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

Chapter II. Assessing NATO States' Compliance with Article VI

Another significant factor in analyzing NATO states' compliance is that the United States acts as de facto leader in NATO. U.S. nuclear policy appears to contemplate increasing options for use of nuclear weapons, and the United States will likely seek to integrate these policies into NATO. Because of the influence of U.S. policy in NATO and the importance of U.S. weapons to the alliance, analysis of U.S. policies apart from those of NATO is required.

A. U.S. Nuclear Policies and Disarmament Obligations

With the Senate's refusal to ratify the CTBT in 1999, the U.S. government began a steady backslide from its disarmament commitments, including the Bush administration's hostility to the CTBT, the U.S. withdrawal from the ABM Treaty and, most recently, the positions articulated in the Nuclear Posture Review and the September 2002 National Security Presidential Directive (NSPD) 17. In our analysis, U.S. actions and planning violate many of the specific measures that NPT states parties undertook as recently as the 2000 Review Conference. We will discuss some of them here.¹¹

There was a further explicit expansion of potential nuclear weapons use under the December 2002 National Security Presidential Directive. That directive sets forth a strategy of counterproliferation to combat weapons of mass destruction, including the threat of use of nuclear weapons. The public version of the directive states: "as with deterrence and prevention, an effective response requires rapid attribution and robust strike capability. We must accelerate efforts to field new capabilities to defeat WMD-related assets."¹⁵ These references suggest a wider role for use of nuclear weapons, either in response to an attack or preemptively. Consistent with this approach, the nuclear weapons called for in the NPR are not just strategic weapons targeted at major cities or other nuclear systems, that is, weapons of last resort, but those that will be "integrated with new non-nuclear strategic capabilities."¹⁶ According to the Senate testimony of non-proliferation expert Joseph Cirincione's, the NPR "sees nuclear weapons as simply another weapon, part of a continuum of military options merging seamlessly with advanced precision-guided munitions."¹⁷ The United States explicitly reserved the prerogative of using nuclear weapons against Iraq, presumably pursuant to this policy.

This policy of viewing nuclear weapons as just another instrument in a military arsenal, which increases the possibility of use of nuclear weapons, has been harshly criticized. For example, a New York Times editorial labeled the United States a "Nuclear Rogue" and stated: "Where the Pentagon review goes very wrong is in lowering the threshold for using nuclear weapons and in undermining the effectiveness of the [NPT]. . ..Nuclear weapons are not just another part of the military arsenal. They are different, and lowering the threshold for their use is reckless folly."¹⁸

In the 2000 Review Conference Final Document, the parties to the NPT agreed to apply "the principle of irreversibility...to nuclear disarmament, nuclear and other related arms control and reduction measures."¹⁹

The reductions contemplated by the Moscow The current strategy for U.S. reductions, which is set forth in the Nuclear Posture Review and the 2002 U.S.-Russian Strategic Offensive Reductions Treaty (also known as the SORT, or the Moscow Treaty), does not comply with this undertaking. The Moscow Treaty requires both Russia and the United States to limit deployed operational strategic weapons to between 1,700 and 2,200 by the year 2012, but does not call for destruction of delivery systems, dismantlement of warheads, verification measures, or de-alerting measures to reduce the operational status of a dangerously large arsenal of weapons still left in place. Moreover, the United States has expressed its intention to maintain at least 2,400 of its removed warheads in a "responsive capability" ready for redeployment within weeks, months, or three years at the latest. This is the first time that a nuclear weapons reduction treaty explicitly allows reversibility of reductions. Also, the Treaty only has a ten-year duration and a simple right to withdrawal,²⁰ theoretically allowing for another build-up of arsenals at virtually any time after 2012.

The reductions called for in the Moscow Treaty are mainly a loose codification of a part of the NPR that calls for the reduction of "operational" strategic deployed nuclear weapons, but which provides that these reductions might be reversed and the weapons redeployed should the United States deem it fit in the long-term.²¹ The goal of the current U.S. reductions is not irreversibility, but rather flexibility. The administration's approach, including the creation of the Moscow Treaty and the withdrawal from the ABM treaty, has resulted in the termination of the existing treaty system - START - that had called for irreversible reductions; Russia pulled out of START II (not yet in force) and negotiations to formalize the agreed framework for irreversible reductions known as START III were also scuttled.

