Misnomers

by Cesare Romano

A few days ago I had a very lively discussion with a senior disarmament specialist, someone involved for quite a long time with efforts to stop nuclear proliferation. Of course, the North Korean nuclear test was the spark. It was the classical discussion where one sees the glass half-full and the other half-empty.

He claimed that the North Korean blast was to be put in the context of the wider non-proliferation regime. He urged me to look at the big picture. He said that without the Non-Proliferation Treaty (NPT), which was concluded in 1968, and entered into force in 1970, by now we would count nuclear-armed countries by the dozens and not on the tip of two hands. He reminded me that at the beginning of the 1960s President Kennedy predicted that by the end of the decade there would be up to twenty-five states with nuclear weapons. If that bleak prediction did not become true is because the NPT made it so much harder for wannabe nuclear powers to succeed.

I am baffled by this kind of reasoning, which is not only of my interlocutor, but also the prevailing mood in Vienna, at the headquarters of the International Atomic Energy Agency, and in many capitals around the world. It was obvioulsy also the opinion of the Norwegian Nobel Committee who in 2005 awarded the IAEA Director M. El Baradei and the Agency the Nobel Prize in Peace “for their efforts to prevent nuclear energy from being used for military purposes and to ensure that nuclear energy for peaceful purposes is used in the safest possible way.” Clearly the prize awarders decided to focus on the efforts and not the results, as you do with those students who, for some reasons you cannot grasp, you like, but perform below standards.

It seems to me that everyone who had a serious enough reason to get a nuke, did get one. Since the entry into force of the NPT, India, Pakistan, and North Korea have gone overtly nuclear. Israel did not test but it is widely believed to have nuclear capacity. Look out for Iran to come up next. South Africa developed a limited nuclear capability and to date it is the only one who gave up its arsenal (Kazakhstan and Ukraine might be added to the list as they inherited part of the USSR arsenal but also gave it up).

Admittedly, the NPT made it harder to get it, by raising the stakes and costs, but it did not make it nearly impossible. Claiming that the NPT has been a success because Argentina, Brazil, Japan, Canada, Sweden, Germany or Australia could but chose not to go nuclear is absurd. These countries had little or no reason to get nukes in the first place, as they had other alternatives to secure their defense (i.e., someone else’s nukes). The day there are 80 countries with nuclear weapons, we will hear the NPT is a smashing success because without it everyone, including every self-respecting terrorist organization, would have them.

All the NPT has achieved is to slow down proliferation not to prevent it. However, claiming that this was the goal of the convention from the onset is guileful historical revisionism. The NPT aimed to freeze the situation at five nuclear armed countries (the permanent members of the Security Council). The treaty is called the “Non-Proliferation Treaty”, not the “Slower Proliferation Treaty”. Countries without nukes committed not to get them, and in return countries with nukes committed to “pursue negotiations in good faith on effective measures relating to the 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” (Art. 6). Who violated the NPT first? Who is really to be blamed for its unraveling?

Admitting that the NPT failed, that the big bargain did not work, is the first step towards fixing it, and it is imperative we fix it and we do it now. I cannot resign myself to live in a world that is gradually becoming indifferent to the inherent threat posed by the possession of nuclear weapons, because it won’t take long before we become indifferent to their use.

http://opiniojuris.org/2006/10/22/misnomers/

5 Responses

  1. So how would you propose to fix it?

    The NPT doesn’t exist in a vacuum.

  2. Richard Falk and David Krieger of the Nuclear Age Peace Foundation have some suggestions. Go here: http://www.wagingpeace.org/index.htm Then click on ‘Issues: Nuclear Weapons,’ From there, click ‘Browse Our Articles Archive,’ then click on ‘Nuclear Weapons,’ and see the first article under the heading: ‘Nuclear Non-Proliferation Treaty.’

    There’s lots of other informative stuff at their website, which I’ve found invaluable in thinking through the various issues and options available.

  3. Cesare,

    What about the role of the Security Council in all of this? As you will remember, there were those who were pessimistic that China would ever let a resolution under Chapter VII get to the floor. Of course, the tests changed all of that. Despite the editorials, its too early to assess the effects of the weeks-old sanctions. All we can be sure about is a long-term social science experiment on the effects of further isolation on the most isolationist country on the planet.

