Roundtable Discussion on the 2000 NPT Review Conference
4 February 2000, United Nations, New York
John Burroughs
It is an honor to be here with you to discuss the upcoming NPT Review Conference. Since the Lawyers’ Committee on Nuclear Policy was a key participant in the World Court Project that supported the initiative to obtain an advisory opinion on nuclear weapons from the International Court of Justice, it is natural for me to start with the opinion.
On the first day of the hearings, October 30, 1995, Gareth Evans, Foreign Minister of Australia, argued to the Court that the norm of non-possession of nuclear weapons under the NPT "must now be regarded as reflective of customary international law". [1] He stated that "if humanity and the dictates of the public conscience demand the prohibition of such weapons for some states, it must demand the same prohibition for all States. And following the end of the Cold War, there can no longer be, if there ever was, any practical imperative for treating nuclear-weapon States and non-nuclear-weapon States differently.” [2]
The Court essentially accepted that argument, unanimously concluding 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". Although not stated explicitly, the Court’s reasoning made it quite clear that this obligation applies to all states, including those outside the NPT.
The question before us, then, is how to make the norm of non-possession of nuclear weapons universal? Especially in view of the tests in South Asia since the Review and Extension Conference in 1995, it must be underlined that this question applies urgently with respect to states possessing nuclear arsenals both inside and outside the NPT. I will return to this question later.
One of the tasks of the Review Conference is to look back at the last five years. As we all know, the record is quite dim. I must say that for many NGOs closely monitoring nuclear establishments, this has not been a surprise. In 1994, the Pentagon completed its Nuclear Posture Review, which made unmistakably clear that the US remains committed to a large arsenal and to doctrines of massive retaliation and first use. By 1995, it was also well established that the US intended, through the Stockpile Stewardship program, to maintain nuclear superiority indefinitely, with or without underground testing. The recent defeat of the CTBT in the Senate reflected in large part the doubts of Republican senators that Stockpile Stewardship is adequate to achieve that objective, but the objective itself was not questioned by any party to the debate, including the Clinton Administration.
It was in recognition of these realities that in 1995 about 200 groups came together to form the Abolition 2000 Global Network to Eliminate Nuclear Weapons. The Network today comprises over 1400 groups worldwide. Its program remains the same, including:
commence multilateral negotiations leading towards the early conclusion of a nuclear weapons convention;
de-alert, de-mate, and disable nuclear forces globally;
cease the design and development of nuclear weapons;
commit to non-use of nuclear weapons and reject deterrence;
move away from reliance on nuclear power providing the infrastructure and materials for weapons programs, including through the establishment of an International Sustainable Energy Agency.
A recent statement of the Network to the Millennium Forum is attached to the text of my remarks.
One thing abolitionist NGOs have become more clear about in the last five years, stimulated in part by the insights of General Lee Butler, former commander of US strategic forces, is that nuclear disarmament requires an unequivocal rejection of the theology of nuclear deterrence and of the claim that international peace and security and global stability can and should be based on nuclear deterrence. Deterrence instead must be squarely recognized as illegal, immoral, and irresponsible. Despite its ambiguities, the ICJ opinion at bottom strongly supports the delegitimization of deterrence. And this view is becoming more and more widespread. As Arundhati Roy percipiently observed, that is why India’s adoption of the soulless, deadening rhetoric of deterrence has sounded so hollow and anachronistic.
It must also be stated, however, that the news has yet to reach Washington and other nuclear weapon capitals. The US could not even have a truthful, searching discussion of its atomic bombings of cities in Japan, and members of Congress continue to assert triumphantly that the nuclear threat won the Cold War. I do not believe that historical research will bear out this assertion, but even if it was true, it is hardly a matter for jubilation. Nonetheless, that is the political climate in Washington.
Against this background of both turmoil and complacency, governments may wish to seriously consider the strategy of adopting a forward looking document setting out the disarmament agenda for the next five years by use of the two-thirds voting rule, if consensus on an acceptable document cannot be reached. [3]
Felicity Hill has asked me to review institutional options available under the NPT for promoting nuclear disarmament. The diplomats here are far more knowledgeable than I about those options, but for purposes of the discussion today it may be helpful if I briefly review what’s on the table.
Subsidiary bodies: The Chair’s revised paper from the 1999 PrepCom includes the possibility of establishing a subsidiary body at the Review Conference to provide a "structured opportunity to deliberate on the practical steps for systematic and progressive efforts to eliminate nuclear weapons". [4] Subsidiary bodies are also under consideration for other topics such as universality [5] and compliance. The idea, as I understand it, is to allow for more in-depth discussion than is possible in the Main Committee format.
There are also proposals for intersessional bodies. For example, the Marshall Islands proposed that such a body could assist in the achievement of a nuclear weapons convention. [6] Intersessional bodies would not be hampered by the rules on consensus even as to procedural matters in place in the Conference on Disarmament, and could include non-CD states.
From an NGO perspective, we support subsidiary bodies, within the NPT and in Geneva, that would promote exploration and negotiation regarding the requirements of the nuclear disarmament process as a whole.
