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World Court Project:  An Exchange Regarding The Meaning and Policy Context of the Article VI Nuclear
Disarmament Obligation

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Introductory note from John Burroughs: What follows are two opinion pieces that appeared in the Los Alamos Monitor concerning whether Article VI of the NPT imposes a necessary link between nuclear disarmament and general and complete disarmament. I argued that there is no such necessary link; a Los Alamos analyst argued that there is. The arguments I made were esssentially those that were submitted to the International Court of Justice by several non-nuclear countries advised by the World Court Project. As it turned out, the ICJ did delink nuclear disarmament and general and complete disarmament.
While the ICJ opinion does mention general and complete disarmament in referring to Article VI and U.N. resolutions, in its unanimously adopted formulation in the dispositif, paragraph105(2)(F) the ICJ simply stated: "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leadings to nuclear disarmament in all its aspects under strict and effective international control." Certainly, "nuclear disarmament in all its aspects" could refer to steps such as destruction of dual capable missiles that overlap with conventional disarmament in addition to steps such as destruction of warheads, control of weapons usable material, closure of weapons labs, etc., that relate to nuclear disarmament only. But, the omission of the reference to a "treaty on general and complete disarmament" (i.e., comprehensive conventional disarmament) undoubtedly was deliberate and represents the ICJ's acceptance of the position that the obligation to eliminate nuclear arsenals is not contingent upon achievement of such a treaty.
I think it may be important to be aware of these arguments because the nuclear states may try to evade the clear mandate of the ICJ's interpretation of Article VI.



Los Alamos Monitor
Thursday, May 23, 1996
Opinions, Page 4

"Conventional disarmament isn't linked to NPT"

By John Burroughs

Western States Legal Foundation

In his guest column ("Non-proliferation and nuclear arms reduction," May 14, 1996, page 4) Don Westervelt of the Los Alamos National Laboratory argues that the obligation to pursue nuclear disarmament under Article VI of the Nuclear Non-Proliferation Treaty(NPT) is necessarily linked to a wider NPT obligation to pursue general and complete disarmament. In other words, nuclear weapons must not be eliminated until there is comprehensive conventional disarmament.

This view is wrong both as a reading of the NPT and as a matter of policy. As Westervelt notes, at the April 1995 NPT Review and Extension Conference and the November 1995 World Court hearings on the (il)legality of nuclear weapons, high U.S. officials did not insist on the supposed link. The U.S. attitude is now new. 

In 1986, the chief U.S. representative at the NPT negotiations, Adrian Fisher, stated that Article VI as submitted by the United States constitutes "a solemn affirmation of the responsibility of nuclear-weapon states to strive for effective measures regarding cessation of the nuclear arms race and disarmament." Fisher then stated: "Moreover, the article does not make the negotiation of these measures conditional upon their inclusion with the framework of a treaty on general and complete disarmament.

As another member of the U.S. negotiating team, George Bunn, along with a Soviet negotiator, Roland Timerbaev, have explained, the practice of NPT parties subsequent to conclusion of the treaty confirms Fisher's statement. For example, the final document of the 1978 United Nations Special Session on Disarmament laid down the world's disarmament priorities in this order--nuclear weapons, then other weapons of mass destruction, then conventional weapons. Its program of action then discussed separately the steps to be taken with respect to those priorities. Subsequently, the 1985 NPT Review Conference approved the Special Session recommendations.

Another telling example is the April 6, 1995 declaration of France, Russia, the United Kingdom and the United States shortly before the NPT Extension Conference. The declaration reaffirmed the Article VI commitment to pursue negotiations in good faith on nuclear disarmament, "which remains our ultimate goal." No linkage was made to conventional disarmament.

The text of Article VI bears out the U.S. view. It contains two distinct obligations, separated by a comma, one to negotiate nuclear disarmament, and the second to negotiate a treaty on general and complete disarmament. Article VI reads: "Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."