In order to enter into force, the CTBT must be signed and ratified by 44 listed countries that have some form of nuclear technological capability, including commercial or research nuclear reactors. The U.S. Senate voted to reject ratification in 1999,²² despite fervent pleas for ratification from the heads of state of its key NATO allies, Britain, Germany, and France, as well as by Japan. All other NATO states have ratified the treaty. The United States is one of 13 nuclear capable states not to have done so.

The ban against nuclear tests is inextricably linked to the NPT: it is referred to in the NPT preamble and has long been understood to be an essential element of the "cessation of the arms race" commitment under Article VI. As noted above, the ban (and the entry into force of a comprehensive test ban treaty) was also a commitment articulated as part of the 1995 indefinite extension package and was re-iterated in the thirteen steps in the Final Document of the 2000 Review Conference. The merits of a nuclear test ban treaty as an instrument of nonproliferation and, to a modest extent, as an instrument of disarmament are reasonably clear. While the design of some types of rudimentary nuclear weapons can be done without testing, it is essentially impossible to build an arsenal of the type that might be delivered accurately by intercontinental ballistic missiles without testing. Yet, despite its virtues and the fact that the legal commitment not to test has been deemed crucial to the future existence of the NPT, the United States prefers to maintain not only the right to indefinitely possess but also to further develop an already extensive nuclear weapons capability.²³

The Bush administration has indicated that it will not seek ratification of the treaty (though it has not given formal notice of intent not to ratify the treaty), and has engaged in actions that undermine the treaty, including a boycott of the November 2001 UN Conference supporting its entry into force.²⁴ Current White House policy is a reversal from that of the Clinton administration, which supported ratification. However, the Clinton administration's endorsement of the treaty was not intended as a disarmament measure; the administration also created the "Stockpile Stewardship Program" that was designed to allow it to maintain its arsenal without testing. The Stockpile Stewardship program also has the goal of maintaining the scientific and technological basis for the design of new nuclear weapons.²⁵ It is important to note in this context the U.S. nuclear weapons laboratories have a central role in certifying that the U.S. arsenal is safe and reliable and that there is no need for testing. Should laboratory budgets come under pressure, especially if important elements of the stockpile stewardship program fail to perform as expected, they will have every incentive to call for a resumption of testing.

The Nuclear Weapon Test Moratoria

All five NPT nuclear weapon states continue to affirm the nuclear test moratorium, although the NPR contends that the United States needs to "maintain readiness to resume underground nuclear testing if required."²⁶ Currently, it would take roughly two to three years to be prepared to test nuclear weapons again. Testing by the United States may precipitate testing by other states, which in turn would be a grave threat to the very stability of the NPT regime. A study performed for the U.S. Defense Threat Reduction Agency predicted a strong response if the United States breaks the existing testing moratorium:

The study also noted concern that testing may "trigger aggressive responses" from Russia and China. Consequences of the United States breaking its moratoria could include resumption of testing by other states, and could lead to the breakdown of the NPT.

The 2000 NPT Review Conference Final Document called for "The early entry into force and full implementation of START II and the 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, in accordance with its provisions."²⁸ The ABM Treaty was created by the United States and the Soviet Union in 1972 in the context of their growing armories of missiles that had several warheads, each of which could be independently targeted. These weapons were perceived to raise the possibility of a surprise first strike whose goal would be to wipe out most of the strategic nuclear forces of the other side. An extensive defense system could then prevent the remaining nuclear warheads of the adversary from harming its territory. Such a possibility is the central reason that missile defenses are viewed as weapons that create an offensive capability that increases the danger of nuclear war.

The ABM treaty was supposed to maintain the credibility of retaliatory deterrence based on the threat of a successful second strike, also known as the policy of Mutually Assured Destruction (MAD). The ABM Treaty was unusual in also putting limits on future technological development in the interest of preserving the "strategic balance" between the United States and the Soviet Union.

