By Bakampa Brian Baryaguma
1.
Introduction
Nuclear weapons are the most
powerful weaponry ever produced by man;[1] and the deadliest too.[2] With their discovery, ‘...
human destructive power reached a new, suicidal level, surpassing previous
limits to all but unimaginable degree.’[3] The
monstrous twin bombings of Japan’s Hiroshima and Nagasaki cities in 1945,[4] demonstrated the weapons’ disastrous
capability. Having killed more people than any other weapon, they made history.[5]
Nuclear weapons escalated conflicts and threatened global peace
and security.[6] Nuclear-weapon
states started bullying non-nuclear-weapon states, threatening them with
nuclear bombardment.[7] Other states pursued a balance of terror policy,[8] involving acquiring the
macabre weapons, to guarantee their security, economic stability and political
prestige.
The world was said to be: ‘... lurching from crisis to crisis,
where the only light at the end of the tunnel is a nuclear fireball;’[9] brought to a nuclear
tipping point;[10] facing
dangers of the most titanic proportions,[11] whereby
with ‘... further
transfers of nuclear weapons, accidental and catalytic
wars would become more likely, and nations would
drift into “a nightmare region in which man’s powers
of destruction are constantly increasing and his control
over these powers is constantly diminishing.”’[12] Effective
management of nuclear arms became necessary.
2.
Managing Nuclear Weapons: The Grand Bargain
The carnage of nuclear weapons necessitated a nuclear-free world.[13] Led by the United Nations
Secretary-General,[14] states embarked on
negotiations to achieve it,[15] resulting in a negotiated
settlement – the grand bargain – forming the basis of the 1968 Treaty on the Non-Proliferation of Nuclear
Weapons[16]
(hereinafter ‘the NPT’), to limit the spread of nuclear weapons,[17] through spread of
technological know-how, nuclear materials and specialized equipment. It’s the
cornerstone of the nuclear non-proliferation regime.[18]
A.
The
NPT and the Grand Bargain[19]
The NPT categorized member states, on which
basis obligations were imposed.
1.
State Categorization under the NPT
Two categories of states were envisaged:
(a)
Those
which had manufactured and exploded a nuclear weapon or device before 1
January, 1967 – termed nuclear-weapon states;[20] and
(b)
Those
which have not manufactured and exploded a nuclear weapon or device – termed non-nuclear-weapon states.
2.
Pillars of the Grand Bargain
The grand bargain rests on three interrelated and mutually reinforcing pillars: non-proliferation,
peaceful use of nuclear energy, and disarmament.[21] These were pledges made
by the states, which establish a balance of obligations undertaken by them, to ensure non-proliferation
and move toward a nuclear weapons-free world.[22] Thereunder:
(a)
Nuclear-weapon
states commit to –
(i)
Early
cessation of nuclear weapons production;[23]
(ii)
General
and complete disarmament;[24] and
(iii)
Denial
of nuclear weapons to non-nuclear-weapon states.[25]
(b)
Non-nuclear-weapon
states commit to –
(i)
Refraining
from manufacturing nuclear weapons;[26] and
(ii)
Never
to seek, receive or acquire them from nuclear-weapon states.[27]
B.
The
Current State of the Grand Bargain
Judging from its three pillars, the grand bargain is a big success,[28] although it faces
challenges, which portray it, ‘... as a set of nuclear bargains at war with one another.’[29]
1.
General and complete disarmament
The NPT is
critical to sustaining progress towards disarmament because, it’s the principal
legal barrier to the spread of nuclear weapons.[30] Pursuant to good faith negotiations on effective
measures relating to the cessation of the nuclear arms race and to general and
complete nuclear disarmament under strict and effective international control, the
grand bargain facilitates 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.[31] Eliminating threats and
reducing the importance of nuclear weapons in national politics and security
discourse are important.[32]
However, nuclear-weapon
states appear unwilling to eliminate their nuclear weapons. They are
modernizing and reaffirming their arsenals’ importance.[33] Russia and America still poses extremely large
stockpiles of nuclear weapons – about 95% of the world's nuclear warheads[34] – because of their persistent
stiff rivalry and strategic competition.[35]
Their continued
non-compliance, ‘... is a potentially serious blow to the long-term survival of
the treaty, the existing nonproliferation norm that the treaty has helped
nurture, and the hopes for a peaceful world.’[36] Moreover, if they don’t disarm, they won’t have
the moral authority to tell other nuclear-weapon states to disarm or prevent non-nuclear-weapon
states from arming themselves.[37]
2.
Non-proliferation
The grand bargain has prevented wider
dissemination of nuclear weapons by curtailing their acquisition by non-nuclear-weapon
states and restraining their further development by nuclear-weapon states.[38] The
possibility of accidental or catalytic nuclear
warfare has been reduced.[39]
However, non-compliance
with non-proliferation obligations remains a challenge.[40] Nuclear-weapon states aid
and abet non-nuclear-weapon states in development and further enrichment of
nuclear capability.[41]
3.
Peaceful use of nuclear energy
Since the testing of the first nuclear device,[42] ‘... the international
community has struggled with a basic dilemma: how to restrain the atom’s
destructive effects while harnessing its vast potential for peaceful uses.’[43] The grand bargain permits and facilitates the
application of safeguards on peaceful nuclear activities,[44] to ease international
tension and strengthen trust between states.[45] It prohibits harmful use
of nuclear energy, by preventing its diversion from peaceful uses to nuclear
weapons.[46]
But trust is problematic. Some states in the past manipulated it
to make nuclear weapons.[47]
4.
