Snaring the Sun*

Opportunities to prevent nuclear weapons proliferation

and advance nuclear disarmament

through an abolition framework.

by Alyn Ware, Kate Dewes and Michael Powles

February 2005

* Maori legend has it that the sun once raced across the sky making the days too short. Maui and his brothers used flax ropes to snare the sun and slow it down for the benefit of all humanity. Can the proliferation of nuclear weapons – mini-suns themselves – be similarly constrained and the abolition of nuclear weapons achieved for the security of all humanity?

In the 21st Century, as the ever-expanding exchange of peoples, cultures and trade across nations helps to ease nationalistic prejudices, and as the shibboleths of the Cold War subside, it is time to abolish nuclear weapons and make the world a safer place for all peoples. [1]

Rt Hon Helen Clark, Prime Minister of New Zealand

Alyn Ware is Consultant for theInternational Association of Lawyers Against Nuclear Arms and Global Coordinator of the Parliamentary Network for Nuclear Disarmament

Dr Kate Dewes O.N.Z.M (Officer of the New Zealand Order of Merit), is Director of the Peace Foundation Disarmament and Security Centre.

Michael Powles is a former New Zealand ambassador to the United Nations

All three are members of the New Zealand Public Advisory Committee on Disarmament and Arms Control.

For comments or further information contact the authors:

Alyn Ware at alyn@lcnp.org

Kate Dewes at kate@chch.planet.org.nz

Michael Powles at powles@paradise.net.nz

or see Peace Foundation Disarmament and Security Centre, www.disarmsecure.org

The authors thank Rob Green for his invaluable assistance in developing and editing this paper.

Cover illustration:

Te Wehenga O Rangi Raua Ko Papa by Cliff Whiting. National Library of New Zealand

Snaring the Sun: Opportunities to prevent nuclear weapons proliferation and advance nuclear disarmament through an abolition framework

Table of Contents:

  1. Summary
  2. Nuclear dangers
  3. Nuclear divide
  4. Abolition as a bridge between non-proliferation and disarmament
  5. Abolition still utopian? Developments making abolition more feasible
    1. Technical capabilities
    2. Legal norms
    3. International mechanisms
    4. Political conditions
    5. Public support
  6. Beyond nuclear deterrence: alternatives to nuclear weapons
  7. Terrorism and nuclear weapons
  8. How States can advance abolition
    1. Building political will
    2. Strengthening legal norms
    3. Considering the requirements for anuclear-weapons-free world
    4. Taking steps forward
  9. Current political opportunities
    1. UN Security Council Resolution 1540
    2. UN High Level Panel on Threats, Challenges andChange
    3. NPT ReviewProcess
    4. Southern Hemisphere and Adjacent Areas NuclearWeapon Free Zone
  10. Other possibilities
    1. Conference on Disarmament
    2. UN General Assembly negotiating conference
    3. NPT amendmentconference
    4. Ottawa-style process

i. Nuclear Weapon State

ii.State non-Party to the NPT

iii.State which has relinquished nuclear weapons

iv.States Parties to Nuclear Weapon Free Zones

v.Japan

vi.New Agenda Coalition

  1. Legal , technical and political requirements for achieving and maintaining a nuclear weapons free world
  2. Conclusion

1) Summary

The risk of a nuclear weapons catastrophe in the coming years or decades through accident, miscalculation or intent, appears from recent events to be increasing. These include:

· withdrawal of North Korea from the Non-Proliferation Treaty (NPT) and their development of a nuclear weapons programme

· continuing tensions between India and Pakistan which could include the possibility of an armed conflict and nuclear exchange

· revelations of a nuclear black-market involving State and non-State actors from a number of countries including Pakistan

· development of uranium enrichment in Iran and the increased potential that this could be used for a nuclear weapons programme

· the continuing importance placed on nuclear weapons in the security doctrine of the nuclear weapon States (NWS) including the development of new rationalizations for their threat of use or actual use.

There appears to be a growing divide in the international community between those countries (including the NWS) prepared to take stronger action – unilaterally or through coalitions – against potential proliferators, and those countries calling instead on the Nuclear Weapon States to lead by example and take greater steps towards disarming their own nuclear weapons.

This split could be bridged, and progress made on both non-proliferation and disarmament fronts, by adopting an abolition framework, i.e. through advancing norms which further de-legitimise nuclear weapons regardless of who may possess or aspire to possess them, and further developing the mechanisms which prevent their acquisition and provide for their systematic and verified elimination.

Despite entrenched policies of some of the NWS, the abolition approach – previously considered utopian – has become feasible due to advances in verification technology, compliance procedures, co-operative security mechanisms, changing international political and economic systems, and increased public support.

An abolition approach could overcome the rationale advanced by some States, currently possessing nuclear weapons or attempting to acquire them, that they need nuclear weapons to deter a nuclear attack. Other security concerns cited as rationales for keeping nuclear weapons, e.g. to prevent an overwhelming conventional attack, could be met through such measures as security guarantees.

There are growing risks of non-State actors obtaining and threatening to use nuclear weapons. The clandestine nature of non-State actor networks, combined with recent evidence of abuse by States of proliferation control mechanisms, has exposed the limitations of such regimes. A more effective response would be to adopt an abolition approach which implements comprehensive control mechanisms and prohibition norms at societal, national and international levels.

There are a number of ways to make progress on nuclear abolition even when key NWS are resistant. These include building political will, strengthening legal norms against nuclear weapons, considering the requirements for a nuclear weapons free world and taking steps to establish and implement some of these requirements.

A number of opportunities have arisen for States to advance nuclear abolition. These include UN Security Council Resolution 1540, the UN High Level Panel on Threats Challenges and Change, the UN Millennium plus five Summit, the NPT review process and the Southern Hemisphere and Adjacent Areas Nuclear Weapon Free Zone initiative. Other possible venues for progress include the Conference on Disarmament, a UN General Assembly initiated negotiating conference, an amendment to the NPT, and an independent “Ottawa” style process led by a NWS, nuclear-capable State, a State that has renounced nuclear weapons or a relevant group of States.

In addition NGO initiatives have helped build political will. This process is intensifying with the Emergency Campaign for the Abolition of Nuclear Weapons launched in 2003 by the Mayors of Hiroshima and Nagasaki under the global Mayors for Peace network. This will bring the support of over 600 mayors, including those of the capital cities of the NWS, for nuclear abolition to the 2005 NPT Review Conference.

Finally, considerable conceptual work has already begun on the legal, technical and political requirements for achieving and maintaining a nuclear weapons-free world, including the drafting and circulation of a Model Nuclear Weapons Convention. Such work can assist and guide any deliberative and negotiating processes that could be advanced in the near future.

