NATO, Nuclear Weapons and International Law

Tasneem Jamal

Author
Beverley J. Tollefson Delong

Beverley J. Tollefson Delong is President, Lawyers for Social Responsibility

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?

We are deeply concerned over NATO’s current position with respect to the use and threat of use of nuclear weapons.

We strongly believe that Canada’s actions within NATO should comply with international law. The North Atlantic Treaty created NATO in 1949. The Preamble states that NATO is founded on respect for the rule of law. Article I of the North Atlantic Treaty of 1949 states:

The Parties undertake, as set forth in the Charter of the United Nations, to settle any intemational dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

We believe that NATO is in contravention of both of these commitments. Specifically, we are concerned about NATO’s willingness to resolve political problems through violence, specifically through the threat of use of nuclear weapons

This brief will discuss these two topics with respect to NATO’s actions:

A. NATO is acting unlawfully in continuing to rely on the threat and use of nuclear weapons

B. The member states of NATO are legally required to negotiate the elimination of nuclear weapons.

A. NATO is acting unlawfully in continuing to rely on the threat and use of nuclear weapons.

What is the law on nuclear weapons?

On July 8, 1996, the International Court of Justice responded to the request of the United Nations General Assembly for an Advisory Opinion (the “1996 Opinion”) on the legality of the threat and use of nuclear weapons. This Court is the highest court in the world and provides the most authoritative legal opinion available. The Court received argument and evidence from numerous states and individuals. It concluded:

“The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.”

(105(2))E)

A Statement of International Law on Nuclear Weapons describing the implications of the 1996 Opinion is attached. It has been signed by Canadian lawyers and Professors of Law who are knowledgeable in this area. They concluded that:

“Any use of any weapons must comply with the rules of international humanitarian law. A state may not resort to use of weapons unless the state is the subject of an armed attack and the Security Council has not as yet intervened to assist. Then the use of any weapons:

a. must be proportional to the initial attack
b. must be necessary for effective self-defence
c. must not be directed at civilians or civilian objects
d. must be used in a manner that makes it possible to discriminate between military targets and civilian non-targets
e. must not cause unnecessary or aggravated suffering to combatants
f. must not affect States that are not parties to the conflict, and
g. must not cause severe’ widespread, or long-term damage to the environment.

This is just a partial list of the rules established by the UN Charter and the Geneva Conventions which govern the use of weapons during war.

Clearly the use of a modem nuclear weapon with its horrendous effects will not comply with these rules. Thus the use and the threat of use of nuclear weapons is, for all practical purposes, illegal under international law. We ignore that law at the peril of all humanity.

What actions does NATO take with respect to nuclear weapons?

1. NATO (including Canada) provides moral, financial, political and diplomatic support for the use of nuclear weapons through NATO’s governing bodies.

2. NATO’s strategy documents indicate the continuing reliance of those states on nuclear weapons rather than their compliance with the legal requirement to negotiate the elimination of nuclear weapons. More specifically, the North Atlantic Council met in Washington, DC on April 23rd and 24th, 1999 and the resultant Alliance Strategic Concept approved of the following:

“62. The fundamental purpose of the nuclear forces of the Allies is political: to preserve peace and prevent coercion and any kind of war. They will continue to fulfil an essential role by ensuring uncertainty in the mind of any aggressor about the nature of the Allies’ response to military aggression. They demonstrate that aggression of any kind is not a rational option. The supreme guarantee of the security of the allies is provided by the strategic nuclear forces of the Alliance, particularly those of the United States; the independent nuclear forces of the United Kingdom and France, which have a deterrent role of their own, contribute to the overall deterrence and security of the Allies.” (underlining inserted)

NATO’s Defence Planning and Nuclear Planning Group met in December and released a December 2 1999 Press Communique M-DPC/NPG-2(99) 157 which states:

“we confirmed the principles underpinning the nuclear forces of the Allies as set out in the new Strategic Concept. These forces continue to have a fundamental political purpose: to preserve peace and prevent coercion and any kind of war. They play an essential role by ensuring uncertainty in the mind of any aggressor about the nature of the Allies’ response to military aggression and by providing an essential political and military link between the European and North America members of the Alliance. The Alliance will therefore maintain adequate nuclear forces in Europe at the minimum level sufficient to preserve peace and stability. Taking account of the present security situation, we affirmed that the circumstances in which any use of nuclear weapons might have to be contemplated by Allies are extremely remote.” (underlining inserted)

NATO thus makes clear its willingness to threaten and use a weapon which cannot be used in compliance with international humanitarian law. Canada should not be a party to illegality.

