DEBATING DISARMAMENT:

Abstract

The author offers a close analysis of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the treaty's only article dealing with disarmament, focusing upon both its text and negotiating history, and assesses its applicability as a standard for judging treaty compliance. The author critiques comments on Article VI made by the International Court of Justice in a 1996 case as legally ill founded and conceptually incoherent as a compliance yardstick. The only interpretation of Article VI consistent with its text and history, the author argues, is that it—as it says—merely requires all states to pursue negotiations in good faith; specific disarmament steps are not required. Claims that the 2000 NPT Review Conference imposed new legal obligations for disarmament or altered the meaning of Article VI are found to be mistaken; although the conference could theoretically have adopted interpretive criteria for understanding the meaning of Article VI, it did not in fact do so. Applying his Article VI compliance standard to the case of U.S. compliance, and comparing modern circumstances with those during the Cold War, the author also describes what he says is an excellent U.S. record of Article VI compliance.

Keywords:

• Nuclear weapons
• Nonproliferation regime
• Article VI
• International Court of Justice
• Disarmament
• Treaty on the NOn-Proliferation of Nuclear Weapons

Notes

1. See United Nations, text of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), <www.un.org/events/npt2005/npttreaty.html>.

2. ICJ, Advisory Opinion of July 8, 1996, on “Legality of the Threat or Use of Nuclear Weapons” (hereafter “ICJ Weapons Case”), <www.icj-cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case=95&k=e1&p3=5>.

3. ICJ, Advisory Opinion of July 8, 1996, on “Legality of the Threat or Use of Nuclear Weapons” (hereafter “ICJ Weapons Case”), <www.icj-cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case=95&k=e1&p3=5>, at Judgment F.

4. ICJ Weapons Case, Dissenting Opinion of Vice-President Schwebel, p. 37, <www.icj-cij.org/docket/files/95/7515.pdf>.

5. Request for Advisory Opinion, ICJ, May 14, 1993, pp. 2, 6.

6. ICJ, Order of July 8, 1996.

7. See Request for an Advisory Opinion, ICJ, December 15, 1994, pp. 2, 6, <www.icj-cij.org/docket/files/95/7646.pdf>.

8. Statute of the International Court of Justice, at Art. 65(1), <www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0>.

9. Statute of the International Court of Justice, at Art. 65(1), <www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0>, at Art. 65(2).

10. ICJ Weapons Case, at para. 99.

11. ICJ Weapons Case, at para. 100.

12. NPT Preamble.

13. This interpretation is consistent with the U.S. position throughout the NPT negotiating process, so it would be unsurprising for it to have been reflected in the NPT treaty draft, jointly authored by the United States and Soviet Union, which first included preambular language on disarmament and provided the basic negotiating text for the final rounds of NPT talks in 1967–1968.

14. U.S. Special Representative for Nuclear Nonproliferation Christopher A. Ford, “A Work Plan for the 2010 Review Conference,” remarks to the 2007 NPT Preparatory Committee meeting (April 30, 2007), <www.state.gov/t/isn/rls/rm/84044.htm>.

15. See International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons (Washington, DC: U.S. Arms Control and Disarmament Agency, 1969), pp. ix, xiv, 3–6.

16. See International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons (Washington, DC: U.S. Arms Control and Disarmament Agency, 1969), p. iii. The reader will note Foster's failure to describe this obligation as being one of “negotiating and concluding” such negotiations.

17. See International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons (Washington, DC: U.S. Arms Control and Disarmament Agency, 1969), p. iii. The reader will note Foster's failure to describe this obligation as being one of “negotiating and concluding” such negotiations, p. 7.

18. See International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons (Washington, DC: U.S. Arms Control and Disarmament Agency, 1969), p. iii. The reader will note Foster's failure to describe this obligation as being one of “negotiating and concluding” such negotiations, pp. 8, 15.

19. The United States, for instance, declared early in the NPT negotiating process that such elements should not be “inextricably linked.” The negotiating parties, explained ACDA Director Foster, should accomplish as much as they could if they could not reach agreement on everything initially. Ibid., p. 15.

