Diplomatic Judo: The NPT and the Abolition of Nuclear Weapons

By Zia Mian and M. V. Ramana

Introduction

Progress on nuclear arms control has become a case of one step forward, two steps back. Despite the end of the Cold War and collapse of the Soviet Union, the conclusion of a Comprehensive Test Ban Treaty, after more than forty years of effort, and despite the judgement by the International Court of Justice, the Canberra Commission report, and the public calls by numerous retired military and political leaders to abolish nuclear weapons, the goal of a nuclear weapon free world seems more distant now than it did a decade ago when, at the Reykjavik Summit in 1986, Presidents Gorbachev and Reagan discussed the elimination of nuclear weapons. At the moment, the five nuclear weapon powers, especially the US and Russia, are unwilling to even consider disarmament. The US in particular seems to be investing in a modernized, lean-and-mean, nuclear armed future.

In this paper we explore a route by which the States possessing nuclear weapons can be brought lawfully to the negotiating table by those that don't.

Nuclear Disarmament Efforts at the UN General Assembly

The very first resolution passed by the United Nations General Assembly (UNGA) in 1946 called for nuclear disarmament. It is a testament to the failure of the hopes represented by the UN that there have been hundreds of resolutions calling for the same goal since then, all to no avail. By and large, the nuclear-weapon States (NWS) have treated UNGA resolutions as little more than pious sentiment on the part of the larger international community.

The extent to which the NWS, especially the US, are prepared to go to frustrate the wishes of the international community is evident in the way the United States, almost in complete isolation, opposed a special session of all UN member States, which the vast majority of countries, including the European Union, wanted to be convened in 1999 to discuss a disarmament and security agenda for the 21st century. Such sessions have been convened in 1978, 1982 and 1988.

Faced with such intransigence on the part of the powerful it is not surprising that, as with ordinary citizens in society who are denied justice, the non-nuclear States have turned to law. They have increasingly started to look at the issue of nuclear weapons in the context of international law, and to be more precise about exactly what the community of nations means by nuclear disarmament. In 1994, following the lead of the World Health Organization, the UNGA posed the question, "Is the threat or use of nuclear weapons in any circumstances permitted under international law?", to the International Court of Justice (or World Court). Responding to this, the Court held that "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." Further, the Court went on to state, unanimously, that "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."

Based on this ruling, on 6 November 1996, Malaysia introduced an important resolution, calling for compliance with the World Court opinion. This was adopted on 10 December 1996 with the support of 115 States; there were 22 votes against and 32 abstentions. Significantly, the nuclear-weapon States, other than China, were opposed. Law, it seems, was not meant for them. In a separate vote, a paragraph underlining the World Court's statement on the obligation to negotiate nuclear disarmament was supported by 139 States. In 1997 and 1998, follow-up resolutions to this were again introduced by Malaysia and were adopted with 116 and 123 votes in favour respectively.

Although the starting point for these resolutions is the unanimous opinion of the World Court judges that there exists an obligation for States to "pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament," their major thrust is a call for negotiations leading to "an early conclusion of a nuclear weapon convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination." What is significant is that these resolutions put the demand for a Nuclear Weapons Convention (NWC) - a treaty banning nuclear weapons similar to those already banning chemical and biological weapons - into the international arena for the first time.

The chief obstacle to disarmament through the UN system is the fact that while the UNGA has clear proposals for what to negotiate, and where, the UNGA is unable to organise collective action to pursue the goals of the international community if it faces resistance from the major powers.

Impasse at the CD

It is widely believed that the most appropriate forum to handle issues of disarmament is the Conference on Disarmament (CD). The CD has achieved some success with the Chemical Weapons Convention (CWC) and the Biological Weapons Convention (BWC). It has even made progress with measures to prevent horizontal proliferation, such as the partial test ban treaty and the Comprehensive Test Ban Treaty (CTBT). However, on the question of controlling the arsenals of the NWS, the CD has failed to find any way of making progress.