3. NATO is in breach of international law in its failure to confirm its commitment to the law regarding collective self-defence in the context of first use of nuclear weapons. This lack of a “No first use” pledge places NATO in potential breach of the international rules prohibiting a disproportionate response to an attack and in potential breach of the rules prohibiting attacks on civilians and civilian targets. It also fails to acknowledge the security assurances offered formally at the United Nations in Resolution 995 (1995) wherein the nuclear weapons states offered security assurances against the use of nuclear weapons to non-nuclear weapons states Parties to the NPT.

4. NATO’s infrastructure allows the deployment of some 150 nuclear weapons in Belgium, Italy, Germany, Greece, the Netherlands, Turkey and the UK. This sharing of nuclear weapons is a breach of Article 1 of the NPT wherein each nuclear weapons state undertakes not to transfer nuclear weapons or control over such weapons to any non-nuclear-weapon state.

5. NATO members such as Canada also support the use of nuclear weapons use when the Government allows the transit of nuclear-armed aircraft and vessels in Canadian territory, continue to allow the testing of weapons with nuclear capability and their delivery vehicles in Canadian territory, and share data with the U.S. which would be required for the programming of attacks by nuclear weaponry.

Conclusions:

Canada declares itself to be a supporter of international law and the non-proliferation regime. Contrary to this, our participation in NATO makes us a party to the planning for the illegal use of nuclear weapons.

In view of the number of armed conflicts around the globe since WWII, we have grave reservations as to the validity of NATO’s assertion that “aggression of any kind is not a rational option.” What is absolutely clear is that use of nuclear weapons is not a rational option and that their mere existence threatens life on this planet.

NATO’s statements that it “relies” on nuclear weapons serve to justify and encourage the acquisition of nuclear weapons by other states; thus proliferation continues to occur.

Action Required:

1) This Committee should call for a motion calling for NATO member states to cease planning for the use of nuclear weapons. NATO must proceed to immediate de-alerting of nuclear weapons, separation of warheads from missiles and placement of all nuclear weaponry and fissile material under international supervision.

2) This Committee should encourage Canadians involved in the NATO review to:

a) call on NATO nuclear states to immediately reinstate their policy that NATO will never be the first to use nuclear weapons.

b) call for a substantial alteration in NATO’s policy in describing its ‘reliance’ upon nuclear weapons. NATO needs to sharply lessen the political value and legitimacy of these weapons in its practice, strategic planning and documentation.

B. The member states of NATO are legally required to negotiate the elimination of nuclear weapons

What is the law?

In its 1996 Opinion, the International Court of Justice reviewed the language of Article Vl of the Treaty on the Non-Proliferation of Nuclear Weapons (the “NPT”) 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.” (Para. 1 05(2)(F))

What has NATO done?

We have observed the failure of the nuclear weapons states to comply with Article Vl of the NPT. There are now almost as many nuclear weapons in existence as there were when the NPT was signed in 1968. We note also the statements by the nuclear weapons states of their dependence upon nuclear weapons for “defence” as indicated in recent statements from those governments and their military alliances.

Contrary to their obligation to negotiate the elimination of nuclear weapons, all NATO member states that own nuclear weapons have voted against the two key United Nations Resolutions that call for the commencement of negotiations. Canada has, in the company of most of the non-nuclear NATO states, abstained on this vote. This is obviously a start toward an independent stance from the nuclear states in NATO, but Canada’s legal obligation requires it to go further and vote “Yes” on these Resolutions.

Negotiations in the Conference on Disarmament on the Fissile Material Cut-off Treaty have been blocked by the nuclear weapons states.

We also note the failure of certain states, particularly the United States, to comply with the three promises contained under the Principles and Objectives adopted at the 1995 NPT Review and Extension Conference: that is, to complete the Comprehensive Test Ban Treaty by 1996, to commence and conclude a Fissile Material Cut-Off Treaty and to pursue efforts to reduce nuclear weapons globally with the ultimate goal of eliminating them.

Conclusion: NATO’s nuclear-armed member states are failing to abide by their obligation under the Non-Proliferation Treaty to negotiate an agreement for the elimination of nuclear weapons.

Action proposed:

1) In order to comply with our legal obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, Canada must lead the other non-nuclear weapons states and place a “Yes” vote on the New Agenda Coalition resolution calling for negotiations next year. This Committee could place a motion before the Senate supporting this action.
This paper was written by Beverley J. Tollefson Delong and edited and approved by the Board of Directors of Lawyers for Social Responsibility. 

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