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Disarmament, Non-Proliferation, and the Rule of Law


Jayantha Dhanapala
Under-Secretary-General for Disarmament Affairs
United Nations


Commemorating the 20th Anniversary of the Lawyers' Committee on Nuclear Policy
 New York, New York

27 November 2001


I am pleased and honoured to be with you this evening as the Lawyers' Committee on Nuclear Policy commences the third decade of tenacious efforts on behalf of a more peaceful and just world order. In an otherwise difficult year for international peace and security, this is a happy occasion indeed.

Disarmament has had its ups and downs, to say the least. If Dr. Johnson were with us tonight, he might quip that its persistence marks a triumph of hope over experience. Progress in this field is often slow and incremental. Sometimes it is ambiguous or subject to conflicting interpretations. Sometimes it is hard to assign credit to individuals or specific policies when progress is made, or to assign blame when things go wrong.

These complications are not mere abstractions -- they have profound effects in the real world of practical action. For example, these problems only make it that much more difficult for non-governmental groups (NGOs) in disarmament to attract funds from sponsors who increasingly want specific concrete results from their investments. In our fast-paced world of sound-bites and instant gratification, we become all too impatient with ventures whose pay-offs are not evident or capable of being measured for years into the future. Increasingly, leaders in such a climate -- whether in or out of government -- are asking themselves, "why should I take a bold initiative when it will be my successor or successor's successor who will reap the gain?"

As President of the historic 1995 NPT Review and Extension Conference, I must confess that I had very mixed feelings about the long-term significance of that event. While I of course welcomed the outcome -- three decisions and a resolution that the Conference adopted without a vote -- I did not view it as any occasion for smug complacency. I saw its main significance in the realm of accountability. As I stressed in my closing statement to the conference, "non-proliferation and disarmament can be pursued only jointly, not at each other's expense" -- hence the value of a strengthened review process. I said that the decision on permanent extension signified "our collective dedication to the permanence of an international legal barrier against nuclear proliferation so that we can forge ahead in our tasks towards a nuclear-weapon-free world." The permanent extension, therefore, represented neither "a permanence of unbalanced obligations" nor "the permanence of nuclear apartheid between nuclear haves and have-nots." I concluded my statement by paying a sincere tribute to the work of NGOs on behalf of that treaty -- just as today, I pay a sincere tribute to the Lawyers' Committee for its twenty years of efforts on behalf of nuclear disarmament and non-proliferation.

Last year, nuclear disarmament received new support in numerous events associated with the celebration of the new Millennium -- this includes not only the Millennium Declaration, but also important statements and declarations from a world summit of religious leaders, from the heads of the world's parliaments, and from the Millennium Forum -- a gathering of 1,350 representatives of over 1,000 non-governmental organizations and other civil society organizations from more than 100 countries.

Last year also marked the successful conclusion of the Sixth NPT Review Conference, which substantially improved the accountability of the treaty's review process by reaching agreement on thirteen practical steps for the achievement of global nuclear disarmament. One of these has already been achieved, namely, an "unequivocal undertaking" by the nuclear-weapon states to accomplish the total elimination of their nuclear arsenals. The Final Document of that conference also reaffirmed that "the total elimination of nuclear weapons is the only absolute guarantee against the use or threat of use of nuclear weapons." The states parties concluded, in short, that disarmament offered a greater guarantee against the next nuclear nightmare than any other alternative -- which we must assume includes both deterrence and various technical, defensive measures.

Despite these accomplishments, however, the "rule of law" with respect to nuclear disarmament - as opposed to non-proliferation -- is still very much in its infancy, for at least eight reasons.

First, many of the important treaties -- such as START II, the CTBT, and the Pelindaba Treaty -- have still not entered into force.

Second, the treaties that are in force fall short of universal membership. This includes most notably the Nuclear Non-Proliferation Treaty, but it also applies to treaties dealing with other weapons of mass destruction, particularly the Chemical Weapons Convention and the Biological Weapons Convention.

Third, some NPT parties have repeatedly alleged -- though typically without probative evidence - that other parties are not complying with their treaty obligations. Also, the states making these allegations have neither brought their claims to the UN Security Council nor have they taken their allegations to other multilateral fora to resolve such concerns.

Fourth, and this relates closely to the previous point, the NPT lacks its own institutional infrastructure - including, for example, an executive council or secretariat -- to provide a permanent or even ad hoc mechanism for resolving disputes that may arise under the treaty. These institutional questions are very important. Last year, in his remarks at the opening of the 2000 NPT Review Conference, the Secretary-General warned of the dangers of "rust" in the multilateral machinery of disarmament. Funding constraints continue to limit the potential contributions from this machinery, as does the political stalemate in the Conference on Disarmament over contrasting views about the appropriate linkages between nuclear disarmament, a fissile materials treaty, and measures to prevent an arms race in outer space.

A fifth reason for the weakness of the rule of law in disarmament concerns a certain lack of congruency between - on the one hand -- the solemn commitments by the nuclear-weapon states to global nuclear disarmament and - on the other hand - the tendency of such states to continue to refer to such weapons as "vital" or "essential" to their security and, in some cases, the security of their friends and allies as well. Some of these states maintain doctrines that reserve the rights to be the first to use nuclear weapons, to use such weapons against states that use other weapons of mass destruction, and even to use them against non-nuclear-weapon states. The congruency problem also extends into the gap between the global nuclear disarmament commitment and domestic laws, regulations, and policies. What is missing is significant evidence of a systematic effort by the nuclear-weapon states to prepare the way for a global nuclear weapons convention - there is little evidence, for example, that major political and financial investments are being made in devising a rigorous system for verifying or enforcing such a convention.