20. The United States, for instance, declared early in the NPT negotiating process that such elements should not be “inextricably linked.” The negotiating parties, explained ACDA Director Foster, should accomplish as much as they could if they could not reach agreement on everything initially, p. 16.

21. The United States, for instance, declared early in the NPT negotiating process that such elements should not be “inextricably linked.” The negotiating parties, explained ACDA Director Foster, should accomplish as much as they could if they could not reach agreement on everything initially, pp. 16, 23–24. The United States also spoke up at the First Committee against such linkage.

22. The United States, for instance, declared early in the NPT negotiating process that such elements should not be “inextricably linked.” The negotiating parties, explained ACDA Director Foster, should accomplish as much as they could if they could not reach agreement on everything initially, pp. 16, 23–24. The United States also spoke up at the First Committee against such linkage., p. x.

23. The United States, for instance, declared early in the NPT negotiating process that such elements should not be “inextricably linked.” The negotiating parties, explained ACDA Director Foster, should accomplish as much as they could if they could not reach agreement on everything initially, pp. 17–18. The United States and the Soviet Union repeatedly opposed linking disarmament and nonproliferation. Nevertheless, the United States said in 1965 that it supported measures to halt the arms race and repeated that at the contemplated review conference other parties would have the opportunity to evaluate how happy (or unhappy) they were with progress. Ibid., pp. 45–46, 75. After the submission of a U.S.-Soviet draft treaty in August 1967, Foster repeated this argument. That year, United States repeated that it wished to make disarmament progress, and had made disarmament proposals, but that it would be a mistake to put specific measures into a treaty because it would jeopardize the chances of agreement. Ibid., pp. 79–80.

24. Some, including Sweden, Brazil, Ethiopia, Mexico, and the UAR, also spoke in favor of including a nuclear test ban in the nonproliferation treaty. Ibid., p. 44.

25. Some, including Sweden, Brazil, Ethiopia, Mexico, and the UAR, also spoke in favor of including a nuclear test ban in the nonproliferation treaty, p. 20.

26. Some, including Sweden, Brazil, Ethiopia, Mexico, and the UAR, also spoke in favor of including a nuclear test ban in the nonproliferation treaty; see also p. xi. The Non-Aligned Eight repeated this call in 1966. Ibid., p. xiii.

27. This resolution was adopted by a 93–0 vote, with five abstainers. Ibid., pp. 25, xi.

28. India preferred a tight, more specific linkage, including a ban on nuclear weapons production, but Trivedi made clear that the ENDC Eight were not urging that the treaty require this. Ibid., pp. 43–44.

29. The UAR suggested an article to oblige nuclear weapon states to halt the nuclear arms race, reduce and eliminate nuclear weapons stocks and nuclear delivery vehicles, and to that end continue and expedite negotiations to reach agreement on suitable concrete measures in these regards. Burma seconded this call and proposed explicitly to link it to the treaty's contemplated review process. Ibid., pp. 44–45.

30. The UAR suggested an article to oblige nuclear weapon states to halt the nuclear arms race, reduce and eliminate nuclear weapons stocks and nuclear delivery vehicles, and to that end continue and expedite negotiations to reach agreement on suitable concrete measures in these regards. Burma seconded this call and proposed explicitly to link it to the treaty's contemplated review process, pp. 75–85. The UAR promptly promised to introduce an article along these lines.

31. The UAR suggested an article to oblige nuclear weapon states to halt the nuclear arms race, reduce and eliminate nuclear weapons stocks and nuclear delivery vehicles, and to that end continue and expedite negotiations to reach agreement on suitable concrete measures in these regards. Burma seconded this call and proposed explicitly to link it to the treaty's contemplated review process, p. 86.

32. India, for instance, urged the addition of a separate article “affirming the solemn resolve of the nuclear weapon Powers to undertake meaningful measures of disarmament, particularly of nuclear disarmament.” Ibid., p. 86. On Mexico's proposal: ibid., p. 87.