2) Nuclear dangers

On 2 December 2004, UN Secretary-General Kofi Annan presented to the United Nations General Assembly the report from a high level panel of experts appointed to consider current threats and challenges to international security.[2] The report warned about “the erosion and possible collapse of the whole [Non-Proliferation] Treaty regime.” The report noted that “Almost 60 States currently operate or are constructing nuclear power or research reactors, and at least 40 possess the industrial and scientific infrastructure which would enable them, if they chose, to build nuclear weapons at relatively short notice if the legal and normative constraints of the Treaty regime no longer apply. We are approaching a point at which the erosion of the non–proliferation regime could become irreversible and result in a cascade of proliferation.”

Until recently the NPT had ensured that only a handful of States possessed nuclear weapons. Even then, the fact that nuclear weapons had not been used in wartime since 1945 was probably more a result of good luck than any inherent stability in nuclear deterrence doctrines. The Canberra Commission on the Elimination of Nuclear Weapons in 1996 concluded that “The proposition that nuclear weapons can be retained in perpetuity and never used - accidentally or by decision - defies credibility.”[3] This conclusion was reached when there were only a handful of NWS, none of which were in any serious dispute that threatened a nuclear war.

Since then, India and Pakistan have tested nuclear weapons, integrated them into their defence policies and come close to a full-scale war and possible nuclear exchange; North Korea has announced its withdrawal from the NPT and also that it was developing nuclear weapons; the development of uranium enrichment and other related technologies has made it much easier for countries, like Iran for example, to develop a nuclear weapons capability; a black market network of government officials, businesses and other agents (the Khan network) dealing in nuclear weapons related technology and materials has been discovered; the possibility of non-State groups such as Al Qaeda acquiring and using a nuclear device has become more real; and the Nuclear Weapon States, in particular the United States, have extended their nuclear doctrines to widen the scenarios and circumstances in which nuclear weapons would be threatened or used.

The US itself recognises the increased likelihood that nuclear weapons (and other weapons of mass destruction) would be used in a conflict: “ The possibility of a WMD exchange in a regional conflict has risen dramatically” noting also that “the loss of the stability inherent in a clearly bipolar world has increased the likelihood of a nuclear exchange by regional powers.”[4]

The UN High Level Panel on Threats, Challenges and Change noted that “that if a simple nuclear device were detonated in a major city, the number of deaths would range from tens of thousands to more than one million. The shock to international commerce, employment and travel would amount to at least one trillion dollars. Such an attack could have further, far-reaching implications for international security, democratic governance and civil rights.” The panel concluded therefore that “Stopping the proliferation of such weapons — and their potential use, by either State or non -State actors — must remain an urgent priority for collective security.”

3) Nuclear divide

In September 2003 US President George W Bush made a landmark speech urging all States to cooperate in preventing the proliferation of weapons of mass destruction, in which he said:

A second challenge we must confront together is the proliferation of weapons of mass destruction. Outlaw regimes that possess nuclear, chemical and biological weapons -- and the means to deliver them -- would be able to use blackmail and create chaos in entire regions. These weapons could be used by terrorists to bring sudden disaster and suffering on a scale we can scarcely imagine. The deadly combination of outlaw regimes and terror networks and weapons of mass murder is a peril that cannot be ignored or wished away. If such a danger is allowed to fully materialize, all words, all protests, will come too late. Nations of the world must have the wisdom and the will to stop grave threats before they arrive.[5]

President Bush called for a Security Council resolution requiring all countries to take action to prevent WMD proliferation. While the resolution was adopted unanimously, there was considerable criticism that the US and other NWS were increasingly pro-active regarding the proliferation of WMD while doing little to implement obligations to eliminate their own stockpiles. Ronaldo Mota Sardenberg, the UN ambassador for Brazil, for example, said that while Brazil supported the resolution, “limiting the resolution to the question of non-proliferation as the overriding threat was inadequate. At the same time, disarmament must be pursued in good faith. Without such a comprehensive approach, all efforts to make the world safer were bound to fall short.”[6]

Such criticism of the NWS is even more pronounced by the Non-Aligned Movement (NAM). Malaysia, NAM Chair, in its opening statement at the 2004 NPT preparatory committee meeting, did not address horizontal proliferation concerns in any detail, but instead called on States Parties to the NPT to focus attention on the policies of the NWS and the achievement of disarmament measures including a diminishing role for nuclear weapons in security doctrines, entry into force of the Comprehensive Test Ban Treaty, security assurances from NWS to non-NWS, convening of a UN Fourth Special Session on Disarmament and a phased program for the elimination of nuclear weapons. [7]

The growing divide between the key NWS, which are focusing on proliferation and counter-proliferation but not disarmament, and the NAM, which is focusing predominantly on the need for disarmament and paying little attention to proliferation, is threatening the non-proliferation regime. As former US President Jimmy Carter recently noted ““The five historic nuclear powers refuse to initiate or respect restraints on themselves while …raising heresy charges against those who want to join the sect. This is indeed an irrational approach.”[8]

The Non-Proliferation Treaty in particular is built on a basic agreement between the non-NWS not to acquire nuclear weapons and the NWS to achieve the elimination of their nuclear arsenals. If parties from either side renege on their obligations, parties from the other side are likely to follow suit.

This already appears to be happening. When North Korea announced its withdrawal from the NPT and its decision to resume a nuclear weapons programme in 2003, the stated reason was that this was in response to US violations of the NPT.[9] The growing dissatisfaction by other non-NWS with the NWS is not helped by the fact that the NWS – particularly the US and Russia - clearly appear to be in violation of their NPT obligations given that together they continue to collectively possess over 30,000 nuclear weapons, [10] have no current plans or negotiations to reduce these numbers further,[11] maintain thousands of nuclear weapons on high alert status, maintain security doctrines in which nuclear weapons continue to play a vital role, are extending the role of nuclear weapons from deterrence of nuclear weapons to responding to acquisition or use of WMD, and are developing new nuclear weapons.[12]

The New Agenda Coalition has noted that nuclear disarmament and nuclear non-proliferation are mutually reinforcing processes requiring urgent irreversible progress on both fronts. While it is undoubtedly true that nuclear disarmament and nuclear non-proliferation are mutually reinforcing processes, treating them as separate processes reinforces a false divide that could continue to make progress on either strand difficult. The NWS may make some token disarmament efforts, but continue to claim that non-proliferation concerns are more important, while the NAM may downplay counter-proliferation initiatives while placing much more emphasis on the need for nuclear disarmament.