Membership and compliance measures
The NPT membership has grown tremendously. In 1970, it had 43
member states; by 2010, there were nearly 190 members; it’s the most widely
adhered to arms control agreement in history.[48]
Coupled with this impressive membership record is a high
compliance rate – South Africa gave up its nuclear weapons program and adhered
to the NPT as a non-nuclear-weapon state; former Soviet Union member states
transferred their nuclear weapons to Russia and adhered to the NPT as
non-nuclear-weapon states; and five nuclear-weapon-free zone treaties have been
concluded.[49]
3.
Conclusion
The grand bargain has contained nuclear weapons, by sufficiently
managing their proliferation and use.[50] It is a big success, in
spite of its peculiar challenges.[51] If states embrace social
engineering and conventional weaponry,[52] alongside political
changes,[53] as
legitimate sources of superiority, the ‘very tall mountain’[54] can be surmounted.
NOTES AND REFERENCES
[1] See, Henry Sokolski, ‘What Does the History of the Nuclear
Nonproliferation Treaty Tell Us About Its Future?’, in Henry Sokolski (ed) Reviewing the Nuclear Nonproliferation Treaty (2010) 27, at 43.
[2] George P Schultz et al.,
‘Toward a Nuclear-Free World’ (2008).
[3] William H. McNeill, The Pursuit of Power (1982), at 360.
[4] Zhores
Medvedev, ‘Stalin and the Atomic Bomb’, in Roy Medvedev & Zhores Medvedev, The Unknown Stalin: His Life, Death, and
Legacy (2003) 121, at 132, states that by order
of President Harry Truman, the American air
force, exploded the atomic bomb over Hiroshima on 6 August, 1945; the next day,
7 August, 1945, a second one was dropped over Nagasaki.
[5] Per Hakan Altinay, in
his introductory remarks to the week 7 lecture on Nuclear Arms, in the global civics lecture series of the Global
Civics Academy. According to Zhores Medvedev, supra note 4, the atomic bombs killed
between 200,000-300,000 people.
[6] Henry Sokolski, supra note 1, at 32-33, reports that on
17 October, 1958,
Ireland offered a draft resolution concerning the ‘Further Dissemination of
Nuclear Weapons’ before the First Committee of the General Assembly of the
United Nations, addressing the possibility that ‘an increase in the number of
states possessing nuclear weapons may occur, aggravating international
tensions’ and making disarmament ‘more difficult.’ The draft resolution
recommended that the General Assembly establishes an ad hoc committee to study
the dangers inherent in the further dissemination of nuclear weapons. The
resolution was however, withdrawn on 31 October, 1958, when it became
clear that many states were not yet ready to endorse the initiative.
But as stated
at page 48, reading the Treaty today, one finds that ‘... the original bargain
of the Irish resolutions of the late 1950s and early 1960s is present in the
final version of NPT. Indeed, Articles 1 and 2, which prohibit the direct or
indirect transfer and receipt of nuclear weapons, nuclear explosives, or
control over such devices, read very much like the original Irish resolutions
themselves. In Article 3, the treaty also calls on parties to accept and
negotiate a system of safeguards that would prevent “diversion of nuclear
energy from peaceful uses to nuclear weapons or other nuclear explosive
devices.” Finally, the treaty makes it clear in Article 4 that parties to the
NPT could exercise their right to develop peaceful nuclear energy only “in
conformity with Articles I and II.”’
[7] Professor Dingli
Shen, in his week 7 lecture on Nuclear
Arms, a part of the global civics lecture series of the Global Civics
Academy, states that the American government repeatedly threatened mainland
China with the use of nuclear weapons, which prompted the latter to acquire
them as well. The good professor submits that the American hegemony of nuclear
weapons made the world unsafe and unstable, such that other states had to
develop them in order to counter American aggression. Thus, for example, after
China acquired a nuclear weapon, the American government has never threatened
mainland China with the use of nuclear weapons. He further states that while
America still has a programme to use nuclear weapons against mainland China, it
(America) does not speak of it – and that is the difference.
These threats became
such a big issue of international concern that in 1995, each of the five nuclear-weapon
states – China, France, Russia, the United
Kingdom, and the United States of America – had to give statements, noted by United Nations Security Council Resolution
984 (1995), in which they give security assurances against the use of
nuclear weapons to non-nuclear-weapon state parties to the NPT. In 2009, the UN
Security Council, by SC Resolution
1887 (2009), affirmed
that such security assurances strengthen the nuclear non-proliferation
regime.
[8]
William H. McNeill, supra note 3, at
368, recalls that the balance of terror policy, ‘... arose in the decade after
1957, as the [United States and USSR] installed hundreds of long-range missiles
and so became of destroying each other’s cities in a matter of minutes.’ The policy was in response to the highly armed, militarily
charged and politically unpredictable environment in which states operated.
Hence, more countries obtained the weapons; and others are still trying to
acquire them up to now.
This policy is closely related to the finite
deterrence nuclear theory, which was originally innovated by
France. Henry Sokolski, supra note 1, at 41, states
that according to this theory, ‘... smaller nations could keep
larger nuclear
powers from
threatening them militarily by acquiring a small number of nuclear weapons of their own.
With their limited nuclear arsenal, the
smaller nations might
not be able to
prevail in war against a larger power but could
effectively “tear an arm off” by targeting the larger nation’s key cities, and thus deter such
nations from ever attacking.’