33. After Mexico's proposal, the Soviet Union spoke up again against linking nonproliferation and disarmament, though it noted that a nonproliferation treaty would help create favorable conditions for disarmament. Ibid., pp. 88, 96, 106.

34. After Mexico's proposal, the Soviet Union spoke up again against linking nonproliferation and disarmament, though it noted that a nonproliferation treaty would help create favorable conditions for disarmament, pp. 99–100.

35. Attempts to insert more specificity about disarmament, including efforts by West Germany and Spain, were unsuccessful. Ibid., pp. 107–108. Canada agreed with the superpowers that linking disarmament agreements would indefinitely postpone agreeing a nonproliferation treaty. Ibid., p. 122.

36. Attempts to insert more specificity about disarmament, including efforts by West Germany and Spain, were unsuccessful. Ibid., pp. 107–108. Canada agreed with the superpowers that linking disarmament agreements would indefinitely postpone agreeing a nonproliferation treaty, pp. 106–107. When the Unites States and Soviet Union resubmitted their draft, “at an early date” was added to Article VI, along with clarification that “disarmament” meant “nuclear disarmament.” Preambular text was added on a comprehensive test ban, and a provision was added on Review Conferences. Ibid., p. 113.

37. Hearing Before the Senate Committee on Armed Services, “Military Implications of the Treaty on the Non-Proliferation of Nuclear Weapons,” February 27–28, 1969, at p. 121 (answer to question submitted by South Carolina Republican Senator Strom Thurmond).

38. General E.L.M. Burns, Canada's ENDC representative, who drafted the NPT, noted in 1968 that failing to agree on nonproliferation controls would hurt the chances of future disarmament by the weapon states. International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons, p. 122. The treaty recognizes as nuclear weapon states those countries that had exploded a nuclear device prior to January 1, 1967.

39. NPT, at Art. VIII(3). Pursuant to Art. X, a conference was convened in 1995 to decide whether to continue the NPT in force indefinitely; the NPT was accordingly made indefinite in duration.

40. One observer has suggested (even while admitting that NPT negotiating history shows that Article VI had been written so as to avoid “reference to any specific measures”) that “this view of Article VI has been decisively rejected” by the ICJ in the 1996 opinion discussed above. See John Burroughs, “Nuclear Non-Proliferation Treaty Compliance,” paper presented to the Institute for Energy and Environmental Research Conference on “Nuclear Dangers and the State of Security Treaties” (April 9, 2002), <www.ieer.org/latest/npt02jb.html>. But the ICJ does not make international law, and does not have any binding power on any state except insofar as that state has agreed so to be bound. The ICJ cannot change Article VI in order to require things the treaty drafters clearly understood that it did not.

41. I use the terms “pursue” and “conclude” to mean, in effect, “seek to engage in” and “successfully end one's engagement in,” respectively.

42. For a discussion of Articles II and III and IAEA safeguards compliance standards from the U.S. perspective, see Bureau of Verification and Compliance, “Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments,” Part VI(E), August 2005, <www.state.gov/t/vci/rls/rpt/51977.htm>.

43. 2000 NPT Review Conference, Final Document, May 20, 2000, <www.fas.org/nuke/control/npt/docs/finaldoc.htm>.

44. Harald Müller, “Farewell to Arms: What's Blocking Nuclear Disarmament?” IAEA Bulletin 46 (2004), <www.iaea.org/Publications/Magazines/Bulletin/Bull462/farewell.html>.

45. See 2000 Review Conference, Final Document, “Article VI and Eighth to Twelfth Preambular Paragraphs,” Vol. 1, New York, 2000, pp. 13–15, <daccessdds.un.org/doc/UNDOC/GEN/N00/453/64/PDF/N0045364.pdf?OpenElement>.

46. See Vienna Convention on the Law of Treaties (1969), at Art. 31(3) (providing, inter alia, that in interpreting treaties, “[t]here shall be taken into account, together with the context … any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”), <untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf>.