It may therefore be more productive to adopt an abolition approach, which brings non-proliferation and disarmament into the same realm as two parts of the same process. Marian Hobbs, New Zealand Minister of Disarmament, in supporting this approach, notes that the divide between the NWS and the non-NWS “could be bridged, and progress made on both non-proliferation and disarmament fronts, by adopting an abolition framework, i.e. through advancing norms which further de-legitimise nuclear weapons regardless of who may possess or aspire to possess them, and further developing the mechanisms which prevent their acquisition and provide for their systematic and verified elimination.”[13]

4) Abolition as a bridge between non-proliferation and disarmament

Abolish: Formally end existence of (custom, institution). Oxford English Dictionary

The terms nuclear abolition and nuclear disarmament are sometimes used interchangeably. However, they are not the same. Nuclear disarmament is primarily a physical or technical process of dismantling and eliminating nuclear weapons. Nuclear abolition is primarily a normative process of prohibiting the development, acquisition, possession, transfer, use and threat of use of nuclear weapons, but which also includes the elimination of the weapons themselves.

When discussing about nuclear disarmament, the focus is primarily on the weapons currently possessed and on actions required by the NWS to reduce and eliminate their nuclear arsenals. For abolition, the focus is on the prohibition of nuclear weapons per se and relates to actions required by any State, person or other body regardless of whether or not they currently possess nuclear weapons.

Nuclear disarmament relates primarily to positive obligations, i.e. obligations to do something, in this case to eliminate current stockpiles. Nuclear abolition includes both positive obligations and negative obligations, i.e. obligations not to do something, in this case not to acquire, transfer, use or threaten to use nuclear weapons.

Nuclear abolition combines both the negative obligations of non-proliferation (i.e. not to acquire nuclear weapons) with the positive obligations of nuclear disarmament (i.e. to eliminate nuclear stockpiles). As such, nuclear abolition can be seen as the synthesis of the two competing approaches of non-proliferation and disarmament.[14]

The New Agenda Coalition is correct when it says that action on both non-proliferation and disarmament is necessary. But, as Hobbs notes “if disarmament and non-proliferation are seen as two separate processes, progress will be difficult. There will continue to be a competitive tug-of-war between the NWS on the one hand calling for a focus on non-proliferation and the NAM directing greater attention towards disarmament. An abolition approach avoids competition by shaping actions in ways that contribute to the gradual prohibition of nuclear weapons themselves and to both non-proliferation and disarmament.”

For example, a non-proliferation approach to fissile materials focuses on preventing the spread of uranium enrichment technology, preventing the transfer of fissile material and on ending production. A disarmament approach aims to secure current stockpiles of fissile materials so that they could not be used for new nuclear weapons or for maintaining current nuclear weapons beyond their current lifespan. A disarmament approach would possibly also focus on accounting and securing all fissile materials within existing weapons. An abolition approach would combine these two, focusing on controls of both production and stockpiles of fissile material.

Thus, the New Agenda Coalition has more recently talked about non-proliferation and disarmament as not two separate processes, but “as two sides of the same coin.”[16] That coin is nuclear abolition.

An abolition approach does not necessarily require concurrent and equal progress on both non-proliferation and disarmament initiatives or goals. Such a requirement could block progress. Rather an abolition approach looks for the disarmament benefits from non-proliferation initiatives and vice-versa, and envisages how further progress on abolition (through either disarmament or non-proliferation) could arise from the currently considered initiative.

On fissile materials, for example, it might be politically possible at a particular point in time to prohibit their production (a non-proliferation goal) but not to place current stockpiles under international control (a primarily disarmament goal as it would prevent NWS from maintaining their nuclear weapons beyond the current life of the pits). However, in order to prohibit production of fissile materials, an inventory of current stocks would be required. Such an inventory would be a vital component of any future controls on stockpiles.

While some of the disarmament benefits of non-proliferation measures are already recognized, and vice-versa, taking an abolition approach would highlight these more, help overcome the non-proliferation versus disarmament conflict which prevents some States supporting useful initiatives, and open up additional possibilities for progress (see Section 10 below).

An abolition approach would not, for example, conflict with current non-proliferation and counter-proliferation actions, such as the Proliferation Security Initiative, which are led primarily by the NWS but perceived by some non-NWS as discriminatory and illegitimate. Rather it would look for the contribution such efforts can make to abolition and the opportunities to further advance abolition. At the same time an abolition approach would increase the political pressure to ensure that such initiatives are legally consistent.[17]

An abolition approach does not necessarily require, at this stage, a timeframe for the complete elimination of nuclear weapons – something which is being sought by the Non-Aligned Movement, but to which it is difficult for the NWS to agree.[18] Rather, it would involve a commitment to make continued progress towards complete nuclear prohibition and elimination. This would, in essence, constitute an affirmation of the unequivocal commitment which all the NWS Parties to the NPT were able to accept at the 2000 NPT Review Conference, combined with some of the other agreed steps such as a diminishing role for nuclear weapons in security policies and irreversibility. Abolition would also entail steps to criminalize nuclear weapons acquisition and use as called for, for example, in UN Security Council Resolution 1540. The starting point for an abolition framework is thus close to that already agreed by the NWS on disarmament, and encompasses their concerns on non-proliferation. As such it may be an easier framework with which to engage the NWS than one which focuses purely on disarmament.

An abolition framework might also assist in the South Asian context. There is a big division between the States Parties to the NPT, which have called on India and Pakistan to accede to the NPT as non-NWS,[19] and India and Pakistan who maintain their right to possess nuclear weapons and adopt nuclear deterrence doctrines.[20]

India has indicated support for nuclear disarmament but only in a global context.[21] India’s decision to overtly test nuclear weapons in 1998 was professed to be in large part because of India’s inability to convince the NWS to achieve nuclear disarmament.[22] Thus India has followed an approach of ‘if you can’t beat them, join them’ and has adopted an advanced nuclear doctrine very similar to that of the NWS.[23] India is reluctant therefore to agree to any unilateral or even regional disarmament measures or any global measures that appear to discriminate in favour of the NWS (such as the Comprehensive Test Ban Treaty).

On the other hand India might be open to taking abolition measures which could strengthen the global norm against nuclear weapons even if the NWS are not yet prepared to take such measures. One example of this was the 1996 International Court of Justice (ICJ) advisory opinion in which India was the only State with nuclear capability that argued for the illegality of the threat or use of nuclear weapons and indeed for the illegality of possession.[24] While there appear to be differences between the political parties on the legal status of nuclear weapons,[25] this willingness to promote the illegality of nuclear weapons provides an opportunity to encourage India to embrace nuclear abolition and take further steps to strengthen the norm against nuclear weapons.

5) Abolition still utopian? Developments making abolition more feasible

In 1996 the International Court of Justice (ICJ) concluded unanimously 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.” Mohammed Bedjaoui, ICJ President at that time, explained “that the goal [of nuclear disarmament] is no longer utopian and that it is the duty of all to seek to attain it more actively than ever.”

Is such sentiment wishful thinking, or has the abolition of nuclear weapons come within humanity’s reach? The question of whether idealistic goals are achievable is difficult to answer, as results often follow the self-fulfilling prophecy rule, i.e. if people believe something is possible they will act to ensure it becomes so, where-as if people believe it is impossible they will not be motivated to achieve it. On the other hand, there are numerous examples of idealistic goals that have been achieved when, in the beginning, only a few people thought it possible – but those few acted with conviction, faith and effectiveness. Examples include the abolition of slavery, emancipation of women, peaceful end of the Cold War, adoption of a Landmines Treaty, establishment of an International Criminal Court and the rejection of nuclear weapons by every country in the world except nine through accession to the NPT as non-NWS.