Reversing its view on preserving this strategic balance, the United States withdrew from the ABM Treaty and now emphasizes the role of missile defenses in its overall military strategy. According to the NPR, limited deployment of strategic missile defenses may occur by 2008. The U.S. withdrawal from the ABM Treaty is the first formal unilateral withdrawal of a major power from a nuclear arms control treaty after it has been put into effect.²⁹

The 2000 Review Conference Final Document recognized the ABM Treaty as a basis for further reductions, and now that it has been terminated, it does appear that such reductions will not be undertaken pursuant to any international agreement (see discussion above). Some fear that the build up of missile defenses by the United States will spark an arms race in Asia, by stimulating China, which is already modernizing its arsenal, to build more nuclear weapons, which may, in turn, cause India and Pakistan to enlarge their arsenals.

In sum, recent policy decisions of the United States - including the Nuclear Posture Review, the Strategic Offensive Reduction Treaty with Russia, the explicit opposition to CTBT ratification by President Bush, and the unilateral withdrawal from the ABM Treaty - emphasize the continued reliance on and, indeed, expansion of the options for using nuclear weapons. These policies are in contravention of the more and more explicit commitments to nuclear disarmament that have evolved since 1995. These commitments are legal obligations of the United States. Rejecting them undermines the global efforts to enhance security through a multilateral framework.

The U.S. policies claiming a right to a nuclear response to chemical and biological weapons and the targeting of non-nuclear weapon states also violate the U.S. negative security assurances. Those political assurances were part of the bargain underlying the NPT, and have arguably become legally binding, notably because they were reiterated in connection with the indefinite extension of the NPT in 1995.³⁰ The other four NPT nuclear weapon states made similar assurances.³¹

The 1995 U.S. negative security assurance reads:

The use of nuclear weapons against any NPT-compliant state not acting in association with a nuclear weapon state would violate these assurances.

The NPR reportedly contains contingency planning for use of nuclear weapons against Russia, China, North Korea, Iraq, Iran, Syria, and Libya.³³ The 2002 Presidential Directive appears to be consistent with the approach of targeting specific states: according to the Washington Post, classified portions of the directive name Iran, Syria, North Korea and Libya "among the countries that are the central focus of the new U.S. approach."³⁴ Of these states, Iraq, Iran, Syria and Libya have not been officially declared as nuclear weapon states, and so to target them is contrary to U.S. negative security assurances.³⁵

These aspects of U.S. nuclear weapons posture appear to be a continuation of prior policies that were in place when the United States signed on to this assurance, and thus were also in conflict with its NPT commitments.³⁶ What is new now in this regard is the reassertion of these policies when the vagueness in regard to the commitments of the United States and other nuclear weapons states parties to the NPT has been removed by the developments since 1995. This targeting policy, when viewed in conjunction with the possibility that the United States is seeking more usable weapons, such as low-yield bunker busting weapons,³⁷ puts the United States in clear contravention of its disarmament commitments, and increase the possibility of a first use of a nuclear weapon by the United States.

As the United States and its NATO allies have acknowledged, all NPT parties are required to play a role in ensuring the fulfillment of the NPT's goals, including creating the conditions for nuclear disarmament. The United States reaffirmed this principle during the 2000 NPT Review Conference: "Compliance with Articles II and III by non-nuclear-weapon states is essential if the goals of the Treaty are to be achieved."³⁸ While this statement was made in the context of the NPT violations of Iraq and North Korea, it clearly applies to all non-nuclear NPT parties, as they have all committed to the elimination of nuclear weapons and to undertaking steps to achieve that goal.

NATO has acknowledged the applicability of Article VI, "They see the NPT as a balanced treaty in which the commitments of non-proliferation and disarmament are both important,"³⁹ and has reaffirmed its commitment to implementing the conclusions of the 2000 NPT review conference.⁴⁰ Because all NATO states rely on defense by nuclear weapons, NATO non-nuclear weapons states must be held to the same Article VI standards as those states entitled to possess nuclear weapons. As such, non-nuclear weapons NATO states should have made demonstrable steps to end their reliance on defense involving nuclear weapons. Instead, NATO doctrine considers nuclear weapons the supreme guarantee of NATO's security, and intends to rely on them for the foreseeable future. Their commitment to the CTBT is also being challenged by the possibility of U.S. resuming testing. This analysis suggests not only the potential destruction of the NPT and the further de-legitimization of the CTBT, but that NATO states' consent to U.S. policies assists in undermining the legal framework regulating security affairs - a system on which NATO is itself based.