[9] Kevin D. Paulson, Coming to Terms (1985), at 11.
[10] George P Schultz et al., supra note 2.
[11] Henry Sokolski, supra note 1, at 40.
[12] Ibid., at 34-35.
[13] As described by George P Schultz et al., supra note 2.
[14] By 1962, the UN Secretary General had
embarked on an inquiry about the conditions under which non-nuclear-weapon
states ‘might be willing to enter into specific undertakings to refrain’ from
acquiring weapons. Henry Sokolski, supra note 1, at 41-48 gives a precise account of the negotiations
leading to the conclusion of the grand bargain and the enactment of the NPT. Particularly
at pages 41-42, he states that, ‘Sixty-two nations replied, most of them wanting specific neighbors or
all the states within their region to foreswear acquiring nuclear weapons as a
condition for their doing likewise. Other nations, such as Italy, wanted the
nuclear powers to halt their nuclear buildup. Meanwhile, the three nuclear
powers that answered the inquiry indicated that general and complete
disarmament was the best solution.’
[15] Eldon V. C. Greenberg, ‘Peaceful Nuclear Energy and the Nuclear Nonproliferation Treaty’, in
Henry Sokolski (ed) Reviewing the Nuclear Nonproliferation
Treaty (2010)
105, at 110, states that there was need ‘... to establish a comprehensive, loophole-free
agreement primarily aimed at enhancing security.’
[16] The International Atomic
Energy Agency (IAEA), in its Information Circular No. 140 (INFCIRC/140) of 22 April, 1970, reported that the NPT entered into force
on 5 March, 1970. The 1995 NPT review
conference unanimously approved the indefinite extension of the Treaty.
[17] Henry Sokolski, supra note 1, at 27.
[18] SC Res. 1887 (2009). See, Preamble
thereto.
[19] For purposes of this
essay, the terms ‘NPT’ and ‘grand bargain’ are synonymous with each other and
are consequently used interchangeably, such that a reference to the one
necessarily means a reference to the other.
[20] Treaty on the
Non-Proliferation of Nuclear Weapons (1968), Article IX(3). These
are China, France, Russia, the United Kingdom, and the United States of America.
[21] Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 4.
The term non-proliferation refers to control of
nuclear weapons. It means first, imposition of quota ceilings on quantity control i.e. not building more nuclear weapons, including
restraint from further spread or acquisition of them, to or by those who don’t
have them; and second, quality control i.e. not building better nuclear weapons,
by those who have them. As stated at page 6 of the report, the norm of
non-proliferation ‘... includes
the framework of legal restrictions, safeguards, export controls, international
cooperation, and other mechanisms that help to prevent proliferation,’ at the heart of which lies ‘... the international consensus that
the further spread of nuclear weapons would weaken all states’ security, as
well as global and regional stability ....’
The term disarmament, on the other hand, denotes
reduction of nuclear weapons.
The NPT permits peaceful use of nuclear energy and
acknowledges the right of all states to benefit from international cooperation
in this area. Hence, as stated by Eldon V. C. Greenberg, supra note 15, at 113, ‘The UN General
Assembly, in considering the final Treaty document and commending it to member
states for ratification, specifically stated that it was: Convinced that,
pursuant to the provisions of the Treaty, all signatories have the right to
engage in research, production and use of nuclear energy for peaceful purposes
and will be able to acquire source and special fissionable materials, as well
as equipment for the processing, use and production of nuclear material for peaceful
purposes.’
As noted at pages 5-6
of the US Delegation’s report, these three pillars are mutually reinforcing in
the sense that, ‘An effective nonproliferation regime whose members comply with
their obligations provides an essential foundation for progress on disarmament
and makes possible greater cooperation on the peaceful use of nuclear energy.
With the right to access the benefits of peaceful nuclear technology comes the
responsibility of nonproliferation. Progress on disarmament reinforces efforts
to strengthen the nonproliferation regime and to enforce compliance with
obligations, thereby also facilitating peaceful nuclear cooperation.’
[22] Leonard Weiss,
‘Nuclear-Weapon States and the Grand Bargain’ (2003). Available at file:///I:/Nuclear-Weapon%20States%20and%20the%20Grand%20Bargain%20_%20Arms%20Control%20Association.htm.
[23] Treaty on the
Non-Proliferation of Nuclear Weapons (1968), Article VI. Leonard Weiss, supra
note 22, recalls that the addition of Article VI to the treaty blunted attacks by
India and others that the early proposals of the NPT were unacceptably
discriminatory in favour of the five nuclear-weapon states and allowed the Treaty
to go forward, albeit without the Indians, who would not give up their right to
make nuclear weapons. That the indefinite extension of the NPT in 1995 was
predicated, in part, on assurances of continued commitment by the
nuclear-weapon states to Art. VI.
[24] Ibid. These states are committed to abandoning their nuclear weapons
eventually. As Professor
Dingli Shen, supra note 7, says, this
is because if the holders of nuclear weapons decided to permanently hold them,
it would be very hard to make the world permanently nuclear free.
But
there are states, particularly India, Israel and Pakistan, which manufactured
and exploded nuclear weapons subsequent to the Treaty. These are unaccounted
for since they do not fall under any specific category under the Treaty. One
would be forgiven for tempting to think that they bear no obligations
thereunder. It is submitted however, that since law abhors a vacuum, these
states carry the same obligations as the original five nuclear-weapon states.