The Canberra Commission on the Elimination of Nuclear Weapons[26] in 1996 affirmed that there were no inherent obstacles preventing the achievement of nuclear abolition except a current lack of political will. In other words, if key States decide they want to achieve nuclear abolition they could make it happen.

There are genuine security concerns – and some spurious justifications - that have led States to develop nuclear weapons and doctrines. Some of these concerns may no longer be relevant or may have changed. For example the initial rationale for the US to develop nuclear weapons was to counter Nazi Germany’s suspected nuclear weapons programme. Current and possible future security concerns that give rise to nuclear policies must be addressed if nuclear weapons are to be abolished. What appears to have changed is that technical capabilities, legal norms, international mechanisms and political conditions have developed to enable these security concerns to be addressed without possession of nuclear weapons, and to enable the global renunciation of nuclear weapons and their verified elimination to proceed.

a) Technical capabilities

A key concern creating resistance by States to join disarmament agreements is whether or not it will be possible to verify whether other States are keeping to their obligations. This is probably more important with nuclear weapons than most other weapons. If most States comply with nuclear disarmament obligations and eliminate their stockpiles, but one State cheats and retains a nuclear capability, there are concerns that that State could gain unmatched political power through nuclear blackmail. While this fear is probably overstated (see international mechanisms below), the implementation of verification measures to ensure that all States are keeping to their obligations would give States to enough confidence to join an abolition regime. As VERTIC Director Trevor Findlay notes:

“The verification and compliance regime for a nuclear weapon-free world will need to be more effective than any disarmament arrangement hitherto envisaged. One hundred per cent verification of compliance with any international arms agreement is highly improbable. In the case of nuclear disarmament, however, the security stakes will be so high that states will not agree to disarm and to disavow future acquisition of nuclear weapons unless verification reduces to a minimum the risk of non-compliance”[27]

Nuclear weapons are probably the easiest of any weapon to track and verify, making nuclear disarmament easier to verify than conventional disarmament, or the prohibition of chemical weapons, biological weapons or landmines. The fact that a nuclear warhead requires highly enriched uranium or plutonium – two very difficult materials to produce – increases the verifiability of nuclear disarmament. On the other hand, considerable quantities of fissile materials have already been produced and nuclear weapons manufactured by the NWS without adequate verification and accounting.

On the positive side, a range of verification procedures and technologies have been developed and considerable experience gained through verification of nuclear arms control treaties including the NPT (through the International Atomic Energy Agency), Intermediate Forces Treaty, START, Comprehensive Test Ban Treaty (through the Comprehensive Test Ban Treaty Organisation), United Nations Special Commission on Iraq (UNSCOM) and the United Nations Monitoring, Verification and Implementation Commission (UNMOVIC). Verification of nuclear abolition can build on these and develop further technological and procedural measures as the phases for nuclear disarmament are implemented.

Findlay therefore concludes that “An impressive and reliable verification system can, even on the basis of current knowledge, be constructed to verify with high, although not exactly quantifiable, certainty that all parties to a universal nuclear disarmament treaty are complying with their obligations.”[28]

Moreover, Patricia Lewis, Director of the UN Institute for Disarmament Research (UNIDIR), argues that the act of checking compliance not only provides information, but also creates interaction between military personnel of previously hostile countries. There will be opportunities to assess capabilities with much greater confidence, building trust between States as they move to a situation in which they cannot annihilate each other. Indeed, she predicts that the confidence-building aspects could eventually be verification’s single and most important role: ‘We could move from a position of the threat of nuclear war as security to one of verification as security.’[29]

b) Legal norms

A number of developments over the past decade have strengthened the legal norms against nuclear weapons at international, State and individual levels. These norms contribute to the development of a framework for the abolition of nuclear weapons.

In 1996 the ICJ considered existing international law applicable to nuclear weapons and concluded that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.” While the Court could not determine whether or not there might possibly be an exception to the illegality of threat or use in an extreme circumstance involving the very survival of a State, the ICJ’s decision signified a major shift in the prevailing legal status of nuclear weapons from one where the threat or use of nuclear weapons in any particular situation was considered legal unless proven otherwise, to one where any particular threat or use of nuclear weapons would be illegal unless proven otherwise. In addition, the ICJ affirmed a legal obligation to not only pursue complete nuclear disarmament but to achieve it. Mohammed Bedjaoui explained that this obligation had acquired the status of customary law, meaning that it applies universally regardless of whether or not a State has accepted such an obligation under the NPT or other agreement.

This normative development provides legal weight to those advancing both the negative obligations (the obligation not to threaten or use nuclear weapons) and positive obligations (the obligation to achieve nuclear disarmament) of a nuclear abolition framework.

While the NWS have been reluctant to accept the normative developments affirmed by the ICJ, the US and UK in particular have been promoting the development of other legal norms relating to nuclear weapons which contribute to an abolition framework. These include the development of a customary norm against proliferation and the acquisition of nuclear weapons by State and non-State actors.

In 1998, for example, at the recommendation of the United States, the Security Council adopted resolution 1172[30] on the nuclear tests by India and Pakistan which affirmed “that the proliferation of all weapons of mass destruction constitutes a threat to international peace and security.” The fact that India and Pakistan had not entered into any treaty based obligations proscribing the testing or production of nuclear weapons indicates that the Security Council authorisation derives from a developing customary norm against nuclear testing and proliferation. While the resolution does not directly proscribe nuclear testing or production by the NWS,[31] the strengthened norm against nuclear testing and production cannot fail to impact on the obligations of the NWS, a fact partially recognized in the preamble to the resolution which reaffirms the obligations of the NWS under the NPT to achieve nuclear disarmament.[32]

More recently the Security Council adopted resolution 1540[33] on the non-proliferation of weapons of mass destruction. Resolution 1540 goes further than resolution 1172 by a) requiring all States to take measures to prevent the proliferation of nuclear, chemical and biological weapons, and b) introducing an element of individual, as well as State, responsibility by requiring States to take actions to prevent proliferation activities of non-State actors.

While resolution 1540 refers to relevant non-proliferation and disarmament treaties, the Security Council derives primary authorisation for requiring State action, not from treaties, but from Chapter VII of the UN Charter, [34] affirming “that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security,” and also affirming “the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts.”