Sixth, the nuclear-weapon states continue to make qualitative improvements in their weapons - some by means of sub-critical tests - even during the current, informal moratorium on nuclear tests. Following the nuclear tests in South Asia in 1998, it seems likely that this phenomenon of ongoing qualitative improvements - frequently called, "vertical proliferation" - is now well underway even outside the NPT.

Seventh, there remains today - over three decades after the NPT entered into force - very little transparency over existing nuclear stockpiles. Though new details often do appear at the treaty's five-year review conferences, the world still does not have a precise quantitative "base-line" for measuring the incremental process of disarmament. Lacking transparency, it is quite difficult indeed to verify compliance with disarmament obligations and to ensure real accountability. A related problem concerns the treaty's failure to define its primary object, the term "nuclear explosive device." Lacking such an agreed definition, countries seem to have different ways of calibrating the pace of global nuclear disarmament, and this gives rise to several difficult questions. Is a weapon stored in separate parts considered a weapon? Is a weapon held on reserve status counted as a weapon? And prior to the CTBT's entry into force, is every explosive device that releases nuclear energy necessarily a weapon?

An eighth indicator of the under-development of the rule of law nuclear disarmament concerns the issue of irreversibility. Here the rule of law -- expressed in binding obligations, precise definitions, and an independent means of control and accounting -- could help enormously in ensuring that weapons reduced during the process of disarmament will not be re-used in the manufacture of new weapons. Thanks to existing safeguards agreements and complementary controls at the national and regional levels, the rule of law has undoubtedly strengthened non-proliferation efforts, by reinforcing the irreversibility of relevant commitments.

The negotiation of a nuclear weapons convention would be a logical way to advance the rule of law in disarmament, and thereby to firm up this norm of irreversibility. Yet despite the best efforts of the Lawyers' Committee over many years, there is still no such treaty. With respect to the Committee's persistent and ultimately successful efforts to obtain an Advisory Opinion from the International Court of Justice (ICJ) in 1996 on the legality of threat or use of use of nuclear weapons, the international community remains divided over the optimal legal approach to achieve nuclear disarmament. During the vote in the First Committee on this year's ICJ resolution, for example, forty-seven states voted either against or to abstain on a text that called for "multilateral negotiations in 2002 leading to an early conclusion of a nuclear weapons convention."

None of these weaknesses in the global nuclear regime constitutes grounds to abandon efforts on behalf of nuclear disarmament. Quite the contrary, they are a call to action. I wish I could -- in my brief remarks tonight -- unveil the solution to all these problems, but there are unfortunately no easy answers. While the way to cut the Gordian knot of disarmament has yet to be discovered, it is possible to identify some critical steps that the world must take to achieve this goal.

The key challenges ahead are twofold: to strengthen the political will to achieve disarmament goals, and to strengthen the rule of law to consolidate incremental gains. This approach has worked reasonably well in the field of non-proliferation -- although here too progress is possible -- and it is now time to intensify this two-track approach in the field of disarmament. I believe that a political consensus must come first, for such a consensus provides the only solid foundation upon which the rule of law can exist.

On other occasions, I have approached this political question largely by stressing the need to pursue what I call "sustainable disarmament." For disarmament to succeed, it needs a broad-based constituency - one that is at once dynamic and institutionalized so that it can have some continuity over time. Future prospects for nuclear disarmament will wax and wane with the level of political support it enjoys at the top leadership levels of government as well as the grass roots -- who together must view disarmament as serving the national interest and the broader interest of international peace and security.

The network of support from organized groups for disarmament must also be wide and deep - it should include both business and labour, groups that support the rights of women and children, groups that seek a cleaner environment, religious groups, and groups from the professional sector (law and medicine have their own unique contributions to make). This network should include groups and individuals everywhere who sincerely believe they have a stake in the success of disarmament.

Forging support for such a broad-based coalition must necessarily involve both the media and the educational system, for the message of disarmament must reach a wide audience indeed, one that is diverse both geographically and that is capable of finding new adherents among grandparents and grandchildren alike. At the request of the General Assembly, the Secretary-General -- with the assistance of a group of governmental experts -- is currently undertaking a study of this problem of disarmament education that will be completed next year. As slow and frustrating as the cause of nuclear disarmament can be, nothing would advance this goal more than the gradual consolidation and strengthening of a solid political foundation for the development of a new rule of law in this challenging field.

I therefore encourage the Lawyers' Committee to keep up its efforts to achieve global nuclear disarmament, to strengthen the foundation of political support for this goal, and never to give up until the goal is finally achieved. With your legal backgrounds, you are exceptionally well placed to champion the cause of extending the rule of law into the field of disarmament.

Let us redouble our efforts to ensure that the occasion of the thirtieth anniversary of the Lawyers' Committee will be a time not to pursue a global ban on nuclear weapons -- but to implement such a ban. You have my very best wishes for all the important work you have ahead.


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