Thomas Graham, Jr.
Ambassador Thomas Graham, Jr., is President, Lawyers Alliance for World Security
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?
In this presentation today I plan to discuss an important issue; the relationship between the Nuclear Non-Proliferation Treaty (NPT) regime and NATO’s nuclear weapon use policy. In October 1999, Prime Minister Blair joined Chancellor Schroeder and President Chirac in writing a notable and unprecedented op-ed in the New York Times that included an appeal to the U.S. Senate to approve ratification of the CTBT. In that article, these three leaders of NATO nations said, “As we look to the next century, our greatest concern is proliferation of weapons of mass destruction, and chiefly nuclear proliferation. We have to face the stark truth that nuclear proliferation remains the major threat to world safety.” The NPT regime is our principal response to this threat.
U.S. Secretary of State Albright referred to the NPT in a recent opinion piece as “the most important multilateral arms control agreement in history.” For thirty years, the NPT has been a firm bulwark in the international community’s ongoing struggle to prevent the spread of nuclear weapons. And because of the NPT that effort has largely been successful. While the number of nations listed by the International Atomic Energy Agency that possess the technological capability to produce nuclear weapons has grown to over sixty, only a handful of states have crossed the nuclear threshold. Nevertheless, this vital international regime is in danger of gradually unraveling. The international community must take any step necessary and practical to make it as difficult as possible for a nation to choose to leave the Treaty.
It is in this context that I would like to discuss NATO’s nuclear weapon use policy. Today, leadership from the members of the Alliance is essential to maintaining a healthy and robust nuclear non-proliferation regime for the 21st Century. I would submit that NATO’s current policy, which reserves the right to use nuclear weapons first even against non-nuclear weapon states, is potentially inconsistent with the negative security assurances given by the nuclear weapon states in connection with the indefinite extension of the NPT which were essential to indefinite extension and are central to the continued viability of the NPT. This policy increases the likelihood of nuclear proliferation because, in bringing into question the negative security assurances, it undermines the NPT.
During the Cold War the NATO first use option arguably was justified in that it was designed to offset, at least politically, the overwhelming conventional superiority of the Warsaw Pact. NATO decided not to invest the vast resources that would have been required to match the Warsaw Pact tank by tank and gun by gun, relying instead – at least in part – on a policy of leaving open the possibility of a nuclear response to an overwhelming conventional attack. But the Cold War has been over for a decade and the Soviet Union and the Warsaw Pact passed into history years ago.
Today it is NATO that has conventional superiority in Europe. With this fundamental change in the European strategic situation, justification for a NATO threat of the first use of nuclear weapons has likewise passed into history. And with nuclear proliferation now the principal threat to the Alliance, the only appropriate role for nuclear weapons is to deter the use of other nuclear weapons. The necessity of such a policy change is only amplified by NATO’s new out of area responsibilities. If our nuclear non-proliferation policies are to succeed, NATO cannot go about the world threatening – even implicitly or as part of a policy of ambiguity – the use of nuclear weapons. In this regard, it is instructive to remember the words of a former Indian Defense Minister who opined that before a state challenges the United States, it should first acquire nuclear weapons.
A principal motivation for states to proliferate is the perceived prestige value of nuclear weapons. One need only look at statements after the May 1998 Indian nuclear tests by the Indian Prime Minister to the effect that India is a big country now that it has nuclear weapons for evidence of prestige motivating proliferation. And nuclear weapon states are not immune from this mind set as is evidenced often by statements of politicians and opinion pieces in the press. Statements such as that of the Indian Prime Minister demonstrate the existence of a dangerous psychology that reinforces the view of nuclear weapons as essential to the security and greatness of a state and thereby makes their proliferation more likely.
The prestige value of nuclear weapons is similarly elevated by outdated and inappropriate policies regarding the possible use of nuclear weapons. While the Canberra Commission, the United States National Academy of Sciences and most recently the Tokyo Forum for Nuclear Non-Proliferation and Disarmament have all concluded that the only role for nuclear weapons is deterring the use of other nuclear weapons, NATO maintains a policy that retains the option to use nuclear weapons to deter or respond to attacks with conventional, chemical or biological weapons. Some commentators in nuclear weapon states advocate NATO’s current approach to deterrence, commonly referred to as a doctrine of “calculated ambiguity” because it suggests that uncertainty in the minds of potential aggressors about the nature of response to a chemical or biological attack would deter the use of these weapons.
Supporters of the “calculated ambiguity” concept suggest that veiled threats to use nuclear weapons in response to a chemical weapon attack deterred the use of chemical weapons by Saddam Hussein during the Persian Gulf War. While we will likely never know if this is true, revelations in memoirs by senior policymakers that the United States was bluffing and never had any intention of using nuclear weapons, even in response to a CBW attack, have ensured that “calculated ambiguity” probably will not be effective in the future. Rather, it is likely that such a bluff would be called, thereby placing pressure on the United States and NATO to actually use nuclear weapons, a potentially disastrous outcome.