UN Security Council Resolution 1540 thus further advances a customary legal norm against nuclear weapons, including a customary norm applicable to both State and non-State actions. While the resolution is directed primarily at proliferation and not at disarmament, it opens up a possible wider application of the norm to the nuclear weapons policies and practices of the NWS – a fact recognised minimally in the resolution when it encourages “all Member States to implement fully the disarmament treaties and agreements to which they are party.” In its report to the UN Security Council 1540 Committee on implementation of operative paragraph 1, New Zealand made the application of this norm to disarmament more explicit by stating that:

“New Zealand’s strong and consistent policy is that all weapons of mass destruction (WMD) should be eliminated, and that this elimination should be verified and enforced through robust legally binding multilateral disarmament instruments. New Zealand provides no support whatsoever to any entity – whether State or non-State actor – attempting to develop, acquire, manufacture, possess, transport, transfer or use WMD and their means of delivery.”[35]

c) International mechanisms

In order to relinquish nuclear weapons, governments that have relied on such weapons for their security will require either a changed perception (see rationale below), a change in the political environment that gave rise to nuclear policies (see political conditions below), or the development of alternative international mechanisms which can address their security concerns.

Nuclear doctrines have been developed in particular to deter or respond to a) a nuclear attack, b) attacks with other weapons of mass destruction, or c) acts of aggression with superior conventional forces that could threaten the survival of the State. Thus, the development of international security mechanisms which can address these situations could help to remove any perceived security requirement for nuclear weapons.

There has been a continual development and strengthening of such international security mechanisms particularly in the latter part of the 20th Century. These include:

i) a re-vitalised United Nations Security Council which has responded to aggression and assisted States to be liberated from occupying forces (for example Iraq’s invasion of Kuwait and Indonesia’s occupation of East Timor)

ii) a more effective International Court of Justice which has prevented or ended armed conflict by resolving territorial disputes, e.g. between Libya and Chad,[36] and addressed other matters relating to international security, e.g. nuclear testing in the Pacific.[37]

iii) The development of effective disarmament, verification and enforcement mechanisms through the International Atomic Energy Agency, United Nations Security Council (UNSCOM and UNMOVIC), Comprehensive Test Ban Treaty Organisation, Organisation for the Prohibition of Chemical Weapons and other treaty organisations. These mechanisms demonstrate the feasibility of verifying and enforcing nuclear disarmament (see also section 11: legal, technical and political requirements for nuclear disarmament)

iv) Establishment of an International Criminal Court and the development of a norm of universal jurisdiction for war crimes and crimes against humanity which enables legal action to be taken against violators regardless of their position and thus acts to dissuade and prevent such criminal acts.

v) Improvement in the conflict resolution and mediation services of the United Nations Secretariat[38] and independent organisations such as the Carter Center.[39]

These international mechanisms are by no means perfect – but perfection is not required to adopt an abolition approach. Once abolition is embraced and countries begin to travel down the abolition path, current mechanisms can be strengthened and improved, and new ones developed, in order to build confidence in a nuclear weapons-free world. In addition, in accomplishing steps towards abolition, the technical capabilities, political legitimacy and nuclear infrastructures that currently support nuclear doctrines will be diminished. This will, in itself, generate a different security environment greatly reducing the threat of ‘breakout’ or non-compliance and further reducing any rationale for nuclear options to respond to such threats. In this way, nuclear abolition measures act like a positive feedback loop,[40] opening up the possibilities for further progress towards complete abolition.

d) Political conditions

In the 20th Century nuclear weapons may have seemed for some governments a logical development from the requirement of the State to protect its territory and citizenry from invasion by another country. In many cases, war was still seen in Clausewitzian terms as an extension of politics by other means, requiring superior force to a possible aggressor to deter them from attacking or defeat them if they did attack.

While there are inherent flaws in nuclear deterrent doctrines (see Section 6 below), the fear of invasion and of nuclear attack contributed to the development of nuclear weapons programmes despite these flaws.

However, political conditions have changed internationally and will continue to change, making the concept of protection of territory and citizenry with nuclear weapons anachronistic. In short, the world is changing from one of discrete nation States competing against each other for the control of territory and physical resources to a much more integrated world where wealth is not so tied to territorial boundaries.

While there is still competition for resources that leads to armed conflict, [41] the increasing trend for corporations to become trans-national and the growth of international trade provide much stronger disincentives to risk long-term damage to territory or resources of a State with nuclear weapons. For example, the destruction from any use of nuclear weapons – including the residual radiation - would prevent a corporation from being able to establish or maintain economic activities within hundreds or even thousands of kilometers of the targeted area.

In addition, the information age is generating a globalisation of information and consciousness which increases awareness and empathy across borders making a nation-based enemy image more difficult to maintain.

The idea therefore of using nuclear weapons against citizens of another country, which might have been celebrated as a sound form of defence in the mid 20th Century, is increasingly questioned.

Fifty years ago Buckminster Fuller compared the earth to a spaceship – an integrated system floating in space.[42] The idea of the inhabitants of one part of the spaceship developing nuclear weapons to destroy another part of the spaceship appeared ludicrous to Fuller. While this concept was novel in 1950, globalisation has made this an even more appropriate analogy and the irrationality and incongruence of using or threatening to use nuclear weapons has become more obvious.

e) Public support

In 1995, over 100 non-governmental organisations monitoring the NPT Review and Extension Conference formed an international network and adopted a statement calling for negotiations on a treaty to abolish nuclear weapons. By 2000 this network had grown to over 2000 NGOs and public opinion polls indicated an overwhelming majority of citizens, including in the NWS, supported the achievement of a nuclear weapons convention.[43]

Frustrated at the lack of action at national and international level, the Mayors of Hiroshima and Nagasaki in 2003 announced an emergency campaign for the abolition of nuclear weapons[44] and invited mayors from around the world to join. Mayors, who are responsible for the security and well being of the citizens in their cities, are well aware that any use of nuclear weapons would be a catastrophe, and the only way to prevent that is to abolish the weapons. Thus in two years over 600 mayors – including mayors from capital cities of the NWS - have joined the Mayors for Peace abolition campaign.

6) Beyond nuclear deterrence: alternatives to nuclear weapons

Deterrence was our shield and, by extension, our sword. The nuclear priesthood extolled its virtues and bowed to its demands. Allies yielded to its dictates, even while decrying its risks and costs. We brandished it at our enemies and presumed they embraced its suicidal corollary of mutually assured destruction. We ignored, discounted, or dismissed its flaws and even today we cling to the belief that it remains relevant in a world whose security architecture has been transformed[45] .