[25] Ibid., Article I. This is a non-transfer pledge and as Leonard Weiss,
supra note 22 says, ‘The obligations contained in
Article I of the NPT are among the most critical elements of the current
nonproliferation regime because, without outside assistance, would-be
proliferators, even if relatively advanced technologically, are hard-pressed to
succeed in their plans. Indeed, the history of proliferation tells us that
every country that has decided to make nuclear weapons since the end of World
War II received assistance in its nuclear endeavor either as a result of
scientific collaboration with the United States or other states with nuclear
weapons or via espionage. The Soviet Union’s first weapon was at least
partially assisted by espionage at the Manhattan Project, and the Soviets in
turn provided important assistance to the Chinese program. The French and
British programs were assisted by their collaboration with the United States on
the Manhattan Project. France made a conscious decision in 1956 to give Israel
the means to acquire the bomb, and Israel in turn provided some assistance to
the French program and perhaps to the South African program as well, possibly
in return for South African nuclear materials. The Indian program was
substantially aided by the unwitting assistance of Canada and the United
States. The Pakistani program proceeded from theft of design plans for a
European nuclear enrichment plant, assistance from China, and a substantial
clandestine worldwide purchasing program for the technology and components to
complete the needed infrastructure to make weapons.’
[26] Treaty on the
Non-Proliferation of Nuclear Weapons (1968), Article II.
[27] Ibid. This is a non-receipt pledge. These commitments stem from those of nuclear-weapon
states to abandon their nuclear arsenals. Henry Sokolski, supra note 1, at 29-30, describes this
as a deal, whereby ‘... forswearing
nuclear weapons
required a quid pro quo—i.e., a requirement for the superpowers to take effective
measures to end the nuclear
arms race ....’
Equally so, Professor Dingli Shen, supra
note 7, sees it in more or less the same light: a need for a balance if non-nuclear-weapon states are to keep
their non-nuclear status.
[28] Professor Dingli
Shen, supra note 7.
[29] Henry Sokolski, ‘The Nuclear Nonproliferation
Treaty’s Untapped Potential to Prevent Proliferation’, in Henry Sokolski (ed) Reviewing the Nuclear Nonproliferation
Treaty (2010) 3, at 7.
[30] Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 9-10.
[31] Treaty on the
Non-Proliferation of Nuclear Weapons (1968), Preamble thereto and Article VI. In an advisory
opinion of 8 July, 1996, the International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (1996), ICJ Reports (1996) 226, unanimously stated
that this is an existing obligation on member states. The UN Security Council, supra note 18, emphasized this
obligation by calling upon parties to the NPT to undertake these negotiations
and also called upon other states to join in this endeavour.
The ‘Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ at
10, notes that, ‘There has been significant progress on disarmament since the
NPT’s entry into force. The Cold War era nuclear arms race between the United
States and the Soviet Union ended two decades ago. Treaties banning chemical
and biological weapons are now in force. At the 2000 NPT Review Conference, the
five NPT nuclear-weapon states reiterated their commitment to the elimination
of nuclear weapons. The United States, through negotiated agreements and
unilateral actions, has reduced significantly its nuclear stockpile, reduced
the role that nuclear weapons play in its security policy, and removed from its
stockpile excess highly-enriched uranium and plutonium.’
However, Henry Sokolski, The NPT’s Untapped Potential, supra note 29, at 6, writes that, ‘Nonweapons states point out that none
of these objectives has yet been met.’ George P Schultz et al., supra note 2, would agree, because they
are of the opinion that, ‘The steps we are taking now to address these threats are
not adequate to the danger. With nuclear weapons more widely available, deterrence
is decreasingly effective and increasingly hazardous.’
[32] George P Schultz et al., supra note 2, quote Mikhail Gorbachev,
who signed the first treaties on real reductions in nuclear weapons, saying that,
‘It is becoming clearer that nuclear weapons are no longer a means of achieving
security; in fact, with every passing year they make our security more precarious.’
But limiting the role
of nuclear weapons in security policy seems far from possible. Hans M. Kristensen, ‘Nuclear Weapons Modernization: A Threat to the NPT?’
(2014),
notes that ‘All
nuclear-armed states speak of nuclear weapons as an enduring and indefinite
aspect of national and international security.’ This is a show of hypocrisy,
but interestingly, they are not alone in this: Kristensen also notes that, ‘Moreover,
many non-nuclear-weapon states that publicly call for nuclear disarmament
continue to call on nuclear-armed allies to protect them with nuclear weapons.’
He gives a case in point of ‘... five non-nuclear-weapon states in NATO [that] have
volunteered to serve as surrogate nuclear-weapon states by equipping their
military forces with the necessary tools to deliver U.S. nuclear weapons in
times of war.’ In his view therefore, ‘... although the numerical nuclear arms
race between East and West is over, a dynamic technological nuclear arms race is
in full swing and may increase over the next decade.’
Leonard Weiss, supra note 22, states the danger in
this: ‘To the
extent that nuclear weapons are seen by the nuclear-weapon states as central to
their strategic posture and foreign policy, the message being sent to the world
is that the commitment to Article VI is a sham, and that nuclear weapons bring
international prestige and other benefits.’
[33] Hans M. Kristensen, ‘Nuclear Weapons Modernization: A Threat to the NPT?’