The declared purpose of deterrence as it existed at the creation of NATO and through the Cold War was that it was intended to ward off the threat of conventional or nuclear Soviet aggression. With the end of the Cold War and the buildup of the militaries of Western countries, the capabilities of the NATO alliance now far surpass any other state. The combined military budget of NATO and its members is about three-fifths of percent of the global budget.⁴¹ The threat of massive conventional or nuclear attack by another state no longer exists. The 85% reduction of NATO's sub-strategic nuclear forces since 1991 reflects that reality.⁴² Nevertheless, NATO still holds firm to a policy of nuclear deterrence. The 1999 NATO Strategic Concept, which presents the framework for NATO's operations and expresses NATO's purpose and security tasks, set forth the following principle in its guideline for alliance forces:

The Strategic Concept emphasizes that Europe-based nuclear forces committed to NATO play a special role; they "provide an essential political and military link between the European and the North American members of the Alliance."⁴⁴

A June 2002 meeting of NATO's Defence Planning and Nuclear Planning Groups reaffirmed the "great value" placed on these nuclear forces and noted that in this regard, "deterrence and defence, along with arms control and non-proliferation, will continue to play a major role in the achievement of the Alliance's security objectives."⁴⁵ But this is an argument that encourages proliferation. If the alliance that has by far the most powerful and vast conventional arsenal in the world needs nuclear weapons for deterrence, what about smaller countries? This deterrence policy is counter both to the aim of disarmament, to the spirit of negative security assurances, and of non-proliferation.

In recent years, several non-nuclear members of NATO have voiced opposition to the enduring reliance on nuclear weapons. In particular, Germany and Canada have argued this point. For instance, the Canadian Standing Committee on Foreign Affairs and International Trade has stated that that the viability of the NPT and achievement of disarmament require reducing "the political legitimacy and value of nuclear weapons."⁴⁷ However, efforts by its NATO allies to persuade the United States to take steps in the spirit of its NPT commitments have so far ended in failure.

Whether U.S. expansion of options for using nuclear weapons such as those contained in the Nuclear Posture Review, will be further integrated into NATO policy is still in debate. The United States has certainly been viewed as making this push, but observers have noted a resistance by NATO to incorporating new U.S. preemptive strategies using conventional or nuclear forces.⁴⁸ Even if NATO countries are able to resist full integration of U.S. policies, NATO will not adopt policies that are contrary to U.S. positions, as NATO decisions are adopted by consensus.

All NATO states have ratified the CTBT, with the exception of the United States. Even though the treaty has not entered into force, under the laws that govern treaty making, states must not take actions that would defeat the object and purpose of the treaty.⁴⁹ Article I of the Treaty states the principal commitment for all states parties, including prohibiting parties from encouraging any other state to carry out nuclear tests of any kind.

NATO has, in the past, recognized the obligation to take action to promote the treaty's entry into force. The 2001 NATO Handbook states:

NATO states, notably Canada, Britain, France, and Germany, all key allies of the United States, have made urgent appeals to the United States to ratify the CTBT. However NATO is no longer in a position to endorse the CTBT's entry into force because U.S. opposition prohibits consensus on the issue. For example, a June 2002 press statement from the NATO Defence Planning Committee and Nuclear Planning Group expresses support for the existing moratoria on testing, but mentions nothing of the CTBT.⁵¹

And despite vociferous pressure from its NATO allies to adopt the CTBT, United States appears positioned to resume testing. The Bush administration has no intention of re-submitting the CTBT for ratification, since it wants to keep open the option of nuclear testing. That puts it in violation of the above-cited NATO policy to work to get the ratification needed for an "early entry into force" of the CTBT. Hence, a nuclear partnership with the United States by other NATO countries, which have all ratified the CTBT already, puts them in a dubious position of abetting a violation of NATO policy.

If the United States does resume testing, we believe that it will cause NATO states to violate the spirit of their CTBT commitments. NATO integrates much of U.S. nuclear policy, and many NATO states are involved in the planning aspects of use of nuclear weapons on behalf of NATO. If the United States tests a nuclear weapon, any new weapons resulting from the testing may be integrated into NATO policy. This would be incompatible with the obligations of the NATO allies of the United States under the second paragraph of Article I of the CTBT, quoted above, according to which parties to the treaty cannot encourage any other country to carry out a nuclear explosion.