There has been some hope for talks on the Fissban (or Fissile Material Cutoff), largely because the NWS place a high priority on trying to limit the size of the possible arsenals of the (as yet) non-deployed nuclear-weapon States (India, Pakistan, and Israel). Fully aware of the effects of such a cutoff on its nuclear ambitions, India, for a while, blocked progress on the fissban claiming that the treaty should be firmly linked to a time-bound program for nuclear disarmament. However, as part of its efforts to ease international pressure in the aftermath of its May 1998 nuclear tests, India relaxed its objections and has started participating in the negotiations at Geneva. However, as negotiations develop, hardliners in India may force renewed objections, as with the CTBT, because of the relatively small size of India's fissile material stocks compared to those held by the NWS. The main dispute in the Fissban talks will be over the question of existing stockpiles of fissile material possessed by the nuclear-weapon States. These disputes have prevented actual negotiations on a Fissban from starting despite a negotiating mandate.

A Non-STARTer?

In response to calls for a multilateral treaty on nuclear disarmament, the NWS, especially the US and Russia, have stressed bilateral negotiations aimed at limiting and reducing strategic armaments - the START treaties.

It is important to be clear what has and has not been achieved by the START process. The numbers usually quoted as the levels of warheads left after implementation of these START agreements are misleading; these numbers only refer to active operational weapons. In all, the US stockpile with the Department of Defense contains three categories of warheads: active operational warheads, along with spares kept at the bases where nuclear weapons are deployed; augmentation or "hedge" warheads not necessarily associated with active nuclear delivery systems; and reliability replacements kept in storage. Beyond these categories, the Energy Department has custody of retired warheads and the "strategic reserve." Russia also keeps several thousand warheads in reserve.

If all these categories are included, it has been estimated that the US and Russia still have over 30,000 weapons. In all, the five nuclear-weapon States hold, between them, over 36,000 weapons.

The START process is, moreover, not designed to lead to nuclear disarmament. This follows from the nature of the reductions - the START process only counts the numbers of delivery vehicles and not the fundamental core of the nuclear weapons - the pits made of fissile material.

To make matters worse, the START process is now stalled. The Russian Duma is refusing to ratify START II. Since the US refuses to move forward unilaterally on START III, it seems highly unlikely that START will go much further in leading to lower numbers of nuclear weapons, let alone their complete elimination, at any time in the near future. The recent US decisions to expand NATO and to deploy anti-ballistic missile systems as soon as it is feasible are only likely to strengthen Russian resolve to maintain its nuclear arsenal.

In the case of the US, there are other indicators that the US intends to hold on to its nuclear weapons for the indefinite future: the Stockpile Stewardship and modernization programs, the plans to resume tritium production, and in particular, the recent Presidential Guidelines for retargeting nuclear weapons which affirms that the US will continue to rely on nuclear arms as a cornerstone of its national security for the "indefinite future". Likewise, partly in response to NATO expansion, Russia is reportedly considering increasing its reliance on nuclear weapons.

Since the START process is strictly bilateral, the non-nuclear-weapon States (NNWS) have little control over either the nature or pace of the reductions. As Miguel Marin-Bosch is said to have observed: the non-nuclear-weapon States had been forced to play in the arena of the cold war and now must learn to play in Yankee stadium.

The NPT - Disarmament in the Indefinite Future?

The lack of leverage that the NNWS have over the NWS is no secret. But for over two decades there was some kind of pressure that the NWS had to be sensitive to. It came from the NPT. The Treaty came with a built-in time bomb: after twenty-five years the Treaty had to be reviewed and decision made as to whether to extend it or not. It was for this reason that the START process was offered by NWS, and the US in particular, as evidence that they are meeting their commitment under Article VI of the NPT to work towards nuclear disarmament.

When the time came, the options for extension at the 1995 NPT Review and Extension Conference (NPTREC) were, to put it simply, two-fold. Either an extension, which allowed for more Review and Extension conferences in future, at each of which it would have to be decided whether the NPT would survive or not, perhaps based on progress made towards disarmament. Or an unconditional and indefinite extension, with a review process that had nothing hinging on the outcome of such a review. Realizing what would result from an indefinite extension, at the 1995 extension conference the NNWS seemed to have preferred some kind of a conditional rolling extension. This was not to be. The nuclear-weapons States, led by the US, forced through an indefinite extension.