General Lee Butler USAF, Commander in Chief, US Strategic Command 1992-94

In 1996, sixty retired generals and admirals from 17 countries, including all the NWS, released a statement calling for the abolition of nuclear weapons. They noted that “in the post-Cold War security environment, the most commonly postulated nuclear threats are not susceptible to deterrence or are simply not credible” and that “that the continuing existence of nuclear weapons in the armories of nuclear powers, and the ever present threat of acquisition of these weapons by others, constitute a peril to global peace and security and to the safety and survival of the people we are dedicated to protect.” Regardless of whether or not there was a genuine rationale for nuclear weapons during the Cold War, these military leaders noted that no such justification existed post-Cold War and that the only path to security was one of abolition.[46]

The NWS accept that they have an obligation to negotiate for nuclear disarmament. However, they argue that it is not possible to achieve such a goal at the moment as nuclear weapons are still required to address specific security concerns. For example, US doctrine holds that “US nuclear forces help deter the use of weapons of mass destruction (WMD) and serve as a hedge against the emergence of an overwhelming conventional threat. Nuclear forces deter attacks against the American homeland and contribute to theater deterrence as instruments of national power. The US nuclear umbrella protects many allies as well and helps assure their security.”[47]

There are many flaws in such nuclear doctrine which can be summarized as:

Robert Green, a former British Royal Navy Commander with nuclear weapon experience, has argued that during the Cold War “The ultimate irony of nuclear deterrence may be the way in which it undercut much of the political stability its proponents claim it creates. The arms build-ups, threatening military deployments, and the confrontational rhetoric that characterized the strategy of deterrence effectively obscured deep-seated mutual fears of war. This reckless behaviour was self-defeating provoking precisely the response it was designed to prevent.[49]

Despite the flaws in nuclear deterrence, the doctrine has been resolutely maintained even after the Cold War had ended. General Lee Butler noted “I was caught up in the holy war, inured to its costs and consequences, trusting in the assertions of the nuclear priesthood and the wisdom of my seniors. Emptied of any rational content, deterrence was reduced to a cheap carnival elixir, a rhetorical sleight of hand, deceptively packaged and oversold.”

However, the cracks in the doctrine are beginning to become better appreciated and more universally expressed by civil, military and religious leaders around the world including in the NWS. Examples include:

In particular, there is growing recognition that not only is nuclear deterrence flawed and counter-productive, but that the security concerns it is supposed to address can be met by alternate means, whether that is by conventional military or political means, including through the use of collaborative and cooperative security mechanisms (see Section 5 above).

The primary rationale for nuclear weapons – i.e. to deter a nuclear attack from another State - would all but disappear if nuclear weapons are abolished. The only exceptions would be if a State ‘breaks out’ of the nuclear abolition regime and openly develops nuclear weapons or if it is not possible to be completely certain that all nuclear weapons have been eliminated and there is a threat of use of a clandestine nuclear weapon by a State or non-State actor. However, under a nuclear abolition regime, both these situations can be effectively addressed in a number of ways without having to revert to nuclear deterrence. These include:

The experience of UNSCOM and UNMOVIC demonstrate that a combination of these approaches can successfully disarm and destroy the clandestine nuclear weapons programs of even a belligerent State.[54] The Model Nuclear Weapons Convention (see Section 11 below) considers the development of additional measures to deal with threats of breakout or non-compliance with a nuclear abolition regime including the possible threat of nuclear weapons use.

7) Terrorism and nuclear weapons

On 11 September 2001, terrorist attacks on the World Trade Center and the Pentagon constituted a successful direct assault on the financial stability of the US and, by implication, the world. This destroyed the sense of held by the US – the world’s first and pre-eminent nuclear weapons power. Nuclear deterrence, the cornerstone of US security policy, was supposed to deter any power from attacking the USA or its allies: but it failed completely in preventing these attacks.

a) Using nuclear weapons to deter or destroy terrorists

The Pentagon, in an attempt to restore some security value to nuclear weapons, recommended that their use be an option in the ensuing war against terrorism. [55] This was supported by some members of the US Congress. However, any such use would likely be extremely counter-productive. It would inevitably cause unjustifiaable civilian casualties and generate considerable anti-US sentiment, possibly provoking the use of weapons of mass destruction in reprisal against the US and its allies. Besides, use of nuclear weapons would be ineffective against the infrastructure of terrorist organisations, which do not have their personnel or military equipment concentrated in geographical locations that can be destroyed by such indiscriminate explosive devices. Rather they are spread out in cells interspersed in urban and rural locations around the world. Many of the terrorists in the attack against the World Trade Center and the Pentagon, for example, were living and operating in cities in the US.

Moreover, terrorists are often prompted by a psychology of “heroic” response to perceived aggression, including the acceptance of personal death in the battle against evil. A threat of nuclear weapons against them would likely increase their perception of the evil of the state they are fighting against, and give them justification for responding in kind.

b) Terrorists acquiring and using nuclear weapons

In putting the terrorist attacks on 11 September 2001 into perspective Jayantha Dhanapala, the United Nations Under-Secretary-General for Disarmament, has warned, "We need to be aware of the fact that this situation could have been much worse than it has been - consider for example if weapons of mass destruction were used by these terrorists.”[ 56] Gary Milhollin, head of the Washington-based Wisconsin Project on Nuclear Arms Control, foresees “a definite risk" of a nuclear attack by terrorists in the next decade - say by Sept. 11, 2011.[57] The International Physicians for the Prevention of Nuclear War (IPPNW) has concluded that “Unless radical steps are taken urgently, it will not be a question of whether terrorists can acquire or build a nuclear device, but when.”[ 58]

The acquisition and use of nuclear weapons by a terrorist organisation is indeed becoming more likely, by theft or construction of a nuclear explosive device. Terrorists may steal a nuclear bomb, as the security of such weapons is questionable. In Russia there is particular concern over certain ambiguities regarding suitcase-sized “mini-nukes”, though even larger nuclear weapons, such as those possessed by Pakistan, could be stolen with a large truck.[59]

Acquiring the necessary fissile material and constructing a nuclear explosive device would be complicated though certainly possible for a sophisticated terrorist group. Plutonium oxide, which can be acquired from plants reprocessing spent nuclear-power fuel elements, or by separating the plutonium oxide out from Mixed Oxide (MOX) fuel, could be used as a fissile material for a nuclear weapon of the implosion type used on Nagasaki. Though highly enriched uranium (HEU) is more difficult to acquire than plutonium, the gun-type nuclear explosion device that could be used with HEU, as was used in Hiroshima, is the simplest of such devices to design and construct. Even if such a nuclear explosive device failed to create a significant nuclear explosion the dispersion of radioactive material would act like a radiological weapon.

c) Prevention through abolition

The clandestine nature of non-State actor networks, combined with recent evidence of abuse by States of proliferation control mechanisms, has exposed the limitations of such regimes. A more effective response would be to adopt an abolition approach which implements comprehensive control mechanisms and prohibition norms at societal, national and international levels.

The Security Council, in adopting UN Security Council resolution 1540, expressed concern about “the threat of illicit trafficking in nuclear, chemical or biological weapons and their means of delivery and related materials” and recognized “the need to enhance coordination of efforts on national, sub-regional, regional and international levels in order to strengthen a global response to this serious challenge and threat to international security.” While an important step towards the prevention of nuclear terrorism, the Security Council, which is primarily an enforcement body, is not designed to develop international control mechanisms which are usually negotiated and adopted through treaties. Thus, concluding the negotiations on the Draft Convention on Nuclear Terrorism could provide a more comprehensive and universally accepted set of mechanisms to prevent nuclear terrorism.