47. As this author has noted elsewhere: “The nature of the [NPT] review process itself makes clear that Parties’ expressions of policy agreement at meetings are by their nature neither intended nor expected necessarily to stand for all time. After all, were it possible for a group of nations to articulate views that would forever thereafter perfectly fit the challenges that would face the NPT in our complex world, there would have been no need for a review process in the first place.” Christopher Ford, “The NPT Review Process and the Future of the Nuclear Nonproliferation Regime,” Remarks to NPT Japan Seminar, Vienna, Austria, February 6, 2007, <www.state.gov/t/isn/rls/rm/80156.htm>.

48. John Burroughs, “Non-Proliferation Treaty Applies to Both North Korea and the United States,” <www.lcnp.org/pubs/BASpring03/article3.htm>; Burroughs, “Nuclear Non-Proliferation Treaty Compliance.”

49. See, for example, Robert S. Norris, William M. Arkin, and William Burr, “Where They Were,” Bulletin of the Atomic Scientists 55 (November/December 1999), p. 26, note 1; Hans M. Kristensen, “Nuclear Weapons in Europe: A Review of Post-Cold War Policy, Force Levels, and War Planning,” February 2005, <www.nrdc.org/nuclear/euro/euro.pdf#search=%22foia%20u.s.%20nuclear%20war%20planning%22>, p. 24.

50. In my discussions of Cold War U.S. nuclear planning, I am greatly indebted to David Alan Rosenberg, whose assistance I had the good fortune to have in my recent treatment of certain aspects of U.S. strategic planning during the late Cold War. See Christopher A. Ford, The Admirals’ Advantage (Annapolis, Maryland: U.S. Naval Institute Press, 2005), pp. 77–108; see also Christopher A. Ford and David A. Rosenberg, “The Naval Intelligence Underpinnings of Reagan's Maritime Strategy,” Journal of Strategic Studies 28 (April 2005), pp. 379–409.

51. Richard Rhodes, The Making of the Atomic Bomb (New York: Simon & Schuster, 1988), p. 765; David Alan Rosenberg, “The Origins of Overkill: Nuclear Weapons and American Strategy, 1945–1960,” International Security 7 (Spring 1983), pp. 3, 12–14.

52. Rhodes, Making of the Atomic Bomb, pp. 768–69.

53. Over time, planning came to include an amazing degree of redundancy, including (according to a 1957 study) up to 17 overlaps of blast radii on a single location. Rosenberg, “Origins of Overkill,” pp. 15, 18, 22, 24–25, 50–51, 66.

54. Over time, planning came to include an amazing degree of redundancy, including (according to a 1957 study) up to 17 overlaps of blast radii on a single location. Rosenberg, “Origins of Overkill,”, pp. 23, 66; David Alan Rosenberg, “Nuclear War Planning,” in The Laws of War: Constraints on Warfare in the Western World, Michael Howard, et al., eds. (New Haven: Yale University Press, 1994), p. 206.

55. David Alan Rosenberg, “The History of World War Three 1945–1990: A Conceptual Framework,” in On Cultural Ground: Essays in International History in Honor of Akira Iriye, Robert David Johnson, ed. (Chicago: Imprint Publications, 1994).

56. Rosenberg, “Nuclear War Planning.”

57. Rosenberg, “Origins of Overkill,” p. 39.

58. Nor does Soviet war planning appear to have been any less grim. Rosenberg, “The History of World War Three.”

59. Rosenberg, “Nuclear War Planning,” p. 175.

60. Rosenberg, “Origins of Overkill,” p. 6.

61. Rosenberg, “The History of World War Three.”

62. Rosenberg, “Nuclear War Planning.”

63. Rosenberg, “Origins of Overkill,” p. 8.

64. See, for example, Rosenberg, “Nuclear War Planning,” p. 189; Ford, Admirals’ Advantage, pp. 93–96.

65. For example, see the Baruch Plan, presented to the UN Atomic Energy Commission, June 14, 1946, <www.atomicarchive.com/Docs/Deterrence/BaruchPlan.shtml>. See also, generally, Los Alamos National Laboratory (LANL), “Arms Control Treaties,” <www.lanl.gov/history/hbombon/treaties.shtml>. This general account of U.S. arms control history is based on the convenient summary provided in Arms Control Today (June 2002), <www.armscontrol.org/act/2002_06/factfilejune02.asp>, and “Arms Control Treaties,” LANL.

