BASIC Getting to Zero Papers, No. 13
NATO nuclear burden sharing and NPT obligations
23 April 2009
Laura Spagnuolo, BASIC
This Paper is also available in pdf
format.
Introduction
NATO's summit released its Declaration
of Alliance Security on 3rd April, announcing a major
review of its Strategic Concept. The review will cover all
aspects of NATO's strategic policy, including its nuclear
posture. Perhaps most obviously those nuclear weapons explicitly
assigned exclusively to NATO operations — the US tactical
nuclear weapons in Europe — will be a part of the discussions.
Their continued deployment remains an open issue, and the
new Strategic Concept presents an opportunity to close legal
loopholes that threaten the cohesion of the NPT.
The deployment of American warheads in European non nuclear
states has repercussions in international law, regardless
of whether they are stationed at US or NATO military bases.
The key international frameworks that regulate the stationing
of US nuclear weapons in NATO member states, in addition to
the terms of the NPT, are outlined in the Alliance's legally
enforceable "Agreements for cooperation on the use of atomic
energy for mutual defense purposes". This paper examines the
effects of these agreements and their compatibility with the
terms of the Non Proliferation Treaty (NPT).
The obligation to disarm, as defined in the preamble to the
Non Proliferation Treaty (NPT) and highlighted in the International
Court of Justice's Advisory Opinion on the threat or use of
nuclear weapons[1] , is general in its scope and susceptible to
broad interpretation. Unfortunately, this undermines its legal
effectiveness. Nevertheless, the principle of good faith in
the interpretation of international treaties is mandated by
the Vienna Convention on the Law of Treaties. The review of
the Strategic Concept presents an opportunity to consider
NATO's nuclear weapons policy, and ensure that its deployment
of nuclear weapons, and its posture, is consistent with both
the letter of the Treaty and with the intentions of NATO members
to strengthen the provisions of NPT in future. As parties
to the NPT, all NATO members have a responsibility to observe
and uphold its objectives, including the obligation to proceed
toward global nuclear disarmament.
The 1999 Strategic Concept largely retained NATO's traditional
Cold War nuclear posture, with the use of nuclear weapons
being largely determined by immediate military objectives
as opposed to longer term political or diplomatic considerations.
The current and future options for NATO have been recently
explored in "Towards a Grand Strategy for an uncertain
world". The report, written by five former NATO member
Chiefs of Defence Staff, proposes a new security strategy
aimed at reinvigorating transatlantic partnerships through
a range of instruments of both soft and hard power. The article
proposes measures to strengthen these relationships by enforcing
proactive deterrence, prevention and interactive escalation.[2] The 2007 Grand Strategy expands upon what
is already an open option by proposing the threat of preventative
nuclear strikes. Such a development would further stretch
the legal basis of what is already a controversial doctrine
within NATO. Rather than seeking new roles for its nuclear
posture, NATO members need to consider the role they play
in strengthening non-proliferation.
Nuclear sharing regulations
Approximately 200 U.S. tactical nuclear weapons are thought
to be currently deployed in Europe at six NATO bases in five
non-nuclear weapon states.[3] Through various NATO nuclear sharing agreements,
the vast majority are assigned for delivery by the air forces
of four non-nuclear NATO member states (Belgium, Germany,
Italy and the Netherlands) and are stored within vaults using
the WS3 Weapons Storage and Security System under the control
of the USAF. The codes required for detonating them are all
under U.S. control, with the intention of the transfer of
the warheads to the host state and codes at a time of conflict.
The legal regulations for US nuclear weapons deployment in
Europe in addition to the multilateral legal commitments under
the NPT) are of three levels:
- Agreements governing the use of the territorial state
military bases (between US or NATO and a host or user country);
- Agreements for cooperation on the use of atomic energy
for mutual defense purposes (between the US and a user country);
- Technical agreements implementing the previous.
Level I: Agreements governing the use of the territorial
state military bases
These accords are often referred to as 'umbrella agreements'
and are both general in nature and scope. The legal basis
for constructing a US base within another NATO member state
stems from the so called bilateralization agreement defined
in Art. 3 of the NATO Treaty, according to which:
"... the Parties, separately and jointly, by means
of continuous and effective self-help and mutual aid, will
maintain and develop their individual and collective capacity
to resist armed attack".
The construction of an American military base on another
NATO member's soil nevertheless requires the conclusion of
an independent bilateral agreement between the U.S. (or NATO)
and the territorial state itself. According to the jurisprudence
of the International Court of Justice there is no general
right enabling a state to use or establish military facilities
in another state.[4] It must be undertaken with the express consent
of the host country and within the bounds of any restrictions
imposed by the host.
Level II: Agreements for cooperation on the use of atomic
energy for mutual defense purposes
These are unclassified bilateral agreements which determine
the rules by which U.S. nuclear weapons are deployed in NATO
countries. The agreements outline the conditions regarding
the exchange of information and the transfer of non-nuclear
parts of weapons, including the delivery, transport and storage
systems that are required to ensure deployment.
