NATO Must Build and Respect International Law

Tasneem Jamal

Author
Fredrik S. Heffermehl

Fredrik S. Heffermehl is Vice President, International Peace Bureau, Geneva

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?

NATO should immediately take steps to comply with binding legal obligations to eliminate NWs. To comply with international law is not a matter of choice, it is mandatory, and it is fundamental in bringing about peace and security. One nation or an alliance of nations cannot be allowed to say that our security interests are above the law. However, that is exactly what NATO has done, and continues doing, in relation to the 1968 treaty on non-proliferation and nuclear disarmament (NPT). NATO should – very belatedly – realize that the Cold War is over and make use of the unique opportunity to reach agreements on extensive disarmament, starting with Russia. Human welfare and world security is suffering badly under the military burdens, not least Russia should be motivated to agree on drastic force reductions. Their need to do so has been highlighted by the “Kursk” submarine disaster. The West should take the lead in reductions, rather than urging the Russians to keep high nuclear alertness, which has allegedly happened quite recently – and preposterously.

The present NATO strategy (Strategic Concept, par. 42, 46, 62-63) states that NWs “for the foreseeable future … make a unique contribution,” “fulfill an essential role …, (are) supreme guarantee of the security of the Allies,” etc. Such words make NATO a “rogue alliance.”

Despite various attempts by NATO leaders to “interpret” away the clear message of the International Court of Justice in its July 8, 1996, Advisory Opinion, there can be no doubt that the NWs and NATO strategies are in abject violation of international law. In an article in a Norwegian law journal (Kritisk Juss, 4/99, pp. 311-316) I wrote the following:

“While we could delight in the Court´s clear, unanimous votes on a number of single themes, the 14 judges on a decisive point had to vote yes or no to two different questions combined into one. The combination was such that hardly any of the judges got a chance to express their precise view. The vote itself, 7-7, with the President casting the decisive yes-vote left a situation where one has to look into the separate opinions of each of the judges to understand their positions in each of the two issues. One will then find a 10-4 result in support of the view that use or threat is generally illegal. Surprisingly the ICJ in addition gave its opinion in a question that had not been expressly asked: According to the 1968 treaty on non-proliferation and nuclear disarmament, art. VI, the nuclear powers are under a legal obligation to abolish nuclear weapons, the judges unanimously held, 14-0.

The coverage in mainstream Western media was close to nil. Leading NATO countries were quick to claim that their nuclear strategies were legal under the Court´s words on self defense. The NATO position is expressed as follows in an Aug. 31, 1998, letter from the Foreign Minister Knut Vollebak to the Norwegian Peace Alliance: ‘In the fundamental question of the legitimacy of nuclear weapons in self defense situations where the very survival of a state is at stake, the Court found that available sources of international law cannot clarify this.’

This is clearly incorrect. The Foreign Minister´s formulation alludes to the part of the 7-7 vote where the Court said it could not take a definite position on the legality on threat or use ‘in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.’ The position of Mr. Vollebak requires one to overlook the fact that the Court unanimously, 14-0, found that nuclear weapons can only be used within the limitations set by the laws and customs of warfare and that the ICJ further noted that the nuclear powers had tried, but been unable to, show any type of nuclear weapon or use that would satisfy the requirements of international law. There can be no doubt that use against inhabited areas is unlawful. One could imagine (but even that highly questionable) that use might be lawful in a big desert or under the polar ice. But what sense would such a detonation make as self defense for Moscow or London?

In my evaluation the position of NATO and other nuclear powers is not legitimized by the Court´s words on self defense. All known types and militarily relevant forms of use of nuclear weapons must be considered illegal after the Hague opinion.”

Soon after 1990 it was said that “The Cold War is over – and the military-industrial complex has won!” But it is, from a legal, political and moral point of view totally unacceptable to let job security and enormous profits for nuclear weapon-makers continue to place life and survival in jeopardy, in blatant disrespect of the most basic of all human rights, the right to life, health and security of person.

In history the first demand of oppressed people once was written laws, and enforcement. This is basic also for a civilized international society. An international system and a culture where international law is respected by all, also the most powerful states, would do a lot to improve human security.

Decades of work for international control and elimination of nuclear weapons may unravel if the mightiest state will not soon start to respect international law and treaty obligations. NATO loyalty is misplaced as long as the leading nation shows no will to make progress in nuclear disarmament. The prospects for this ever to happen would seem to move from bad to worse if the US should elect the presidential candidate who – in relation to the extremely destabilizing National Missile Defense plans – recently proclaimed that US security is more important than old treaties! All NATO member states must insist that international law shall prevail and refuse to be accomplice to criminal nuclear strategies.

The urgent number one task must be to initiate negotiations on a treaty to ban nuclear weapons. International civil society organizations (CSOs) in the Abolition 2000 network have prepared a draft treaty (see www.lcnp.org). The groundwork done, it is high time to sit down and negotiate.

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