(2014). The most Russia and the United States
did was signing the Strategic Arms
Limitation Treaty (SALT) in 1972, setting a ceiling on their weaponry. The
SALT mainly targeted long-range bombers, submarine-launched missiles and the
intercontinental ballistic missiles. Ironically, even with the SALT in place,
the two countries increased their nuclear arms. For example, in 1970, USA had a
total of 4000 nuclear warheads, which however increased to 9200 by 1980; while
USSR had a total of 1800 nuclear warheads in 1970, which increased to 6000 by
1980. See, William H. McNeill, supra
note 3, at 372.
Further, William
H. McNeill, supra note 3, at 374,
notes that the paradox however, is that
nuclear-weapon states find themselves in a helpless situation today: they are
‘... hampered by the very formidability of their weaponry ... unable to use
atomic warheads as to do without them.’ To him (ibid., at 382), ‘... the absurdity of devoting enormous resources
to the creation of weapons no one dares to use is obvious to all concerned.
This means that the vast armed establishments currently protecting the NATO and
Warsaw Pact powers against one another are liable to catastrophe not merely
from the external attack they are designed to survive but also from internal
decay.’
In a bid to end
this dilemma, the UN Security Council, by Resolution
1887 (2009),
Article 2
thereof, ‘Calls upon States Parties to the NPT to comply fully with all
their obligations and fulfil their commitments under the Treaty,’ and under
Article 3, ‘Notes that enjoyment of
the benefits of the NPT by a State Party can be assured only by its compliance
with the obligations thereunder.’
[34] George P Schultz et al., supra note 2. There are varied reports
concerning the nuclear weapons deployments of Russia and the United States and
perhaps their allies. Professor Dingli Shen, supra note 7, estimates the figure at more than 20,000 nuclear
weapons each, saying that for 20-30 years now, they have been lowering to
5000-3000; Henry Sokolski, The NPT’s Untapped Potential, supra note 29, puts the
figure at over 75,000, which he says has been reduced ‘... to fewer than 10,000;’
Leonard Weiss, supra note 17, puts it
at 10,000 each, reduced to 6000. Profesor Shen says that the ideal should be
2000-1000.
[35] William H. McNeill, supra note 3, at 383, cautions that,
‘... as long as rivalry between mutually suspicious states continues, deliberate
organized invention seems certain to persist, cost what it may.’ Issues like Russia’s mistrust of America’s missile defence system in
Europe are key diving factors of this.
[36] Leonard Weiss, supra note 22. He goes on to say that, ‘In this respect, the NPT
obligations of the nuclear-weapon states are crucial. If collective action to
confront a proliferator and roll back or otherwise neutralize its program is to
be successful, the most powerful nations must come to the table with clean
hands if their leadership is to be viewed seriously and not cynically. At the
same time, this task is made more difficult by the fact that the five
nuclear-weapon states recognized by the NPT (the United States, Russia, France,
the United Kingdom, and China), by virtue of their special status as permanent
members of the UN Security Council, enjoy veto power over UN sanctions and
investigations. Enforcing adherence to their commitments requires them to
police themselves and each other.’
[37] George P Schultz et al., supra note 2,
state that, ‘The U.S. and Russia ... have a special responsibility, obligation
and experience to demonstrate leadership, but other nations must join.’ They
believe that, ‘As the reductions proceed, other nuclear nations would become
involved.’
Otherwise,
Henry Sokolski, the History of the NPT,
supra note 1, avers that, ‘... smaller nations might prefer to acquire
their own nuclear forces rather than allow an ever-escalating and threatening
nuclear arms race between the major nuclear states go unchallenged or have to
depend on unreliable superpower guarantees of nuclear security. From this
perspective, asking states without nuclear weapons to forgo acquiring them is
asking them to forgo exercising a right that could be in their national
security interest.’
Professor Dingli Shen,
supra note 7, emphasizes that, ‘China
has not been and does not deserve to be invited [to disarm] because they have
too few – about 200-300. When the US and Russia have 300, they will invite
China; but now it is impossible for China to reduce when they still have 3000.
China doesn’t want to be a great hero. 3000-300 is unequal. ... Without nuclear
weapons, we would have huge moral authority to tell anyone to abandon theirs.’
[38] Eldon V. C. Greenberg, supra note 15, at 108,
attributes this achievement to the combined effect of Articles I and II, saying they, ‘... are
what make the Treaty a treaty against proliferation.’ This enhances
international peace and security.
Before the NPT, five states (China, France, Union of Soviet
Socialist Republics, United Kingdom and United States of America) acquired nuclear weapons in 23 years, from 1945 to 1968, while with
the NPT, only three states (India,
Israel and Pakistan – all non-NPT members) have
acquired the weapons in 45 years, from 1968 to 2013. Without it, we would have
seen more states acquiring nuclear weapons, thus making the world more
dangerous. Probably
a minimum of 15 countries would have obtained them, assuming that 20 years time
is what is needed for five states to acquire nuclear weapons; such that in 45
years, an additional minimum of 10 states would have acquired them. Thus, the ‘Report
of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review
Conference,’ states at page 7, that in the mid-20th century, there were
predictions that 20 to 30 states would acquire nuclear weapons, which the NPT
has proved wrong.