Other institutional mechanisms: The Non-Aligned Movement in its Durban Summit document proposed the creation of an open-ended intersessional standing committee on implementation of NPT obligations. [7] There have been other proposals for a permanent governing council of the NPT. Obviously such an approach would greatly increase the capability of the NPT parties to monitor and promote both non-proliferation and disarmament, instead of ceding authority to the Security Council and individual governments with respect to non-proliferation, and leaving disarmament issues to annual NPT review proceedings, the CD, and the GA. While NGOs have not really focussed on this possibility, I suspect there would be widespread support for strengthening the regime in this fashion.
Regarding universality, Malaysia proposed at the 1999 PrepCom that high level consultations be instituted on an annual basis between representatives of the NPT regime and states outside the NPT. [8]
In this connection, Ambassador Marin-Bosch observed last fall in a Department of Disarmament Affairs event here in New York, it really is not an adequate response to events in South Asia simply to say "join the NPT as a non-nuclear weapon state". More creativity is needed. I commend to your attention the report of a United Nations Institute on Disarmament Research conference, which noted the view of participants regarding:
The need to resolve the status of India and Pakistan to provide a context in which they could be addressed as de facto nuclear-weapon possessors, but without acceptance or rewards as such for their behaviour. Bearing in mind that the Non-Proliferation Treaty definition of nuclear-weapon states was not intended to legitimize the possession of nuclear weapons, but rather, to identify differential obligations, it was suggested that India and Pakistan could be encouraged to undertake some of the obligations of the nuclear-weapon states (e.g. no transfer of nuclear material and technology, and joining nuclear arms control measures) and also some of the obligations of non nuclear-weapon states (e.g. no receipt of nuclear material), in an attempt to incorporate them into the regime without recognizing them as equivalent to the P-5 in status. [9]
Finally, there is also the possibility under article VIII of the NPT of amending the treaty. [10] An amendment could in some manner require the fulfillment of the Article VI disarmament obligation, and could additionally address such matters as no first use obligations pending abolition and the establishment of an International Sustainable Energy Agency. An amendment cannot be adopted absent the consent of all members of the Board of Governors of the IAEA including the nuclear weapon states. But, an amendment conference, which could be called by a third of NPT states, would create an additional forum, and could be a recurring process. While there is nothing resembling a consensus among NGOs about the workability of this approach, it is fair to say that many NGOs think it warrants further exploration.
I hope this overview has been useful, and I look forward to the discussion.
[1] John Burroughs, The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice (Münster: Lit Verlag, 1997; Piscataway: Transaction, 1998) 119.
[2] Id. at 119-120.
[3] Rule 28, Draft Rules of Procedure, Annex VI to Final Report of the Preparatory Committee for the 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2000/1, 21 May 1999. For discussion of the history and potential of the two-thirds voting rule, see William Epstein, Nuclear Disarmament Commentary, No. 3 (June/July 1999), "Nuclear Disarmament Faces A Most Critical Year," pp. 3-4, and No. 5 (November 1999), "Nuclear Deadlock Endangers NPT Review," p. 5, published by the Lawyers’ Committee on Nuclear Policy, and available at LCNP.org.
[4] Chairman’s Revised Working Paper of 20 May 1999, NPT/CONF.2000/PC.III/58:
23(d) Establishment of a subsidiary body to Main Committee I of Review Conferences, and the provision of specific time at all future meetings of Preparatory Committees, for a structured opportunity to deliberate on the practical steps for systematic and progressive efforts to eliminate nuclear weapons.
[5] Proposal Submitted by Iran (Islamic Republic of), NPT/CONF.2000/PC.III/55, 20 May 1999:
9. Add a new Para in the section on the Middle East Resolution as following:
The States Parties recommend that the 2000 Review Conference establish a subsidiary body to its Main Committee II to consider and recommend proposals on the implementation of the resolution on the Middle East adopted by the 1995 Review and Extension Conference.
[6] GENERAL CONSIDERATIONS TO BE TAKEN INTO ACCOUNT BY PARTIES IN THE REVIEW PROCESS, Submitted by the Marshall Islands, NPT/CONF.2000/PC.I/11, 11 April 1997, paragraph 13.
[7] Proposal Submitted by Iran (Islamic Republic of), supra:
11. New section on: Follow up mechanism:
The State Parties agree that to ensure the effective implementation of the Treaty, and of decisions and resolutions and documents adopted at the Review Conference, an open-ended standing committee, which would work intersessionally to follow up recommendations concerning the implementation of the Treaty on the Non-Proliferation of Nuclear Weapons, should be established by the Treaty's 2000 Review Conference. (Taken from paragraph 123 of the Durban Summit Document)
[8] NPT/CONF.2000/PC.III/26, 18 May 1999, Working paper submitted by Malaysia, Proposal for the Establishment of a High Level Consultation Mechanism
[9] The Implications of South Asia's Nuclear Tests for the Non-proliferation and Disarmament Regimes, A Report of the UNIDIR Conference, Palais des Nations, Geneva, 7-8 September 1998. Available online:
http://www.unog.ch/UNIDIR/Esasia.htm at 6.3.
[10] See Zia Mian and M. V. Ramana, "Diplomatic Judo: Using the NPT to Make the Nuclear Weapons States Negotiate the Abolition of Nuclear Weapons," Disarmament Diplomacy, No. 36, April 1999, available at www.gn.apc.org/acronym.htm