However, even a Convention on Nuclear Terrorism, combined with UN Security Council action and robust State implementation measures, will remain limited and only minimally effective so long as the prohibitions and controls are restricted to non-proliferation and do not extend to complete nuclear disarmament. As long as NWS maintain nuclear weapons this the temptation and potential for non-State actors to steal or otherwise acquire a nuclear device. So long as NWS maintain fissile material stocks to refurbish their nuclear stockpiles or construct new nuclear warheads, there is the potential for non-State actors to acquire fissile materials with which to make a nuclear weapon.

Jayantha Dhanapala, when serving as UN Under-Secretary-General of the United Nations, noted that “We need to eliminate weapons of mass destruction because they could fall into the hands of terrorists…We don't want to give terrorists more tools than they have at the moment." Other authorities agree. IPPNW calls for the elimination of nuclear weapons under a negotiated Nuclear Weapons Convention that would establish stringent international controls on fissile materials to prevent it from getting into the hands of terrorists.[60] These controls would go beyond physical protection and State-based policing. An abolition regime would involve the development of a societal norm against nuclear weapons and societal verification including scientific, industrial, academic and NGO communities. Sir Joseph Rotbalt, an initial member of the Manhattan project and founder of Pugwash, believes that such societal verification is the only way to be able to prevent clandestine nuclear weapons activity.

8) How States can advance abolition

Non-NWS are often hesitant to promote nuclear abolition because of the perception that little can be achieved while key NWS are unwilling to abandon nuclear deterrence doctrine and move towards nuclear disarmament. Such a defeatist approach fails to recognise that considerable progress is possible despite the resistance of NWS and some of their allies. In particular, progress can be made in building political will, strengthening legal norms against nuclear weapons, considering the requirements for a nuclear-weapons free world and taking steps to establish and implement some of these requirements.

a) Building political will

As noted earlier, the Canberra Commission on the Elimination of Nuclear Weapons concluded that the achievement of nuclear abolition requires the building of sufficient political will to abandon nuclear deterrence and embrace abolition. The potential for this has been demonstrated by a number of States willingly giving up nuclear weapons programmes (e.g. Brazil, Argentina, South Africa, Ukraine, Belarus, Kazakhstan) or adherence to a nuclear alliance (New Zealand) following the development of political will to do so. In some cases political will was primarily generated domestically (New Zealand), in others it was primarily generated internationally (Ukraine, Belarus and Kazakhstan), while in some it was a mixture of both (South Africa, Brazil, Argentina).

States can assist in building political will through promotion of abolition in international for a and bilateral relations, and through support for international non-governmental organisations advocating abolition.

b) Strengthening legal norms against nuclear weapons

Legal norms are very influential in State behaviour. In most cases, States adhere to international law for a number of reasons including principle,[61] practicality, [62] reciprocity,[63] national image[64] and the possibility of repercussions for violating the law.[65]

The NWS claim, and demonstrate, adherence to the law. The United States, for example, has incorporated the humanitarian rules of warfare into its military manuals which direct military operations, and there are cases whereby violators of these laws have been held accountable. The US acknowledges that such law applies to nuclear weapons and thus restricts their possible use,[66 ] but argues that the use of nuclear weapons is not categorically prohibited[67] and would therefore be legal in certain circumstances.

The 1996 ICJ Advisory Opinion was important in strengthening the legal norm against nuclear weapons. However, the NWS have adopted a minimalist and somewhat incorrect interpretation of the Court’s decision,[68] thus limiting its impact on their own policies. Non-NWS could further strengthen the legal norm against nuclear weapons through domestic abolition measures and application of the ICJ’s conclusions in regional and international fora (see Section 9 below), thereby increasing the legal pressure on NWS to move towards abolition.

c) Considering the requirements for a nuclear weapons free world

In order to build political will it is helpful to demonstrate that nuclear abolition is possible by exploring the legal, political and technical systems that would establish and maintain a nuclear weapons-free world. Such an approach can help move the debate with the NWS from confrontation over whether they should abandon nuclear deterrence to a collaborative exploration of how it would be feasible to replace nuclear deterrence with abolition and alternative security mechanisms. Useful tools in this exploration process include the draft working paper for the 2005 NPT Review Conference released by Malaysia (see Section 9) and the Model Nuclear Weapons Convention (See Section 11).

d) Taking steps to establish and implement some of the requirements for a nuclear weapons free world

In the late 1980s and early 1990s, a number of countries including Mexico, Norway, New Zealand and Sweden, began developing the technical capabilities and international communication sharing networks to monitor nuclear tests worldwide. They formed an ad hoc group in Geneva to further develop verification capabilities that would be required for a Comprehensive Test Ban Treaty, even though the NWS were not yet prepared to start negotiations. This advance work helped demonstrate the feasibility of verification and thus overcome one of the blocks to the negotiations. It also meant that the CTBTO was able to establish a global nuclear testing verification regime much more quickly than if it had had to start from scratch.

States could take additional steps to establish and implement some of the requirements for a nuclear weapons-free world even before the NWS are ready to commence nuclear abolition negotiations. The most obvious area is in the further verification measures required, and here some of the NWS might be willing to participate. The UK, for example, is conducting a study on the requirements for destruction of their nuclear weapons under a nuclear weapons free regime.[69]

9) Current political opportunities

There are a number of current political opportunities for advancing abolition internationally. These include implementation of UN Security Council resolution 1540, the UN High Level Panel on Threats Challenges and Change, the NPT review process and the Southern Hemisphere and Adjacent Areas Nuclear Weapon Free Zone initiative. Action to promote abolition could be taken concurrently using any or all of these opportunities.

a) Security Council Resolution 1540.

Security Council Resolution 1540 provides States with opportunities to advance the norm of abolition through their own domestic implementation measures and through international advocacy.

i) Domestic measures

In 1987 New Zealand adopted legislation[70] which prohibited the production, acquisition, transfer, stationing, testing, threat or use of nuclear weapons within its territory, established criminal responsibility for citizens and officials conducting such activities within New Zealand and extended this to New Zealand officials conducting such acts anywhere in the world (limited extra-territoriality). Such legislation was able to be adopted within New Zealand’s domestic jurisdiction regardless of the status of nuclear weapons under international law. Even so, at the time it was considered a challenge to nuclear deterrence.

Since then, Mongolia, Austria and the Philippines have declared their territories nuclear weapons-free. If a significant number of other countries adopted similar legislation it would help advance the nuclear abolition norm.