66. Office of the Press Secretary, White House, “Announcement of Withdrawal from the ABM Treaty,” December 13, 2001, <www.dod.mil/acq/acic/treaties/abm/ABMwithdrawal.htm>.

67. All former Soviet republics are party to the INF Treaty but most do not participate in treaty meetings or on-site inspections.

68. White House, “Presidential Initiative on Nuclear Arms,” September 2, 1991, <dosfan.lib.uic.edu/acda/factshee/wmd/nuclear/unilat/sandy.htm>.

69. See generally, Center for Arms Control and Nonproliferation, “Briefing Book on Tactical Nuclear Weapons,” <www.armscontrolcenter.org/archives/000169.html>.

70. The Senate voted against ratification, judging that the treaty was not sufficiently verifiable and that it could not be assured that the U.S. nuclear stockpile could be maintained reliably if testing were forever banned. See generally, e.g., News Hour with Jim Lehrer, “Rejection of the Treaty” (see especially comments of Senate Majority Leader Trent Lott, Republican of Mississippi) October 14, 1999, <www.pbs.org/newshour/bb/congress/july-dec99/ctbt_10-14a.html>.

71. See U.S. Government, texts of draft mandate for FMCT negotiations at the CD and draft Treaty on the Cessation of Production of Fissile Material for Use in Nuclear Weapons or for Other Explosive Devices (introduced May 18, 2006), < www.state.gov/t/isn/rls/other/66902.htm>; see also Stephen Rademaker, “Rising to the Challenge of Effective Multilateralism,” statement to the UN Conference on Disarmament, May 18, 2006, <geneva.usmission.gov/Press2006/0518RademakerCDstatement.html>.

72. For example, see, U.S. Government, “The Commitment of the United States of America to Article VI of the Treaty on the Nonproliferation of Nuclear Weapons,” 2005; U.S. Mission to the United Nations, “Article VI: The U.S. Record of Compliance” (undated); Departments of State, Defense, and Energy, “An Assessment of the Impact of Repeal of the Prohibition of Low-Yield Warhead Development on the Ability of the United States to Achieve its Nonproliferation Objectives,” March 2004, pp. 5–9; Stephen G. Rademaker, “U.S Compliance with Article VI of the Nonproliferation Treaty (NPT),” remarks to an Arms Control Association panel, February 23, 2005, <www.state.gov/t/ac/rls/rm/41786.htm>; Stephen G. Rademaker, “NPT Article VI,” address to the Third Session of the Preparatory Committee for the Third NPT Review Conference, May 23, 2004, <www.state.gov/t/ac/rls/rm/2004/32294.htm>; Ambassador Jackie Wolcott Sanders, “How to Strengthen the NPT,” e-Journal USA (March 2005), <usinfo.state.gov/journals/itps/0305/ijpe/sanders.htm>; Department of Energy (DOE) fact sheet (undated); Christopher A. Ford, State Department, “Disarmament, the United States, and the NPT,” March 17, 2007, <www.state.gov/t/isn/rls/other/81946.htm>. Unless otherwise noted, most of the information in this section comes from these documents.

73. National Nuclear Security Administration (NNSA), “Administration Plans Significant Reduction in Nuclear Weapons Stockpile,” press release, June 3, 2004.

74. Ford, State Department, “Disarmament, the United States, and the NPT.”

75. NNSA, “DOE to Remove 200 Metric Tons of Highly Enriched Uranium from U.S. Nuclear Weapons Stockpile,” press release, November 7, 2005; see also Ford, “Disarmament, the United States, and the NPT.”

76. NNSA, “NNSA Releases Report on Plans for Future of the Nuclear Weapons Complex,” press release, February 2, 2007.

77. Rosenberg, “Nuclear War Planning.”

78. Department of Defense (DOD), “1994 Nuclear Posture Review,” <www.fas.org/nuke/guide/usa/doctrine/dod/95_npr.htm>.

79. C. Paul Robinson, “Pursuing a New Nuclear Weapons Policy for the 21st Century,” Sandia National Laboratories White Paper, March 22, 2001, <www.sandia.gov/media/whitepaper/2001-04-Robinson.htm>.

