Chapter III. Role of Non-Nuclear NATO Members in Promoting Disarmament

Chapter I. Disarmament Obligations and the NPT

NATO policy, which maintains an enduring reliance on nuclear weapons, stands in contradiction to the pledge of its member states to nuclear disarmament. This contradiction could be brushed under the rug as long as the United States, and by extension NATO, could credibly claim that it was making progress towards the fulfillment of its nuclear disarmament obligations. Prior to 1999, the United States had made progress on disarmament, including the Strategic Arms Reduction Treaties (START) with Russia, the test moratorium, the signing of the CTBT, and NATO's 85% reduction of its sub-strategic forces since 1991. However, the rejection of the CTBT by the U.S. Senate in 1999, the announcement of the NATO doctrine in 1999 (see below), the Bush administration's hostility to the CTBT, the U.S. withdrawal from the ABM Treaty, the U.S. Nuclear Posture Review of 2002, among other actions, point clearly to the conclusion that that the United States does not intend to fulfill its nuclear disarmament obligations and intends, on the contrary, to continue reliance on nuclear weapons for the indefinite future.⁴ Because the United States is the de facto leader of NATO, this conclusion will inevitably impact the NATO's nuclear policy. All NATO states, but particularly those that have forsworn acquisition of nuclear weapons, must assess how NATO military strategies may compromise their commitments made under the NPT.

The NPT is by far the most important and vital arrangement for protecting against the proliferation of nuclear weapons. Only India, Israel and Pakistan are completely outside the NPT regime. North Korea announced its withdrawal from the NPT in January 2003, with immediate effect (contrary to the three-month notice requirement of the treaty). Despite some setbacks, including two well-established violations of the non-proliferation provisions,⁵ the NPT has largely succeeded in achieving its goal of non-proliferation. One of the most extraordinary accomplishments of the NPT has been its role as the legal instrument through which several states' announced the rollback and termination of their nuclear programs. Once they had done that, they acceded to the NPT as non-nuclear states.⁶ The NPT is also the only legal instrument which requires its parties, including nuclear weapon parties, to act to achieve complete nuclear disarmament.

The NPT includes five nuclear weapon states (three of which are in NATO) and 182 non-nuclear weapon states.⁷ As part of their bargain with non-nuclear parties to the NPT that renounced the acquisition of nuclear weapons, the five nuclear weapons states parties agreed to achieve complete nuclear disarmament. Specifically, under NPT Article VI, parties agree 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, and on a treaty on general and complete disarmament under strict and effective international control."

The mandate of Article VI was vague, however, and nuclear weapons states relied on that vagueness to ignore their disarmament commitments. Before the NPT-related developments of the 1995-2000 period, the non-nuclear members of NATO might have relied on the Cold War confrontation in Europe and the vagueness of Article VI of the NPT to avoid addressing their disarmament obligations under the treaty. That is no longer a tenable position. Having subscribed to the Principles and Objectives of 1995 and to the Final Document of 2000, there is now no question that NPT parties, and the nuclear weapon states in particular, have explicit obligations as parties to the NPT to further the goal of complete nuclear disarmament and to achieve it. These obligations include specific, measurable, steady, and irreversible steps towards that goal.

In 1995, the year that the NPT was due to expire unless extended, the United States and other nuclear weapon states pressed for the treaty to be extended indefinitely. The other NPT parties agreed to the indefinite extension provided that nuclear weapons states committed to a statement of "Principles and Objectives for Nuclear Non-Proliferation and Disarmament." The Principles and Objectives, which were unanimously agreed to by all parties to the NPT, explicitly set forth measures regarding the implementation and fulfillment of the Article VI obligation of nuclear disarmament. These included, among other commitments, the "determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goal of eliminating those weapons, and by all States of general and complete disarmament under strict and effective international control."⁸ The specific immediate commitments included completion of a comprehensive test ban treaty by 1996. Although the Principles and Objectives are political, and not legally binding in the same sense as the treaty itself, they constitute an elaboration of the process of the achievement of the central disarmament goal of the treaty. They have political weight because they are commitments tied to a binding legal decision to extend the treaty indefinitely, and were made in furtherance of the nuclear disarmament goal of the treaty.

B. Article VI Interpretation by the International Court of Justice

In 1996, the International Court of Justice (ICJ), the judicial branch of the United Nations, offered another interpretation of the Article VI obligation in its ruling on the legality of the threat or use of nuclear weapons, an advisory opinion issued at the request of the UN General Assembly. The ICJ held that the threat or use of nuclear weapons was "generally" contrary to international law. While the Court was unable to reach a definitive conclusion regarding threat or use in an extreme circumstance of self-defense in which the very survival of a state is at risk, it was unanimous and specific in its interpretation of Article VI of the NPT. In that regard, the Court unanimously held that Article VI of the NPT requires the nuclear weapons states "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."⁹

The ICJ's unanimous opinion that the NPT required the achievement of complete nuclear disarmament added legal weight to the Principles and Objectives in regard to the same goal that had been unanimously agreed upon by the NPT parties in 1995.

The April 2000 NPT Review Conference further interpreted the Article VI disarmament obligation. The Final Document of the 2000 NPT Review Conference included 13 "practical steps for the systematic and progressive efforts to achieve nuclear disarmament."¹⁰ A key element was "an unequivocal undertaking by the nuclear-weapon states to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all states parties are committed under Article VI" (step 6). The language of step 6 reflects a reaffirmation of the interpretation of the ICJ that the parties to the NPT, and specifically those among them that possess nuclear weapons, must achieve complete nuclear disarmament. This was a considerable advance over the 1995 language of the Principles and Objectives, which stated that complete nuclear disarmament was an "ultimate goal" thereby leaving its achievement to the indefinite future.

Another significant advance beyond the 1995 Principles and Objectives, which committed parties to the vague "systematic and progressive steps" towards complete disarmament, is the requirement that the steps be irreversible. In other words, nuclear weapons once eliminated from the arsenal must not be reactivated or redeployed. Reductions in numbers of weapons must not be reversed. And new developments in technology must not lead to development of new nuclear weapons. In furtherance of these general goals, the 2000 NPT Review Conference Final Document also noted the importance and urgency of gaining ratifications of the CTBT, and calls for maintenance of the test moratoria pending entry into force of the CTBT. Like the commitments undertaken in conjunction with the indefinite extension of the NPT, these steps are widely understood to be "political" rather than "legal" in nature. However, the steps were adopted without objection by the Review Conference and, as such, represent all NPT states' view of what Article VI requires as of the year 2000.

When taken together, the achievements of 1995, 1996 and 2000 have converted the NPT into an unequivocal instrument for the complete and irreversible elimination of nuclear weapons, a commitment that must be met by all parties to the NPT.

Footnotes

⁴ The analysis regarding the United States role in security related treaties is largely based on Nicole Deller, Arjun Makhijani, John Burroughs, eds., Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties (New York: Apex Press, 2003). For an analysis of nuclear treaties and U.S. compliance, see Chapters 2, 3, and 4.

¹⁰ For the complete list of the thirteen steps, see pages 14-15 of 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons. "Final Document." Volume 1, Part 1. On the web at http://disarmament.un.org:8080/wmd/npt/2000FD.pdf.

Next: Chapter II. Assessing NATO States' Compliance with Article VI