Nuclear non-proliferation
has been made possible majorly through galvanized international efforts against
further weapons-oriented nuclear enrichment and development purposes. The best
example is the 1990-1991 Gulf War experience, which exposed Iraq’s secret extensive
nuclear weapons program, in spite of the existence of IAEA safeguards against
hazardous nuclear developments. This program was dismantled by international
efforts, leading to Iraq’s successful reintegration into the nuclear non-proliferation
regime. The other example is Libya, which in December 2003, acknowledged and
eliminated its nuclear weapons program and cooperated fully with IAEA efforts
to verify the scope of its nuclear activities and undertook to ensure that any
remaining facilities are fully safeguarded.
[39] Henry Sokolski, the History of the NPT, supra note 1, at 35. The UN Security Council, by
Resolution
1540 (2004)
of 28 April 2004, provided further safeguards against
proliferation by unanimously adopting a binding
instrument which addresses the threat posed by non-state actors, including
terrorists, of acquiring such weapons or related materials. The operative
Paragraph 5 of the Resolution clearly states that it has no conflict with or
alter the rights and obligations of State Parties to the NPT and other related
conventions (like the 1972 Biological
(and Toxin) Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC)). Further, it is stated that the
Resolution does not
alter the responsibilities of the IAEA and OPCW.
The Resolution covers all fields of weapons of mass destruction (nuclear,
chemical, and biological) and their means of delivery, as well as related
materials. It basically obligates states to one, refrain from providing any form of support to non-state actors that attempt to develop,
acquire, manufacture, possess, transport, transfer or use WMDs and means of
delivery; two, adopt and enforce appropriate
effective laws that prohibit any
non-state actor such activities, including acting as an accomplice, or to
assist or to finance; and three, impose necessary domestic controls: (a) accountability, (b) physical protection, (c)
border controls and law enforcement efforts and (d) national export and
trans-shipment controls, including controls on providing funds and services,
such as financing and transporting, criminal or civil penalties for violations.
[40] The ‘Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ at
10-12 reveals that Iran and North Korea are notable
here. North Korea has consistently been non-compliant with its NPT
safeguards obligations. The country is seriously trying to manufacture and
explode nuclear weapons; ostensibly because it wants to guarantee its security,
since it does not trust other states and international bodies, including the
United Nations, reasoning they may not come to one’s aid when in danger. It has
not honoured its September, 2005 commitments to abandoning all nuclear weapons
and existing nuclear programs and to return, at an early date, to the NPT and
to IAEA safeguards, after its announced intention to withdraw from the Treaty in
January 2003. It has severally announced nuclear tests and currently faces UN
Security Council sanctions.
On the other hand, Iran
has conducted unreported nuclear activities, including enrichment, for many
years, using both legal and illegal means. Professor Dingli Shen, supra note 7, believes that Iran is not
straight forward that it is building nuclear programs for peaceful purposes;
and that worries the rest of the world. He suggests that Iran needs to open its
facility. Understandably therefore, the IAEA has (particularly in 2005) found it
in non-compliance with its NPT-mandated safeguards agreement, under Article
XII(C) of the Agency’s Statute (i.e. the Statute
of the International Atomic Energy Agency (1956) (as amended up to 23 February, 1989)).
On several occasions, the UN Security Council has passed resolutions calling on
Iran to suspend its enrichment-related activities and heavy water-related
projects and imposed sanctions on it for lack of compliance.
The UN
Security Council, by Resolution 1887 (2009), Article 4 thereof, ‘Calls
upon all
States that are not Parties to the NPT to accede to the Treaty as
non-nuclear-weapon States so as to achieve its universality at an early date,
and pending their accession to the Treaty, to adhere to its terms.’
[41] Leonard Weiss, supra note 22. For example, Russia,
which advanced
Tehran’s ability to acquire nuclear technology by aiding Iran in the
construction of a nuclear reactor at the city of Bushehr; China and the United
States, which have assisted and collaborated with Pakistan in further
enrichment of its nuclear weapons program; and Pakistan facilitated the nuclear
capability of both North Korea and Iran – by trading nuclear weapons-related
technology with the former in return for missile technology, while Iran
admitted that its clandestine work on nuclear enrichment was also aided by
Pakistan. Weiss says that one of the likely consequences of these unholy
trading activities is terrorist acquisition of nuclear weapons, a threat that
was not envisioned when the NPT was drafted nearly four decades ago.
The other consequence of non-compliance
with non-proliferation obligations, observed by George P. Schultz et al., supra note 2, is that now, ‘There are nuclear weapons materials in more than 40 countries around the world ...,’ with more reportedly being smuggled to Eastern Europe
and the Caucasus.
[42] The ‘Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at
3,’ states that the first nuclear device was tested
by the United States at Alamogordo, New Mexico, in the summer of 1945. It
should be recalled that the United States was also the first and last country
to use nuclear weapons in war. Next, according to William H. McNeill, supra note 3, at 366, was the Union of Soviet Socialist Republics (USSR, present
day Russia), which exploded its first nuclear device in 1949, an act
that sparked off a nuclear arms race, one that McNeill says, at page 374, has
‘... proved contagious, affecting all parts of the earth.’ It is a well known
fact however, that Germany, under the Nazis, was the first country in the world
to attempt building nuclear weapons.
[43] Ibid. Of particular concern was the fact that more and more
countries were exploding nuclear devices in the name of ‘peaceful purposes,’ yet
concern heightened that the spread of nuclear technology for peaceful purposes
could not be divorced from the proliferation of nuclear weapons.
On 26 October, 1956,
the International Atomic Energy Agency (IAEA) was approved by the International Atomic Energy Agency Statute
(as amended up to 23 February, 1989) in a bid to strike
this delicate balance. Article II of the Statute states the IAEA’s objectives.