80. DOD, “1994 NPR.”

81. George W. Bush, remarks at the National Defense University, May 1, 2001, <www.whitehouse.gov/news/releases/2001/05/20010501-10.html>.

82. DOD, “2001 Nuclear Posture Review” (excerpts), December 31, 2001, <www.globalsecurity.org/wmd/library/policy/dod/npr.htm>; see also, for example, Keith B. Payne, “The Nuclear Posture Review: Setting the Record Straight,” Washington Quarterly 28 (Summer 2005), pp. 140–142. The 2001 NPR also stressed the development of both active and passive defenses, including both ways of destroying ballistic missiles in flight.

83. Robinson, “Pursuing a New Nuclear Weapons Policy.”

84. Joint Declaration by the United States and the Russian Federation, May 24, 2002, <www.whitehouse.gov/news/releases/2002/05/20020524-2.html>.

85. Sean McCormack, State Department spokesman, “United States and Russia Pursue Strategic Security Dialogue,” press statement, September 15, 2006, <www.state.gov/r/pa/prs/ps/2006/72352.htm>.

86. See Christopher Ford, “Strengthening the Nonproliferation Regime,” remarks at Wiston House, Wilton Park, United Kingdom, December 21, 2006, <www.state.gov/t/isn/rls/rm/78454.htm>.

87. U.K. Foreign Secretary Margaret Beckett, “A World Free of Nuclear Weapons?” remarks at the 2007 Carnegie International Nonproliferation Conference, Washington, DC, June 25, 2007, (suggesting extension of framework into “multilateral” nuclear weapon state–context) <www.carnegieendowment.org/files/keynote.pdf>.

88. Some of the most modern U.S. Tomahawk cruise missiles, for instance, were expected to use a conventional earth-penetrating warhead that could make them useful against the reinforced concrete covers of ICBM silos, a type of target traditionally reserved for nuclear weapon attack. See Qiu Yong, “Preliminary Study on the Threat of Precision Strike Conventional Weapons to Nuclear Weapons,” report for the International Network of Engineers and Scientists Against Proliferation, <www.inesap.org/bulletin17/bul17art17.htm>.

89. DOD, “2001 NPR,” pp. 24–25.

90. See, for example, Elaine M. Grossman, “Air Force Proposes New Strike Missile,” InsideDefense.com, April 8, 2006, <www.military.com/features/0,15240,93616,00.html>.

91. DOD, “2001 NPR,” pp. 34–35.

92. See, for example, NNSA, “NNSA's Reliable Replacement Warhead (RRW) Program,” fact sheet, May 2006, <www.nnsa.doe.gov/docs/factsheets/2006/NA-06_FS03.pdf>.

93. Christopher Ford, “Achieving and Sustaining Nuclear Weapons Elimination,” State Department, March 17, 2007, <www.state.gov/t/isn/rls/other/81943.htm>; see also Ambassador Christina Rocca, “Creating the Conditions Necessary for Nuclear Disarmament,” February 6, 2007, statement to the Conference on Disarmament.

94. Ford, “Achieving and Sustaining Nuclear Weapons Elimination.”

95. Christopher Ford, “Facilitating Disarmament,” State Department, March 17, 2007, <www.state.gov/t/isn/rls/other/81949.htm>; Christopher Ford, “Procedure and Substance in the NPT Review Cycle: The Example of Nuclear Disarmament,” March 17, 2007, <www.state.gov/t/isn/rls/rm/81940.htm>.

96. Christopher Ford, “Facilitating Disarmament,” State Department, March 17, 2007, <www.state.gov/t/isn/rls/other/81949.htm>; Christopher Ford, “Procedure and Substance in the NPT Review Cycle: The Example of Nuclear Disarmament,” March 17, 2007, <www.state.gov/t/isn/rls/rm/81940.htm>.