Level III: Technical agreements (implementing level I and
level II agreements)
These are bilateral, classified agreements between the US
and each user country, covering issues such as:
- Atomic Stockpile Agreements, regulating the introduction
and location of the stocks, their custody, transportation,
security, safety and release of weapons and cost sharing;
- The Atomic Cooperation Agreements, providing for the exchange
of information for mutual defense purposes;
- The Service-Level Agreements, providing details for nuclear
deployment and use;
- Third Party Stockpile Agreements, trilateral government-to-government
agreements regulating stockpiling of nuclear weapons within
the territory of a third-nation for the use by NATO forces.[5]
NPT Articles 1 and 2
Level II Agreements were signed in the years 1954-1962,[6] prior to the entry in to force of the NPT. There
may, therefore, be some question as to whether the NPT provisions
apply to them. The Vienna Convention on the Law of Treaties
(VCLT), concluded in 1969 and entered into force in 1980,
governs the relationship between successive treaties, and
would clearly imply that NATO agreements for cooperation concluded
prior to the entry into force of the NPT would nevertheless
be bound by its requirements[7] .
The particular problems of compatibility focus upon NPT Articles
1, 2 and 6. Article 1 prohibits nuclear weapon states sharing
their weapons with non-nuclear states:
"Each nuclear-weapon State Party to the Treaty undertakes
not to transfer to any recipient whatsoever nuclear weapons
or other nuclear explosive devices or control over such weapons
or explosive devices directly, or indirectly; and not in any
way to assist, encourage, or induce any non-nuclear-weapon
State to manufacture or otherwise acquire nuclear weapons
or other nuclear explosive devices, or control over such weapons
or explosive devices."
Article 2 provides for a corresponding obligation on the
part of non-nuclear states parties not to receive nuclear
weapons:
"Each non-nuclear weapon State Party to the Treaty
undertakes not to receive the transfer from any transferor
whatsoever of nuclear weapons or other nuclear explosive devices
or of control over such weapons or explosive devices directly,
or indirectly; not to manufacture or otherwise acquire nuclear
weapons or other nuclear explosive devices; and not to seek
or receive any assistance in the manufacture of nuclear weapons
or other nuclear explosive devices."
If the United States explicitly transferred nuclear warheads
to its NATO allies it would unambiguously break Article 1,
and their allies would be breaking Article 2. The tactical
warheads based in these host states are intended for delivery
by those host states. How does this not break the two articles?
The United States government points to two particular reasons,
or loopholes. Firstly, the transfer of the warheads only happens
at a point when hostilities break out and secondly, the transfer
of related technologies and hardware is not covered by the
NPT.
The claim that the NPT is not applicable during wartime,
and that member states can prepare now to break off their
NPT commitments in advance, is highly controversial. The traditional
view maintains that the declaration of war renders most treaties
null and void. Contemporary legal doctrine denies that war
has extinctive effect on multilateral treaties, unless,
in the light of the clause rebus sic stantibus, there
has been a radical change in the circumstances rendering the
treaty obsolete. The US view specifically in this instance
has been that the purpose of the NPT is to prevent proliferation,
and that if nuclear war were to break out it would have failed
and would therefore no longer apply.
Whether it is legal or not, the preparation by NPT members
to break with the terms of the Treaty certainly and undeniably
undermines its efficacy, the commitment of the Alliance to
the Treaty, and the willingness of members outside the Alliance
to stick to its provisions.
Article 6
The US claim that the NPT does not deal with nuclear capable
delivery systems (the aircraft) is not as clear-cut
legally as the Americans might hope.[8] This interpretation is based on the "Questions
on the Draft Non-Proliferation Treaty asked by US allies together
with answers given by the United States."[9] A relevant consideration is whether such a qualification
by the U.S. constitutes a reservation to the Treaty in question.
A Treaty reservation occurs when a state party submits an
interpretative qualification to a treaty exempting or conditioning
its compliance to a certain interpretation. While it was presented
to the Soviet Union and selected members of the Eighteen Nation
Disarmament Committee (ENDC), it was not submitted at the
time of the signature, ratification or accession to the Treaty.
Other states may not have been aware of its existence until
long after they signed the NPT and were not in a position
to object to it.
A state's capacity to submit such reservations is limited
by the Vienna Convention's Article 19. According to this provision,
states have the authority to submit reservations except when
they are expressly or implicitly forbidden by the treaty or,
if the treaty is silent, when they contravene its 'object
and purpose'.[10] The NPT Preamble expresses the desire of all
members 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 all their existing stockpiles, and the elimination from
national arsenals of nuclear weapons and the means of their
delivery", and "to end the nuclear arms race at the earliest
possible date". Article 6 of the Treaty commits all signatories
to pursue negotiations in good faith on effective measures
relating to ending the nuclear arms race at an early date,
to nuclear disarmament, and to a treaty on general and
complete disarmament. These provisions, as they were intended,
make clear the purpose of all parties—to move toward
the ultimate goal of both nuclear and general disarmament.