The present impasse and bleak future for disarmament have led to calls for a "peasants' revolt" - a mass withdrawal by NNWS from the NPT "unless the NWS agree in some forum to start genuine negotiations designed to ultimately rid the world of nuclear weapons." There is, however, no need, yet, for civil disobedience in the world of nuclear weapons; the law is still firmly on the side of the NNWS. As the World Court pointed out, it is the NWS who have to fulfill their Article VI obligations. The NNWS can still call the NWS to court to demand their lawful rights to a nuclear weapon free world.

A Way Out?

At the first PrepCom meeting for the 2000 NPT Review Conference, as part of the NGO presentations to the delegates, one of the authors (ZM) pointed out that the signatories of the NPT could use Article VIII of the NPT to force negotiations towards nuclear disarmament. This article concerns the process for amending the treaty. It stipulates that any party to the Treaty can submit an amendment to the Treaty. Then, if one third of the Parties to the Treaty (about 60 States) indicate their support, the Depository Governments for the treaty must convene a conference to consider the amendment.

Such an amendment can be written expressly as a fulfillment of the commitment to disarm (Article VI) and to transform the NPT itself into a Nuclear Weapons Convention. The precise form of the amendment is not important as long as it is acceptable to at least one-third of NPT parties. A simple amendment could, for example, be based on Article I of the Biological Weapons Convention, and would just add a new article to the NPT saying :

"Recognising their obligations under Article VI, each State party to the Treaty undertakes never in any circumstances to develop, produce, stockpile, or otherwise acquire or retain: i) Nuclear Weapons or fissile materials, whatever their origin or method of production, that can be used for producing nuclear weapons.
ii) Equipment or means of delivery designed to use such nuclear weapons or materials for hostile purposes or in armed conflict.
iii) The verification procedures for realizing these are contained in the protocol to the Treaty."

The Conference that would be called to discuss such an amendment would become, in fact, a negotiating forum with a mandate to abolish nuclear weapons. Every signatory to the NPT would have to attend the conference as an obligation under the terms of the NPT.

Calling such a conference to amend the NPT offers a way for the NNWS to exert leverage on the nuclear disarmament process. The enormous investment of political capital that the NWS have made in the NPT in an effort to preserve their nuclear weapons hegemony can be used against them. With the whole world watching, the NWS would have to decide just how much of a cornerstone the NPT is to maintaining the current order.

Taking the First Step

The initial impetus and support needed for the proposed amendment process is unlikely to emerge spontaneously. Creating the conditions would require a major campaign by the international peace movement and States committed to the abolition of nuclear weapons. There are signs that the forces that could be part of such a campaign are stirring. For example, there is the New Agenda Coalition, comprising Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa, and Sweden, as well as the Middle Powers Initiative, created by a number of peace movement groups, including International Physicians for the Prevention of Nuclear War, International Peace Bureau, Nuclear Age Peace Foundation, Lawyers Committee on Nuclear Policy, State of the World Forum, which seeks to "urge the leaders of several key middle-power States to press the nuclear-weapon States to negotiate the elimination of nuclear weapons." The NPT amendment process outlined here could serve as a mechanism for these initiatives to help further the process of disarmament that they are committed to.

For instance, the New Agenda Coalition States could propose a resolution at the UN General assembly calling on all States party to the NPT to "consult among themselves as to the most appropriate method to take advantage of Article VIII of the NPT for the conversion of the NPT into a Nuclear Weapons Convention". This could be followed by one that calls on signatories to the NPT to "take practical steps leading to the convening of a conference at the earliest possible date to consider amendment of the NPT that would convert it into a nuclear weapons convention."

Conclusion

The argument outlined here offers a way out from the dynamic that has emerged only too clearly since the end of the cold war. Changing this dynamic will require changing the rules of the game of disarmament. The overwhelming majority of the international community can, if it chooses, exercise its right to dub those who insist on maintaining nuclear weapons at all costs, as being outside the pale.

The authors are Research Fellows, Princeton University, USA.