For NATO states to continue involvement with nuclear planning after the United States tests a weapon would mean that NATO states are tacitly encouraging testing by going along with U.S. nuclear policy. It is incumbent on the NATO allies of the United States to do everything they can to make this contradiction between their NATO membership and the resumption of testing clear in order to dissuade the United States from carrying out a nuclear test. In addition to violating at least the spirit of the CTBT, any encouragement of testing weapons would undermine the disarmament commitments of the NPT, which recognizes a test ban as a cornerstone of the global non-proliferation regime.⁵²

The NATO nuclear sharing arrangement comprises two components: one is the political mechanism, known as the Nuclear Planning Group, which consists of consultations among defense ministers of NATO member states (with the exception of France)⁵³ regarding specific policies relating to nuclear forces. The Nuclear Planning Group consults on a broad range of nuclear issues: "safety, security and survivability of nuclear weapons;" deployment issues; arms control and proliferation.⁵⁴

The second component of nuclear sharing is the operational sharing of nuclear weapons whereby the United States maintains control of the weapons, which are free fall bombs in dual-use aircraft, until such time that a decision to use them has been made. At that point, control of the weapons is transferred to those other NATO members on whose territory they are stored. As a result of this policy, non-nuclear weapon states "have the capability to conduct a nuclear attack, using U.S. nuclear weapons and national delivery means during times of war."⁵⁵ Estimates tally the number of weapons between 150 and 180 weapons in thirteen bases in seven NATO countries - Belgium, Germany, Greece, Italy, Netherlands, Turkey and Britain. All except Britain are non-nuclear parties to the NPT. Most if not all of the weapons are B-61 free fall nuclear bombs.⁵⁶

Both aspects of nuclear sharing are intended to allow non-nuclear weapon countries to be able to use weapons at a time of war. There is a strong argument that the operational aspect, that is the physical placement of nuclear weapons on non-nuclear weapon territory, violates the non-transfer and non-acquisition provisions of the NPT, even though the NATO arrangement pre-dated the entry into force of the NPT.⁵⁷ Article I of the NPT prohibits nuclear weapon states parties from transferring weapons to non-nuclear states:

Article II creates a corresponding requirement for non-nuclear weapon states:

Nevertheless, the United States asserts that the program complies with the NPT. Reduced to its essence, the U.S. contention is that the transfer of control has not yet occurred, and would only take place once a war had begun, and at that point, the NPT "would no longer be controlling" (see below).⁵⁸

This argument in defense of the NATO nuclear sharing was first articulated in a document entitled "Questions on the Draft Non-Proliferation Treaty Asked by US Allies Together with Answers Given by the United States" which was submitted along with the Letter of Submittal on the NPT sent to the US president by the Secretary of State, Dean Rusk, on July 2, 1968.⁵⁹

It includes the following relevant interpretations of the obligations under Articles I and II:

The rationale relied upon by the United States that it may transfer its weapons to NATO non-nuclear weapon states raises several concerns. First, the negotiating record of the NPT reveals that many countries may not have been aware that the United States maintained this interpretation of its NPT obligations. According to the U.S. Senate hearings on ratification of the NPT, the Question and Answer document was presented to the Soviet Union and "key members" of the Eighteen Nation Disarmament Committee prior to the time that the NPT opened for signature on July 1, 1968,⁶¹ but there is no indication that other states were similarly apprised. While the document reportedly received no objection from the Soviet Union or the unspecified "key members" of the ENDC, the remainder of states may not have known the U.S. interpretation until long after they had signed the treaty, when the document was made public as part of the Senate ratification hearings.