Making clear that the ultimate goal of disarmament is not
some indefinite future achievement, the ICJ's Advisory Opinion
on the Legality of the Threat or Use of Nuclear Weapons,
unanimously stated that the obligations under article 6 of
the NPT require members to "bring to a conclusion negotiations
leading to nuclear disarmament in all its aspects"[11] . The Final Document of the 2000 NPT Review
Conference, including the notorious 13 practical steps, required
"an unequivocal undertaking to accomplish the total elimination
of their nuclear arsenals leading to nuclear disarmament,
to which all states parties are committed under article 6
".
In contrast to Articles 1 and 2, which are limited in scope,
Article 6 provides a general obligation for the State Parties.
Stemming from the history of the NPT's negotiation and subsequent
development, it is indeed understood as denoting a package
of measures and a series of practical and irreversible steps
leading to nuclear disarmament in all its aspects.
On the face of it, both procedurally and substantially, the
US 'interpretative reservation' seeking to exclude delivery
systems from the scope of the NPT is not valid. It was not
submitted as a formal reservation and, in addition, stands
in contradiction to the NPT's object and purpose as set forth
in Art. 6. As a result, the Agreements for cooperation on
the use of nuclear energy for mutual defence purposes results
in a contradiction. They contravene the obligations that NATO
member states have undertaken as signatories of the NPT.
Conclusion
The continuing presence of American tactical nuclear weapons
in Europe has a questionable legal basis, and is increasingly
challenged in NPT circles by non-European non-nuclear weapon
states. While during the Cold War the arrangements may have
been largely overlooked, today the discrepancy with the NPT
could become a significant bone of contention, undermining
the treaty, so that a major political effort to correct the
situation is now justified. The review of the Strategic Concept
is an opportunity to do this prior to the crucial Review Conference
in May 2010.[12]
Endnotes
[1] [1]
International Court of Justice, Legality of Threat or Use
of Nuclear Weapons, Advisory Opinion, 8 July 1996. Available
on the web at http://www.icj-cij.org/docket/files/95/7495.pdf
[2] This includes the
use of " all instruments of soft and hard power, ranging from
the diplomatic protest to nuclear weapons". Idem.
[3] Hans
Kristensen, Federation of American Scientists, blog dated
June 26, 2008, available at: http://www.fas.org/blog/ssp/2008/06/us-nuclear-weapons-withdrawn-from-the-united-kingdom.php#more-259
[4] Permanent Court
of International Justice, The Case of S. S. "Lotus",
7 September 1927. Emphasis added.
[5] Idem.
[6] Belgium 1962, Italy
1960, Germany 1959, Turkey 1959, the Netherlands 1959.
[7] According to Article
4, its rules apply to agreements concluded before its entry
into force when deemed to constitute "customary acts of international
law". There is little doubt that Article 30 of the VCLT satisfies
this requirement- so that NATO agreements for cooperation
should be fully compatible with the NPT. On Art 30 of VCLT
as International Customary Law see See J. B. Mus, Conflict
between Treaties in International Law, 45 Netherlands
International Law Journal, 1998, p.213. On NATO Cooperation
Agreement and NPT see BASIC, the Acronym Institute for Disarmament
Diplomacy and Peacerights, Mutual Defence Agreement-Legal
Opinion, available at
http://www.basicint.org/nuclear/MDAlegal.htm.
[8] M. Wilrich, The
Treaty on Non-Proliferation of Nuclear Weapons: Nuclear Technology
Confronts World Politics, 77 Yale Law Journal 1968 , p.
1447, 1464.
[9] Questions on the
draft Non-proliferation Treaty asked by US allies together
with answers given by the United States, in NPT Hearing, US
Senate, 90-2, p. 262, note 35 in the PENN Research Report
2000.1, also available at
http://www.opanal.org/Articles/cancun/can-Donnelly.htm
[10] Art. 19 is considered
declaratory of jus cogens. See Benedetto Conforti,
Diritto Internazionale, Editoriale Scientifica, Napoli,
1997, p. 95-97.
[11] Emphasis added.
[12] Progressive reduction
and final elimination of delivery systems in the efforts is
often listed in official documents as a practical means to
general disarmament. See for example: Christopher A. Ford,
United States Special Representative for Nuclear Nonproliferation,
delivered at the Conference on "Preparing for 2010: Getting
the Process Right", Annecy, France, March 17, 2007. Available
at http://www.state.gov/t/isn/rls/other/81946.htm.
"Eliminating Delivery Systems: In parallel with reductions
in warhead numbers, the United States has been reducing its
nuclear delivery systems. Since the Cold War's end, the United
States has canceled the modern, highly sophisticated MGM-134
"Midgetman" missile, and halted production of other major
weapons systems such as the B-2 "Stealth" bomber. Under President
George H.W. Bush, the United States took out of nuclear weapons
service four Ohio-class nuclear-powered ballistic missile
submarines (SSBNs) carrying the Trident C-4 submarine-launched
ballistic missile (SLBM), and modified these vessels for other
uses. It also removed the B-1 "Lancer" bomber from strategic
service. To date, in fact, the United States has eliminated
more than 1,000 strategic missiles and bombers, and 450 silos
for ICBMs. The final MX "Peacekeeper" missile -- the last
of 50 -- was de-activated in September 2005, and the United
States recently announced that it will eliminate about 400
Advanced Cruise Missiles currently deployed with the B-52
bomber fleet".
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