Article VI is part of the operative body of the treaty that sets out binding obligations. It reflects the basic bargain underlying the NPT: non-nuclear states promised not to acquire nuclear weapons, and in return nuclear states promised to eliminate their nuclear arsenals by a process of negotiation.

Westervelt relies on language from the treaty's preamble, which sets out the context and aspirations against which the treaty's obligation are to be understood. That language reads: "Desiring to further the easing of international tension and the strengthening of trust between States in order to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a treaty on general and complete disarmament under strict and effective international control." 

This language clearly points to a possible linkage between elimination of nuclear weapons and conventional disarmament. But in light of the non-binding nature of the preamble, the structure and negotiating history of Article VI, and the interpretation of Article VI by NPT parties subsequent to the treaty's entry into force, the preamble does not impose a necessary linkage.

A possible connection between nuclear and conventional disarmament is readily identifiable. As the International Network of Scientists and engineers Against Proliferation and other have explained, one element of a nuclear weapon free world may be control or elimination of systems, notable missiles, that can be used for the rapid delivery of warheads, whether nuclear or conventional. William Epstein, who was the U.N. Secretary General's representative to the NPT negotiations, told me it was a recognition of this connection that underlay the preambular language Westervelt emphasizes.

But Westervelt has in mind another connection, namely that the nuclear threat deters conventional war. In this view, the nuclear threat remains desirable until and unless the risk of devastating conventional war is minimized. This is a formula for making nuclear disarmament contingent upon the achievement of heaven on earth. It essentially means "nuclear weapons(in the hands of a select few countries) forever."

This formula must be decisively rejected. It erodes the line which the conscience of humanity has drawn between conventional weapons and weapons of mass destruction. It treats in derisory fashion the obligation to achieve the reduction and elimination of nuclear arsenals. As appealing as it may sound to some peace advocates, or as convenient an excuse for avoiding nuclear disarmament as it may be for others, there exists no necessary link between nuclear disarmament and comprehensive conventional disarmament. Nor is any such link desirable, for it would totally negate prospects for elimination of nuclear weapons within a reasonable time frame. Australia and many other non-nuclear states rightly argued to the World Court last fall that reasonably prompt elimination of nuclear arsenals is the legal obligation of nuclear states, not only under the NPT but the whole body of international law setting limits on warfare.

Westervelt accuses non-nuclear states "and the abolitionist Non-Governmental Organizations (NGOs) that parrot their pronouncements" of ignoring the obligation to pursue conventional disarmament and the role of nuclear weapons in deterring conventional war. I was a representative of one of the NGOs at the 1995 NPT Review and Extension Conference that formed an abolition caucus, immediately supported by 200 groups worldwide. My small group, like Greenpeace, International Physicians for the Prevention of Nuclear War, and other major global organizations, has long and consistently supported nuclear disarmament, including during the Cold War, regardless of the views of states. But we were certainly delighted to support outspoken non-nuclear states like Mexico, long a champion of disarmament, or South Africa, which recently dismantled its nuclear arsenal, or even Indonesia and other states whose human rights record is atrocious but whose position on nuclear issues is sound.

We are well aware of the contention that nuclear weapons promote stability. Whether this proposition is true is highly debatable.

For example, as Westervelt's own argument suggests, today's technology makes even conventional war among advanced industrial powers self-deterring. But even if the proposition were true, we reject the risk of nuclear war, and insist that other ways can and must be found to ensure global security. Further, we support conventional disarmament for its own sake, and also because, as suggested above with respect to missiles, in certain ways it may be intertwined with the reduction and elimination of nuclear weapons. What we cannot accept is the idea that nuclear weapons will be abolished when humans become angels--i.e., never.

Westervelt mentions START II, which will reduce U.S. and Russian arsenals each to 3,000 to 3,500 deployed long-range warheads, plus several thousand warheads deployed in short-range systems or in reserve. But there is little difference between a world in which there are tens of thousands of nuclear weapons and one in which there are thousands or even hundreds. The new millennium is almost upon us. The time to begin the process of achieving a nuclear weapon free world--regardless of whether it is perfect in other respects is now.