    In any case, I think the commentator that “the NPT does not exist in a vacuum” could be right in a couple of senses. First, breach of the NPT cannot be discussed as a simple treaty in VCLT terms, because the point is to progressively socialize, and not to bind states conditional on the binding of other states (the point of bi-lateral arms control treaties). Secondly, any discussion of the evolution of the treaty must also allow for the Security Council’s duties, largely animated by its own Charter mandate, but also Article X of the NPT itself. IAEA practice reflects the regard for the Security Council to act as the final arbiter in maintaining international peace and security. Participants in the most recent NPT Review Conferences — the sole forum for collective monitoring of general compliance of NPT obligations — have been friendly to the expansion of the Security Council’s role, particularly regarding increased scrutiny for withdrawal, affirming that:

    If the Security Council is invoking its Charter powers to promote non-proliferation, it must properly harmonize its efforts with these treaty regimes and other treaty-based and customary obligations under international law. In addition to defining the Article 25 obligations of Members of the United Nations to accept and carry out the decisions of the Security Council” the ICJ in the Lockerbie Case (1992) stated that “in accordance with Article 103 of the Charter, the [Charter] obligations of the Parties… prevail over their obligations under any other international agreement.” Thus the UN Charter is a kind of “super-treaty” that overrides any ordinary hierarchy of norms suggested by Article 38 of the ICJ Statute.

    In terms of non-proliferation, there has not yet been an occasion for the Security Council to pass a resolution to override the provisions of a treaty under its peace and security mandate Council must similarly respect the object and purpose of multilateral treaty regimes. Instead, Security Council Resolutions have thus far supported and complemented existing treaty-based nonproliferation regimes in multiple ways. Duties of the various non-proliferation treaties have a potential role or duty to support. For example, the Security Council, when appropriate can enforce the international law principle (articulated in the Vienna Convention on the Law of Treaties) that signatories to a treaty may not undermine its “object and purpose.” The broader case can be made that the enforcement provisions of these security-related treaties, among others, should be read in light of the Security Council’s legitimate mandate under the UN Charter. In Resolution 1540 “The Security Council reaffirms its support for existing multilateral treaties and calls on states to renew their commitment to multilateral cooperation in the framework of the IAEA and other bodies.”

    P-5 are the same ast the N-6 Object and purpose analys

    The Security Council seeks to maintain its own legitimacy by maintaining consensus statements. The principal challenges to the legitimacy of the Security Council— namely critiques of opportunism and non-democratic character—reappear in the context of the NPT in more specific forms:

    • Critique of Nuclear Oligopoly of the P-5. Currently the permanent five members are the only nations permitted to possess nuclear weapons under the Nuclear Non-Proliferation Treaty. Though this nuclear status is not the result of their Security Council membership, the P-5’s military supremacy is at least ratified by the NPT.

    • Critique of Discriminatory Treatment under the NPT. If the Security Council overtakes and steers the NPT process, selective enforcement is probable. This introduces an element of discrimination in contravention of Article IV of the treaty, which guarantees that states may “develop research, production and use of nuclear energy for peaceful purposes without discrimination.”

    • Critique of the Non-Proliferation Agenda as an Evasion of Disarmament Responsibilities. Though the Non-Proliferation Treaty’s also commits nuclear weapons states to move towards nuclear disarmament, this commitment has faded from active agenda of the NPT, and there is little incentive for the P-5 to pursue this agenda. Whether by default or design, an agenda promoting non-proliferation without disarmament simply freezes in place the military-technological gap that allowed the great powers that emerged after WWII to steer the Security Council for the past five decades.

    ciao,

    Vik Kanwar

    NYU/ Loyola New Orleans

    However, the breach of obligations (non-compliance and withdrawal) is only one factor the Security Council must consider in a totality of circumstances pointing to whether or not there is a threat to security. The Council must take care to respect the non-proliferation framework and balance between not infringing on “inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes” prohibiting “the manufacture or acquisition of nuclear weapons or nuclear explosive devices by non-nuclear weapons states.” In some cases, this might border on finding subjective determinations of intent, but these must be supported by more facts provided by the IAEA and other available intelligence.

  4. I accidentally sent the above post while searching for the including the quote and link to the NPT conference, specifically the EU group.

    Here is the URL:

    NPT Review Conference

    thanks,

    Vik

  5. My, if he thought that the NPT was a success, I’d be tempted to ask him for an example of a widely ratified treaty that failed, as I consider the NPT almost a textbook case of a treaty no one had any real intent on honoring.

    Who violated the NPT first? I suppose one could find a technical answer, but it seems almost meaningless seeing that it was almost universally signed in bad faith. The nuclear powers had no intent to disarm, the non-nuclear powers were often in the process of gearing up for making the same bombs they were foreswearing.

    I suppose the Kyoto Climate treaty might be a strong contender for the title of the treaty most honored in breach, but I still think the NPT has the crown.

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