The claim that the NPT does not control in times of war is also troubling. The stated rationale for this interpretation is that, as set forth in the preamble, the NPT is meant "to make every effort to avert the danger of such a war," meaning nuclear war, which is language contained in the preamble. If the NPT is unable to avert a war, the U.S. asserts, then it no longer is controlling on the parties. However, this supposed exception is not found in the text of the NPT. The US argument begs the question of what type of war would render the treaty void. The Johnson administration referred to a "general war." The administration did not identify which types of conflicts would make up a general war, but explained what conditions would not constitute a general war: "At the other extreme would be a limited, local conflict, not involving a nuclear weapon-state. In this case the treaty would remain in force."⁶²

The term general war has been defined by the U.S. Department of Defense to mean "[a]rmed conflict between major powers in which the total resources of the belligerents are employed, and the national survival of a major belligerent is in jeopardy."⁶³ This suggests that general war is one in which conventional war can develop into a nuclear conflict between major powers or one that begins with nuclear weapons use. The Pentagon's definition of general war does not rule out the possibility of first use.⁶⁴ While there is no official parallel definition of "general war" that has been adopted by NATO, the U.S. definition could lead to a situation in Europe in which the control of nuclear weapons could be transferred to NATO non-nuclear weapon states under a variety of circumstances. In other words, the U.S. approach to general war gives it and NATO a good deal of flexibility in when nuclear sharing and nuclear weapons use might officially be considered legitimate.

This doctrine creates an unstable system under the NPT that allows NATO states to create circumstances for an automatic exemption to terminate the treaty's obligations without complying with the terms of the NPT withdrawal provision.⁶⁵ Belgian Minister of Foreign Affairs Louis Michel defended this view in a speech to Belgian Parliament, where he stated that the NPT "does not apply in time of war. According to the Vienna Convention [on the law of treaties] arms-related treaties or treaties with such implications are suspended in time of war."⁶⁶

However, the Vienna Convention makes no specific reference to suspension of any treaties in time of war. It does permit suspension of operation of a treaty if a material breach has occurred, ⁶⁷ but it is not clear that U.S. policy for declaring the NPT as "not controlling" requires a material breach of the NPT by another state. The Vienna Convention also requires unanimous agreement for the suspension of operation to apply to all parties. Moreover, there are specific provisions that any state must follow to invoke a suspension of the operation of a treaty, which include three months' written notice allowing all parties to raise objections.⁶⁸ In order to maintain the stability and credibility of the regime, both the NPT and the laws governing treaty making place restraints on states' ability to terminate their obligations. Viewed in the context of the increasingly specific commitments to disarmament, the continuation of this policy where NATO state may receive control of nuclear weapons is certainly violating the spirit of Article VI, and is also inconsistent with the NPT's non-acquisition provisions.

The 1999 Strategic Concept recognizes the changes in the world military situation since the end of the Cold War and notes that "NATO's ability to defuse a crisis through diplomatic and other means or, should it be necessary, to mount a successful conventional defence has significantly improved." It continues, "The circumstances in which any use of nuclear weapons might have to be contemplated by them are therefore extremely remote." While these circumstances may be perceived as remote (more on that subject below), and while a first use option is not explicitly mentioned in the document in those terms, NATO does not renounce the possibility that it may strike first with nuclear weapons, even against a non-nuclear state. NATO has described its policy regarding the possible first use of nuclear weapons as follows:

This statement clearly implies that while NATO does not have a policy of necessarily resorting to nuclear weapons, it does keep open the option of first use even in a conflict with a non-nuclear state. Before addressing the legal significance of a possible first use policy, the security context must be considered. The primary rationale for the first-use policy, the Soviet threat, has been rendered obsolete. As explained by Jack Mendelsohn, the Executive Director of LAWS:

Opponents of a no-first-use policy emphasize the "calculated ambiguity" that may deter an aggressor from using chemical or biological weapons, because these actions may be met by a nuclear response. However, the vast superiority of conventional forces as a deterrent diminishes the need to rely on a calculated ambiguity. Moreover, some analysts suggest that the threat of first use as a deterrent to a chemical or biological attack is less credible now that similar threats made during the first gulf war have been revealed to be posturing.⁷¹

The first use of nuclear weapons in reprisal for chemical or biological attacks would also violate the laws of war. The use of nuclear weapons, or any weapon, including in reprisal, must meet the fundamental requirements of necessity, proportionality, and discrimination. Thus the International Court of Justice affirmed that states must "never use weapons that are incapable of distinguishing between civilian and military targets." There are no realistic situations in which nuclear weapons used in response to a biological or chemical attack could meet those requirements.