John Burroughs is an attorney for Western States Legal Foundation in Oakland, Calif., a public-interest group that monitors the Lawrence Livermore and Los Alamos national laboratories. He served as legal coordinator for the World Court Project at the November 1995 hearings before the International Court of Justice in the Hague regarding the legal statues of nuclear weapons.

Los Alamos Monitor
Tuesday, May 14, 1996
Opinions, Page 4 

Non-proliferation and nuclear arms reduction
By Don Westervelt

*Editor's note:Following are remarks made by Don Westervelt of Los Alamos National Laboratory to a group of visiting Russian journalists in March. Westervelt's remarks are reprinted here because of requests that he present them to a larger audience.

I have been asked by the Los Alamos Committee on Arms Control and International Security to try briefly to relate the issue of nuclear non-proliferation to the broader subject of nuclear arms reduction as reflected, for example, in the START II Treaty now under study in the Russian Duma and already approved for ratification by the United States Senate. I am happy to do this.

Let me begin with a small personal anecdote. In October 1990, during some highly technical discussions with our then-Soviet counterparts in Moscow, my colleagues and I were invited by the leader of the Soviet team, Professor Viktor Mikhailov(now Russia's Minister of Atomic Energy), to travel with him to the until-then secret city known as Arzemas 16, which was the Soviet Los Alamos. We would be the first foreign visitors to this closed city, and most of us accepted on the authority of our State Department leader, who full realized the precedent-setting nature of this visit. The rest is history: our visit was followed by exchange visits by the Laboratory Directors and others, leading to an expanding program of cooperation that I believe will be discussed in depth tomorrow.

Upon our arrival at Arzemas 16 we received a number of briefings, including a historical description of the Soviet weapons program by Academician Yuli Khariton, who had played a key role in the establishment of the Soviet weapons laboratory under Stalin and in the development of the Soviet weapons. At 85, Khariton was still Chief Scientist at the Arzemas laboratory.

Following the briefings, our group was treated to a banquet in a tent set up in a lovely pasture surrounded by forest. Traces of snow made the picture complete. As we gathered around a large bonfire after the meal, Khariton in a low voice made a comment to his colleagues, including Dr.Belugin, the Arzemas Director, in Russian. Prof. Mikhailov told me that what Khariton had said was that he "had waited all of his life for this moment." Mikhailov then went on to say to me, "You are looking at the most peace-loving men in the world," referring to the distinguished Soviet weapon scientists gathered around the fire. I replied that I had no doubt of that, and reminded him of the statement of Los Alamos Director Norris Bradbury had made during testimony in the early 1960s, that we did not work on bombs because we liked to kill people, but only to give the political process time to work until it finds other than military solutions. Most of us who have worked in this field shared Bradbury's motives as, I am sure, have most of our Soviet counterparts. Both groups are motivated by patriotism and an intense desire that the catastrophe of world war never be repeated. Thus far, it has not. It is significant in this regard that fatalities due to war during the half-century following WWII, while distressing, have occurred at a rate one-tenth that during the first half of this century, and in fact are more comparable to the rate of the first half of the 19th century.

Without question, however, nuclear weapons are on trial today, both in the court of public opinion and, in a legal but also highly political sense, in the International Court of Justice in the Hague. Another arena where polarization regarding the legitimacy of nuclear weapons and nuclear deterrence played a crucial role was the 1995 Non-Proliferation Review and Extension Conference at the United Nations, which I observed in a Non-Governmental role.

The goal of most of the nuclear-weapon states at the Conference was indefinite (permanent) and unconditional extension of the Non-Proliferation Treaty (NPT), preferably by consensus or at least by a politically persuasive majority. Instead, consensus was achieved only on the statement that a majority of Parties favored indefinite extension, and this was achieved only by linkage of the extension decision to other documents providing for almost annual review of progress toward, inter alia, nuclear disarmament by the official five Nuclear Weapon States (NWS), and for a set of Principles and Objectives for Non-Proliferation and (nuclear) Disarmament. The latter are regarded as politically, if not legally, binding on the Parties, and are considered to be conditions by many Parties.

