An Essay in Bifurcation: What the nuclear weapon powers do and what they say

Tasneem Jamal

Peter Weiss

Peter Weiss is President, Lawyers’ Committee on Nuclear Policy

Each of the panelists at the Consultation on NATO Nuclear Policy, National Missile Defence & Alternative Security Arrangement, held in Ottawa on September 28-31, 2001, was asked to submit a short paper relating to the topic of their presentation. The other Consultation participants were asked to submit brief papers responding to one or more of the following questions:

1. What changes to its nuclear policies should NATO be realistically asked to make, in the context of the current review, to move it towards fuller compliance with global nuclear disarmament and non-proliferation obligations and imperatives?

2. Are there realistic and credible alternative means of addressing the security concerns that underlie current U.S. interest in missile defense?

3. What are the most realistic short-term or interim measures that should be taken by nuclear weapon states and nuclear alliances to demonstrate a commitment to significantly reducing the political legitimacy and value of nuclear weapons in order to contribute to the goal of elimination?  

“An ambassador”, in the words of the l6th century English diplomat Sir Henry Wotton, “is an honest man sent to lie abroad for the good of his country.” On May 20 of this year, the ambassadors of the nuclear weapon states lived up to this definition by solemnly signing, at the end of the NPT Review Conference, an “unequivocal undertaking to accomplish the total elimination of their nuclear arsenals.”

It was a short lived victory for the many governments and the huge number of civil society organizations committed to nuclear abolition. Within days, the great NMD debate was launched by George W. Bush at the National Press Club, was taken up by Vice President Gore and became a leading topic of comment and discussion in chancelleries and media throughout the world. Governor Bush, while issuing a welcome call for a significant reduction in the number of nuclear weapons below START II levels and for removing “as many weapons as possible from high-alert, hair-trigger status”, also called for “a missile defense designed to protect all 50 states and our friends and allies and deployed forces overseas from missile attacks by rogue nations or accidental launches.”

But in reply to a question as to whether Bush supported the May 20 abolitionist undertaking as well as ratification of the CTBT, he said: “I will never reduce the levels of the nuclear stockpile of the United States to a position where it would jeopardize our safety and security. And no, I don’t support the Comprehensive Test Ban Treaty.”

Gore, on the other hand, is opposed to reducing nuclear force levels and in favor of a smaller NMD. But both Bush and Gore have indicated their willingness to scrap the ABM treaty in order to achieve their respective objectives, if the treaty cannot be renegotiated with the Russians.

Yet, with the exception of the one question addressed to Bush at the National Press Club on May 23, the entire NMD debate has taken place since then without the slightest reference to what happened at the UN three days earlier. This is remarkable on two grounds:

First, because the “unequivocal undertaking” represents not just a casual policy statement subject to change from one period, or one administration, to the next, but rather the affirmation of a binding treaty obligation entered into by the nuclear weapon states in Article VI of the NPT, corroborated by the International Court of Justice in 1996 and extracted from the nuclear weapon states after many hours of acrimonious debate at this year’s NPT Review Conference. Indeed, the linguistic progression in these three stages is worth noting: The undertaking “to pursue negotiations in good faith on effective measures relating to … nuclear disarmament” in Article VI of the NPT becomes, in the ICJ Opinion, “an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects” and this, in turn, becomes the “unequivocal undertaking to accomplish the total ” – no longer the ultimate – elimination of nuclear arsenals in the NPT Review statement..

The second reason for deploring the absence of the abolitionist obligation from the NMD debate is that, from a security standpoint, it should be clear to any thinking person that the only workable missile defense lies in the elimination of nuclear weapons and, looking at the other side of the coin, that proceeding toward a missile defense system in violation of the ABM treaty is bound to revive the nuclear arms race and destabilize not only the nuclear standoff but the entire arms control system.

My answer, therefore, to the question what changes NATO should realistically be asked to make to its nuclear policies is that NATO should realistically be asked to abandon its reliance on nuclear weapons and should help the United States, as the leading nuclear power, to disentangle itself from that reliance. The bad news is that, for reasons that are not always clear to me, challenging the position of the United States does not come easily to its friends and allies in and out of NATO. The good news is that NMD may be just the thing to break through this wall of unity, this “Bhndniszwang”, as the Germans call it. For, with the possible exception of the UK, it is difficult to think of a single NATO state which likes NMD, whether it be Gore’s microversion or Bush’s macroversion.