In any respect, placing its effectiveness aside, “calculated ambiguity” as I have indicated is potentially inconsistent with the NPT negative security assurances which were joined in by three of the Alliance’s principal members, the United States, the United Kingdom and France. During negotiations to extend the NPT in 1995, the UN Security Council adopted Resolution 984, which acknowledged formal commitments made by the nuclear-weapon states to refrain from using nuclear weapons against the 182 non-nuclear-weapon states parties to the NPT (virtually the entire world), unless such a state were to attack in alliance with another nuclear-weapon state – holdover language from the Cold War. I repeat, because this is an essential consideration, these assurances were an essential part of the quid pro quo for a permanent NPT and they remain central to the ongoing viability of the NPT regime. After all, it is not unreasonable for a state that has legally foresworn nuclear weapons forever pursuant to the NPT to expect a firm commitment from the NPT nuclear weapon state parties not to attack it with nuclear weapons.
Additionally, in agreeing to the appropriate protocols of three nuclear weapon free zone agreements, the nuclear-weapon states have pledged not to use or threaten to use nuclear weapons against the more than 90 non-nuclear-weapon states that are members of those regimes. The negative security assurances undertaken in association with the 1995 extension of the NPT have been implied by the World Court to be legally binding like the protocols to the nuclear weapon free zone treaties and neither contain exceptions that would allow the use of nuclear weapons in response to an attack with chemical and/or biological weapons.
Further, for many years, particularly since 1995, the non-nuclear weapon states have urged that the NPT NSAs be made unequivocally legally binding. The NSAs are as statements of national policy functionally equivalent to a no-first-use pledge to the 182 NPT non-nuclear weapon states. National policies of the nuclear weapon states outside the NPT context and as expressed by means of NATO Alliance policy, however, are inconsistent with the NPT NSAs. To make the NSAs legally binding would go beyond a NATO policy declaration of not introducing nuclear weapons into future conflicts. It would be stronger than a no-first-use declaration as it would legally require a second use role for nuclear weapons for NPT members. Several NATO members have been in the forefront of calling for legally binding NSAs. This effort was prominently led by Canada, Germany, Italy, Norway and the Netherlands at the 2000 NPT Review Conference, the Final Document of which recognized the importance of legally binding NSAs and called for a report on this issue by the preparatory committees for the next review.
But, it can be argued not that nuclear weapons should be used for deterrence of chemical and biological weapons generally, but rather as a potential response to something like a massive attack on a city with biological weapons with casualties akin to an attack with nuclear weapons. For this contingency the legal doctrine of “belligerent reprisal” is available. This doctrine would justify the right to use nuclear weapons (or any weapon) to retaliate against a chemical or biological weapon attack, albeit under a certain narrow set of circumstances. The doctrine is an old rule of customary international law that provides that a nation attacked by another state in a manner that is in violation of international law has the right to suspend any international commitments as between itself and the offending party. Thus, if a nation violates the customary international law rule against the first use of chemical or biological weapons established by the 1925 Geneva Protocol, which is now considered part of customary international law binding on all states forever, the victimized nation could respond with whatever weapons it chooses, including nuclear weapons. However, the response must be proportional (which would almost never be the case in responding to attacks with chemical and biological weapons except in the massive attack on a city example I gave above) and necessary to stop the attack.
With this doctrine in mind and available for some most unlikely and extreme future case, instead of relying on a policy of “calculated ambiguity,” NATO should declare its commitment that it would not introduce nuclear weapons into a future conflict and agree instead to rely generally on its overwhelming conventional superiority to deter or respond to the use of chemical and biological weapons.
Statements by the most powerful conventional force in history, the NATO Alliance, that it needs to maintain the nuclear option against non-nuclear forces to maintain its security sends a damaging message to many non-nuclear weapon states. If NATO needs nuclear weapons to say, deter the biological weapons of Saddam Hussein, this raises the question as to why Iran or Egypt or virtually anyone else does not need them as well. By not limiting the role of nuclear weapons to the core deterrence function of deterring their use by others, current NATO doctrine reinforces the high political value accrued to nuclear weapons, thereby making reductions more difficult and undermining non-proliferation efforts.
If a decision on changing the NATO nuclear weapon use policy is not possible at the December Ministerial, the Ministers should mandate a new review focused on this subject with account to be taken of NATO’s nuclear non-proliferation interests to report to the December 2001 Ministerial. If the next century is to be more secure than the last, the world must be freed from the dangers associated with the proliferation of nuclear weapons. Leadership from the NATO Alliance could be one of the keys to preserving the NPT regime.