It states that, ‘The Agency shall seek to accelerate and enlarge the
contribution of atomic energy to peace, health and prosperity throughout the
world. It shall ensure, so far as it is able, that assistance provided by it or
at its request or under its supervision or control is not used in such a way as
to further any military purpose.’ The Statute came into force on 29 July, 1957.
[44] Treaty on the
Non-Proliferation of Nuclear Weapons (1968), Article IV. Peaceful
application of nuclear energy is a theme that traverses the entire script of
the NPT. As stated by Henry
Sokolski, the History of the NPT, supra note 1, at 50, ‘... all civilian nuclear energy transfers are
meant to compensate [non-nuclear-weapon states] for their restraint and to
assure them equal access to technology that the states with nuclear weapons already
had.’
The ‘Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ at
8, notes that the NPT has enabled tremendous growth in the peaceful use of
nuclear energy. There are nuclear applications in food security, disease
prevention, medicine, water resources, electricity generation (nearly 15% of
the world’s electricity) and environmental management that are improving the
lives of people around the world every day.
The guarantees of peaceful applications lie in acceptance of inspection of non-nuclear-weapon
states’ reactors and
territories to ensure that they are living up to their undertakings under the Treaty
(see, Article III thereof). Although, Henry
Sokolski, The NPT’s Untapped Potential, supra
note 29, at 3-4, is of the view that, ‘Unfortunately, these
procedures [intended to detect illicit nuclear activities and materials], which are required of
all non-nuclear weapons state members of the NPT under Article III, are rickety at best,’ because, ‘Not only has the IAEA failed to find
existing covert reactors and fuel-making plants, which are critical to bomb
making, the agency still cannot assure the continuity of inspections for spent
and fresh reactor fuels that could be processed into bomb usable materials at
roughly two-thirds of the sites that it currently inspects. What is easily as
worrisome is that even at declared nuclear fuel-making sites, the IAEA
routinely loses count of many bombs’ worth of production each year. [Yet] ...
in the practical world, the NPT hardly admits of modification and is far too
easy for violating states to withdraw from. Under Article X, treaty members are
free to leave the NPT with no more than 3 months notice merely by filing a
statement of the “extraordinary events [relating to the subject matter of the
treaty] it regards as having jeopardized its supreme interests.” As North Korea
demonstrated with its withdrawal from the NPT, these slight requirements are all too easy to meet.’ Worse still,
he says, the Treaty is functionally unamendable. He submits that, ‘For all of
these reasons, the NPT is not just seen as being weak against violators and
difficult to improve, but it is seen effectively as a legal instrument that enables nations to acquire nuclear weapons
technology,’ thereby rendering it open to cynical manipulation to develop and
acquire nearly all materials necessary for nuclear weapons manufacture.
[45] Article III of the
NPT links safeguards to export controls by requiring the application of IAEA safeguards
to nuclear exports to non-nuclear-weapon states. Two bodies – the Zangger
Committee and the Nuclear Suppliers Group – are committed to developing export
controls to prevent the diversion of nuclear and nuclear-related exports from
peaceful to weapons purposes, without hindering cooperation on the peaceful use
of nuclear energy.
By 2010, more than 60
countries were considering new civil nuclear power programs, and efforts to
help them develop their infrastructure through civil nuclear cooperation have received
generous responses. The IAEA’s Technical Cooperation Program has enhanced the
capabilities of more than 100 IAEA member states to benefit from peaceful
nuclear energy uses.
[46] Treaty on the
Non-Proliferation of Nuclear Weapons (1968), Article III(1). But Article III(3) of the NPT makes it clear that the Treaty endeavours ‘...
to avoid hampering the economic or technological development of the Parties or
international co-operation in the field of peaceful nuclear activities,
including the international exchange of nuclear material and equipment for the
processing, use or production of nuclear material for peaceful purposes ....’
The unambiguous rule is that non-nuclear-weapon
states
should desist from acquiring nuclear weapons; and nuclear-weapon states should
desist from constant
quantitative
and qualitative
improvement of their strategic forces – an unnecessary and provocative build-up,
since only a small nuclear arsenal is needed to threaten to knock out an
opponent’s major cities. Both should desist from direct or indirect unlawful
use of nuclear weapons or devices.
To this end, the United Nations has boosted the
NPT by creating several offences which criminalize state and individual diversion
and misuse of nuclear materials, particularly pertaining to nuclear terrorism. On
14 September,
2005, the UN opened for signature the International Convention for
the Suppression of Acts of Nuclear Terrorism, Article 2 of which creates the offences. First, under paragraph (1)(a) of
Article 2, it is an offence for any
person to ‘unlawfully and intentionally’ posses, make or use radioactive
material or other device, with the intent to cause death or serious bodily
injury, or cause substantial damage to property or to the environment. Second, under
paragraph (1)(b), it is an offence for any
person to ‘unlawfully and intentionally’ damage a nuclear facility or use
radioactive materials or devices in a manner which releases or risks the
release of radioactive material,
with the intent to cause death or
serious bodily injury, or cause substantial damage to property or to the
environment, or compel a natural or legal person, an international
organization or a state to do or refrain from doing an act. Third, under paragraph (3) of Article 2, it is an
offence to attempt to commit an offence stated in paragraph (1) thereof. Fourth,
under paragraph (2)(a) of Article 2, it is an offence if any person credibly threatens to commit an offence as set
forth in Article 2(1)(b). Fifth,
under paragraph (2)(b) of Article 2, it
is an offence if any person demands unlawfully and intentionally,
radioactive material, a device or a nuclear facility by threat, under
circumstances which indicate the credibility of the threat, or by use of force.