I do not wish to be misunderstood about my position. The person speaking to you is not an inveterate America-hater. On the contrary, as an international lawyer, I take pride in the role played by the United States in creating, in the early years of the last century, the Permanent Court of International Justice, precursor of the International Court of Justice, and later in the drafting of the United Nations Charter and the Universal Declaration of Human Rights, as well as the establishment and accomplishments of the Nuremberg Tribunal.

But all that occurred in a multipolar world. Today, as we are reminded on a daily if not hourly basis, the United States is the only remaining superpower, or, as the French put it, hyperpower, and this fact, it grieves me to say, has had devastating consequences on its respect for the rule of law in international affairs. Because law is the protection of the weak against the strong; the strong think they can dispense with it, but of course they are wrong.

It’s lonely at the top, and what the United States needs today is a little help from its friends. Here are some suggestions on what form this help might take:

1. Tell the US that if it wishes to promote the rule of law in the world, it must pay some attention to the rule of law itself. Pacta sunt servanda, as the old Romans used to say.

2. Support the Secretary General’s call for a conference to reduce nuclear dangers.

3. As a transitional measure toward nuclear abolition, support, and ask the US to support, the thirteen steps agreed by all members of the NPT Review Conference.

These are:

i. Ratification of the CTBT.

ii. A moratorium on all nuclear explosions pending entry into force of the CTBT.

iii. Negotiations in the Conference on Disarmament of a treaty banning the production of fissile material .

iv. The immediate establishment within the CD of a subsidiary body dealing with nuclear disarmament.

v. Adoption of the principle of irreversibility to apply to nuclear disarmament.

vi. The “unequivocal undertaking” mentioned above.

vii. Full implementation of START II and conclusion of START III as soon as possible while preserving and strengthening the ABM Treaty “as a cornerstone of strategic stability and as a basis for further reductions of strategic offensive weapons.”

viii. Completion and implementation of the Trilateral Initiative between the US, Russia and IAEA.

ix. Steps by all NWS leading to nuclear disarmament, namely;

a. Further efforts by the NWS toward unilateral reduction of nuclear arsenals;
b. Increased transparency by the NWS with regard to nuclear weapon capabilities;
c. Further reduction of non-strategic nuclear weapons;
d. Measures to further reduce the operational status of nuclear weapon systems;
e. A diminishing role for nuclear weapons in security policies;
f. The engagement “as soon as appropriate” of all NWS in the process leading to the total elimination of their nuclear weapons.

x. Arrangements by all NWS to place, “as soon as practicable”, fissile material no longer required for military purposes under IAEA or other international verification.

xi. Reaffirmation that the ultimate objective is general and complete disarmament under effective international control.

xii. Regular reports by all states parties to the NPT on the implementation of Article VI, the 1995 decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”, “and recalling the advisory opinion of the International Court of Justice of 8 July 1996.”

xiii. The further development of the verification capabilities required for the achievement of a nuclear-weapon-free world.

4. Since virtually nothing has been done since May 20 to implement any of these 13 steps – really 18, since step 9 consists of 6 sub-steps – Canada and other friends of the United States might ask the US certain questions. For instance:

i. When will this show get on the road?

ii. What is the precise meaning of certain phrases inserted at the insistence of the NWS, i.e. “as soon as appropriate” or “as soon as applicable”?

iii. Given the generally accepted notion that NMD will revive a nuclear arms race, how can this be reconciled with the principle of irreversibility?

Needless to say, all of this is extremely relevant to the nuclear review process currently under way at NATO. Others at this consultation will no doubt raise questions about the cost of NMD and its technical feasibility. My purpose has simply been to suggest that international law, including solemn undertakings given under the umbrella of international law, has a role to play as well. I am told that the Aztecs had a way of dealing with those in their midst who broke their promises: They cut out their hearts.

I have no doubt that the friends of my country will find a more humane way to call its leaders to account.

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