness levels have been reduced from minutes to weeks.
The United States and Russia are cooperating to ensure no further production of weapons-usable material, the safe storage of existing quantities of such material, and internationally supervised elimination of surplus stocks of nuclear materials.
We will continue the U.S. moratorium on nuclear testing and work to establish a universal ban through the Comprehensive Nuclear Test Ban Treaty. The Conference on Disarmament should take the next essential step for global nuclear disarmament by negotiating a fissile material cutoff treaty now, without conditions.
The United States is committed to the ultimate elimination of all nuclear weapons. Achieving this goal will be neither easy nor rapid. Accordingly, the United States rededicates itself to work tirelessly and expeditiously to create conditions that will make possible even deeper reductions in nuclear weapons, and ultimately their elimination.