Sixth, under paragraph (4)(a) of Article 2, it is an offence if any person participates as an accomplice
in an offence as set forth in paragraphs (1), (2) or (3) thereof. Seventh, under
paragraph (4)(b) of Article 2, it is an offence if any person organizes or directs others to commit an offence as set
forth in paragraphs (1), (2) or (3) thereof. Eighth, under paragraph (4)(c) of
Article 2, it is an offence if any person
intentionally or with the aim of furthering the general criminal activity or purpose
of a group of persons acting with a common purpose, contributes to the
commission of one or more offences as set forth in paragraphs (1), (2) or (3)
of Article 2. Indeed, at the 2009 Historic Summit of
Security Council, the Council, in its Resolution, supra note 18, was, ‘Gravely concerned about
the threat of nuclear terrorism, and recogniz[ed] the need for all
States to take effective measures to prevent nuclear material or technical
assistance becoming available to terrorists.’
[47] For example, in 1974, India exploded its first nuclear device, termed
for peaceful purposes. Yet today, it is a nuclear-weapon state: its claim was
therefore, false, dishonest, intended to deceive and mislead. Henry Sokolski, the NPT’s Untapped Potential, supra note 29, at 5, states that as a
non-nuclear-weapon state, India violated
its pledges not to misuse US and Canadian civilian nuclear energy aid; for this, it was sanctioned
by the United States and most nuclear supplying states by depriving it of
access to most controlled civilian nuclear supplies (see, Ibid., at 8-9). This deceptive concealment poses great challenges of mistrust of
all states claiming to develop nuclear energy for peaceful purposes. The international
community may not predict with accuracy, the end result of their nuclear
programmes. I submit that the
memory of India’s deception partly explains why the international community is
hesitant to trust and believe Iran’s assertion that its nuclear enrichment
programme is for peaceful purposes. But it is not surprising when states go to
such lengths, because matters of nuclear weapons are overly sensitive and
controversial, bordering on a do-or-die basis, since the state psychic seems to
be that you either get the bomb or stand to be damned.
[48] Report of the US
Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 6.
[49] Ibid., at 7. According to page 6 of the report, only three states –
India, Israel and Pakistan – have never adhered to the Treaty; while only one
state, North Korea, has announced its withdrawal from it.
[50] For sure, my mind
perceives the drastic decline of public fear of the threat posed by nuclear
weapons. I recall that while a little boy in the 1990s, talk was rife and fear
pervasive of nuclear weapons and their potential disaster in media reports and
individual discussions. This tense situation is largely no more; so much so
that it appears much of the perceived danger of nuclear weapons now rests with
elite circles in governments and academicians alone.
Otherwise, the peoples
of the earth – whom some call The Other
Superpower (see, Jonathan Schell, ‘The Other Superpower,’ The Nation (2003)) – are comfortably
moving on with life, under their famous global peace movement zeal. This has restored hope for peace and stability in a once
fragile world, trembling under the fear of nuclear warfare.
[51] In light of them, we may as well say that it is big success and some bit of
failure for the grand bargain: something like the half-full, half-empty glass analogy.
[52] Professor Dingli Shen, supra
note 7, suggests that, ‘Nations should look to other forms of power and
security concepts dependent upon institutional innovation, science and
technology, education strength and competences, social welfare, national health
protection, social safety networks and formidable commission of deterrence. The
strength of superpowers comes from these, including conventional weaponry, but
not unconventional weaponry – meaning chemical or biological nuclear.’
[53] William H. McNeill, supra note 3, at 383, proposes that,
‘... To halt the arms race, political change appears to be necessary. A global
sovereign power willing and able to enforce a monopoly of atomic weaponry could
afford to disband research teams and dismantle all but token number of
warheads. Nothing less radical than this seems in the least likely to suffice.
Even in such a world, the clash of arms would not cease as long as human beings
hate, love, and fear one another and form into groups whose cohesion and
survival is expressed in and supported by mutual rivalry. But an empire of the
earth could be expected to limit violence by preventing other groups from
arming themselves so elaborately as to endanger the sovereign’s easy
superiority. War in such a world would therefore sink back to proportions
familiar in the preindustrial past. Outbreaks of terrorism, guerrilla action
and banditry would continue to give expression to human frustration and anger.
But organized war as the twentieth century has known it would disappear.
The alternative
appears to be sudden and total annihilation of the human species.’
We therefore, need a
great hero, which, Professor Dingli Shen, supra note 7, said China doesn’t want to
become; and rightly so, considering its minimal nuclear arsenal. I think the
United States, with its enormous global power, can be the world’s great hero.
[54] As envisaged by George P Schultz et al., supra note 2, who have vividly submitted
that, ‘In
some respects, the
goal of
a
world free of
nuclear weapons is
like the
top
of
a
very tall mountain. From the
vantage point of
our
troubled world today, we
can't even see the
top
of
the
mountain, and
it
is
tempting and
easy to
say
we
can't get
there from here. But
the
risks from continuing to
go
down the
mountain or
standing pat
are
too
real to
ignore. We
must chart a
course to
higher ground where the
mountaintop becomes more visible.’