Moreover, there is a clear contradiction in NATO retaining the possibility of first use, including against non-nuclear weapon states and the NATO nuclear weapon states' negative security assurances, which have arguably achieved legal status because non-nuclear weapon states demanded these assurances in exchange for the indefinite extension of the NPT in 1995. If the nuclear weapon states have made such a pledge, then it is illogical that an alliance of these and non-nuclear weapon states should codify a lesser standard. However, the United States is already seen as violating its assurances with its list of non nuclear weapon state target countries, and its possible nuclear response to chemical and biological weapons. While NATO policy does not have a list of target states as yet, its overall policy implies that any country could be a target of NATO nuclear weapons use. Moreover, as noted above, a possible first use policy against non-nuclear states is not in keeping with Security Council Resolution 984 of 1995, which noted negative security assurances with approval.

NATO describes the possibility of use of nuclear weapons as "extremely remote," yet NATO is expanding its potential for armed conflict with a new policy permitting out of area engagement. According to the Washington Post, NATO "quietly negotiated a new agreement" for a global role, which was ratified at a meeting in Reykjavik on May 14, 2002.⁷² The new global NATO objectives were confirmed in the Final Declaration of the Prague 2002 Summit: NATO's global objectives include an ability "to field forces that can move quickly to wherever they are needed, upon decision by the North Atlantic Council, to sustain operations over distance and time, including in an environment where they might be faced with nuclear, biological and chemical threats, and to achieve their objectives."⁷³ To meet these objectives, NATO announced the creation of a "NATO Response Force (NRF) consisting of a technologically advanced, flexible, deployable, interoperable and sustainable force including land, sea, and air elements ready to move quickly to wherever needed, as decided by the Council."⁷⁴

NATO began conducting out of area operations during the 1990s in Bosnia and Yugoslavia. Those operations were purportedly carried out for humanitarian reasons. There are no such limits placed on future out of area engagement; rather the Prague Summit Declaration states that the purpose of these changes is to allow NATO to respond to security threats including those "posed by terrorism and by the proliferation of weapons of mass destruction and their means of delivery."⁷⁵ On August 11, 2003, NATO took over command of the security force in Afghanistan from the United Nations, though formally the operation remains under the United Nations mandate. This is the first NATO troop deployment outside Europe.⁷⁶

With a policy in place that allows first use, the possibility that non-nuclear weapon states may receive control over use of nuclear weapons (as described in the discussion on nuclear sharing), and an expanded mandate for NATO engagement, the theoretical possibilities for NATO to use a nuclear weapon have expanded, in contravention of the requirement for a diminishing role for nuclear weapons pledged by NPT states parties in the 2000 Review Conference final declaration. In failing to live up to the spirit of their NPT commitments, NATO states are also signaling to others the strategic necessity of nuclear weapons under a variety of circumstances. As the Lawyers Alliance for World Security (LAWS) asserts, if NATO continues its policy permitting the first use of nuclear weapons, "it will be increasingly difficult to convince technologically sophisticated and/or politically ambitious states to continue to forswear the nuclear option."⁷⁷

As noted above, several non-nuclear members of NATO have voiced support for a diminishing role for nuclear weapons, and in 1998 (in anticipation of the 1999 NATO 50^th Anniversary Summit) Germany specifically urged that a no-first-use policy be adopted to move NATO closer to nuclear disarmament.⁷⁸ The proposal, however, did not receive endorsement from any other NATO state.

In sum, the refusal to abandon the possibility of first use violates the NPT commitment to a diminishing role for nuclear weapons; it increases the possibility of the use of nuclear weapons; it signals to other countries the political and military value of nuclear weapons and it goes against the negative security assurances pledged by the nuclear weapon NATO members Britain, France and the United States, in conjunction with the indefinite extension of the NPT. On the other hand, the reasons for maintaining a first-use policy are dubious at best. The same arguments that we have made above regarding no-first-use also apply to the U.S.-Japanese alliance. Japan also must demand that the U.S. adopt a no-first-use policy and on no account threaten to use or actually use nuclear weapons first on its behalf in any conflict. Yet, in an alarming development, there is increasing discussion in Japan whether and under what circumstances Japan might itself acquire nuclear weapons.⁷⁹

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