The second goal of the Review and Extension Conference was agreement on a Final Declaration stating the agreed results of a review of the operation of the NPT. As in two earlier review Conferences (1980,1990) the Final Declaration proved impossible to negotiate. The impasse was between the nuclear weapons states and those Parties, including some from the Western Group, that insisted on a "timebound" framework and a target date for the total elimination of nuclear weapons, as well as a fissile-materials ban, a Comprehensive Test Ban Treaty by 1995-6, commitment to legally-binding security assurances, and to specific nuclear-arms-reduction initiatives to follow START II and include China, France, and the U.K. (but not India, Pakistan, or Israel). This failure portends badly for the nearly-annual reviews (both of past and future issues) now provided for, so long as the sides continue to talk past each other and display hostility as they did in New York.

There is not time here to discuss even in outline the complex kabuki drama that unfolded at the U.N. in April-May 1995, leading to the results described. I highly recommend for this purpose the remarkable September 1995 ACRONYM 7 report by Rebecca Johnson, who was everywhere at the U.N. and apparently saw or heard everything. One point that is duly noted in her report, I think deserves greater emphasis. That is the linkage, clearly established in the language of the NPT, between nuclear disarmament and General and Complete Disarmament (GCD). While the United States, France and the United Kingdom reasserted this linkage in the debate in Main Committee 1, whose efforts ultimately collapsed in disarray, it tends to be studiously avoided or even specifically dismissed in, for example, speeches of current high U.S. government officials. GCD, in fact, seems to have achieved the status of a quaint idea whose time has passed. But it is the immense destructive capability of conventional weapons, as well as their staggering cost, both of which now vastly exceed the levels of WWII, that underlie the argument that at least some level of nuclear capability remains essential. Until the issue of GCD is rejoined, I believe the impasse over nuclear disarmament can only be reinforced as other nations follow the lead of India, Pakistan, and Israel. GCD is referred to in two parts of the NPT, the Preamble and Article VI. The preambular language is unambiguous; it refers to "the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament under strict and effective international control (emphasis added)." Article VI reads:"Each of the Parties to the Treaty undertakes 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." This latter obligation falls on every party, NWS and NNWS (non-nuclear weapon states) alike. 

GCD was an important subject in the Geneva forum in the early 1960s, but it has long since fallen from the agenda. But the NPT language-"pursuant to..." is as clear as it is, in fact, compelling. "Pursuant to means" in accordance with, "not" in pursuit of." George Bunn and Roland Timerbaev, key figures during the drafting of the NPT, have extended their imagination in recent years to justify an assertion that a commitment to pursue nuclear disarmament under the terms of the NPT can be viewed entirely independently of the GCD commitment, but their arguments simply do not hold water. I asked Bunn in New York whether the drafters of the NPT considered alternative (to "pursuant to") language; he replied that no other language had ever been proposed.

Presumably, all of the present NPT Parties are aware of this language and the implications of ignoring it. Thus the widespread insistence on pursuit of nuclear disarmament, on which the record of the NWS is now fairly impressive, in the absence of any serious effort toward general (nonnuclear) disarmament (for which, as noted, all states parties are obligated, not just the NWS), is cynical if not disingenuous.

While many NNWS, and the abolitionist Non-Governmental Organizations that parrot their pronouncements, thus play dumb on the real issue underlying dependence of some states and their allies on a nuclear weapons capability, the NWS continue to proceed responsibly toward elimination of admittedly outrageous levels achieved during the Cold War, and replacement of those deployments with significantly smaller forces specifically designed to maintain strategic stability. The landmark INF Treaty and START I were major steps along this path. While START II will satisfy neither the hawks on each side nor the abolitionists, it clearly is a responsible next step. Beyond START II, I believe the future depends on political progress, improved enforcement capabilities (800,000-plus Tutsis slaughtered by machete are just as dead as the small fraction of that number that died at Hiroshima), and a decision by the NNWS to quit blinking their own responsibilities under the NPT.

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