In addition, in light of the 1996 ICJ advisory opinion on nuclear weapons and the 2004 adoption of Resolution1540, it is now possible to adopt even more robust legislation encompassing full extra-territoriality (i.e. applicable to both officials - State actors - and citizens - non-State actors - undertaking such prohibited activities anywhere in the world) and universal jurisdiction (i.e. applicable to any person regardless of whether they are a citizen or resident of the State adopting the legislation).

The ICJ confirmed that the threat or use of nuclear weapons was generally contrary to international law. Thus nuclear acts would be illegal whether carried out within the State adopting the legislation or anywhere else in the world. UNSC Resolution 1540 requires States to take action against nuclear proliferators regardless of their citizenship or residency. This affirms that the norm of universal jurisdiction - which is already recognized with respect to crimes against humanity, war crimes, slavery and torture - is applicable to nuclear weapons.

If New Zealand and other States adopted legislation which incorporated complete extra-territorial jurisdiction and universal jurisdiction for any nuclear weapons activities, the global norm for abolition would be significantly strengthened.

Extra-territoriality, and to a lesser extent universal jurisdiction, are already features of domestic legislation in many countries with respect to the prohibition of chemical weapons.

The US Chemical Weapons Convention Implementation Act of 1998, for example, makes it an offence for any US national to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; regardless of whether that act occurs within the US or outside the US (extra-territoriality). The Act also gives jurisdiction to the US for any such acts committed against US nationals by anyone regardless of nationality or location (a limited form of universal jurisdiction).[71]

ii) International advocacy

Under the resolution, the Security Council established a Committee of the Security Council[72] ,consisting of all Council members, and called on all States to present reports on steps they had taken or intended to take to implement the resolution, the first report being due by the end of October 2004. This provides an opportunity for States to report on both domestic steps they are taking, and international steps which they believe should be taken collectively to implement the resolution – particularly those steps to achieve abolition.

New Zealand, for example, opened its first report by stating that “all weapons of mass destruction should be eliminated and that this elimination should be verified through robust legally binding multilateral disarmament instruments.” New Zealand went on to say that “the most effective non-proliferation moves we could make collectively would be to ensure and enhance compliance with the NPT in all its aspects including nuclear disarmament.” [73]

b) UN High Level Panel on Threats, Challenges and Change and the UN Millennium Plus Five Summit

As noted above, the UN High Level Panel on Threats, Challenges and Change established by UN Secretary-General Kofi Annan concluded: “Stopping the proliferation of such [nuclear] weapons — and their potential use, by either State or non -State actors — must remain an urgent priority for collective security.” The panel thus calls for “negotiations towards disarmament.” The conclusions and recommendations of the panel can be used to support States which are advocating nuclear abolition.

However, a more significant opportunity will be provided by the UN Millennium Follow-up Summit of Heads of State and Leaders due to take place in September 2005. UN Secretary-General Kofi Annan has announced that he will present the report of the UN High Level Panel on Threats, Challenges and Change to the 2005 Summit.[74] States can use this opportunity to promote abolition both informally and formally at the highest level of government.

c) NPT review process.

As noted above (Section 3) the Non-Proliferation Treaty is built on a basic agreement between the non-NWS not to acquire nuclear weapons and the NWS to achieve the elimination of their arsenals. The strengthened review process provides an opportunity to advance initiatives relating to both nuclear non-proliferation and disarmament. There are varying tactics for different proposals: some are introduced with the aim of reaching agreement in the short term, some are introduced in order to set goals for longer term agreement while others are designed to encourage action that does not necessarily require agreement by all States Parties. Varying proposals relating to abolition and fitting each of the categories have been introduced. These include, but are not limited to:

i) practical steps for implementation of Article VI agreed at the 2000 NPT Review Conference

ii) verification proposals submitted by the United Kingdom[ 75]

iii) proposals on compliance submitted by Germany[76]

iv) nuclear disarmament recommendations submitted by the New Agenda Coalition[77]

v) proposals submitted by Costa Rica and Malaysia on implementation of the International Court of Justice advisory opinion on the legality of the threat or use of nuclear weapons[78]

In October 2004, Malaysia released a draft working paper entitled Legal, technical and political elements required for the establishment and maintenance of a nuclear weapons-free-world.[79] The working paper calls for negotiations which would culminate in the abolition of nuclear weapons through a convention or package of agreements. In addition, the working paper proposes measures to support abolition which could be considered and developed prior to, or concurrent with, negotiations. Agreement by all States Parties is not required to commence work on these measures. The proposals address both non-proliferation and disarmament, and as such provide opportunities for bridging the non-proliferation/disarmament divide.

In addition, the paper provides a non-discriminatory way to engage States not Parties to the NPT in the nuclear abolition process thus offering further possibilities for progress on both non-proliferation and disarmament goals.

States Parties to the NPT can thus use the opportunity provided by the Malaysian draft to advance and advocate for progress on legal, technical and political elements for the abolition of nuclear weapons.

d) Southern Hemisphere and Adjacent Areas Nuclear Weapon Free Zone initiative.

Since 1996, the United Nations General Assembly has annually adopted a resolution, introduced by Brazil and co-sponsored by New Zealand, which calls upon States Parties to the regional Nuclear Weapon Free Zones (NWFZs) to explore the possibility of creating a consolidated Nuclear Weapon Free Southern Hemisphere and Adjacent Areas (NWFSH).

The resolution indicates that such a consolidation would not be by negotiation of a new comprehensive treaty, but rather through increasing cooperation between the zones, which would include holding a conference of States Parties in order to consider common action to further nuclear disarmament goals.

In April 2005, Mexico plans to host a conference of States Parties to the NWFZ “for the purpose of strengthening the nuclear-weapon-free-zone regime and to contribute to the disarmament and nuclear non-proliferation processes and in particular to analyze ways of cooperating that can help to achieve the universal goal of a nuclear-weapon-free world.” [80]

This new forum for NWFZ States will provide a politically powerful voice advocating nuclear abolition. The NWFZs cover over half the countries in the world, and the collective voice of the States Parties will derive credibility from the fact that all these countries have demonstrated their commitment to nuclear abolition by joining a NWFZ.

The draft declaration being prepared for the conference “expresses the need to move toward the priority objective of nuclear disarmament and achieve the total elimination and prohibition of nuclear weapons. The document also states that reaching the objective of permanently eliminating and prohibiting nuclear weapons requires firm political will from all States particularly those States that possess nuclear weapons.”[81] If promoted effectively, this declaration could add considerable weight to the abolition campaign.

Moreover, bringing together the NWFZ States Parties creates a further opportunity to strengthen the norms against nuclear weapons and launch additional abolition initiatives.

There are a number of ways that this could occur:

i) Strengthening existing NWFZs

The four regional NWFZs – Latin America, Pacific, South East Asia and Africa – are similar in some respects but differ in others. For example, all the regional NWFZ treaties prohibit member States from possessing nuclear weapons, but generally allow the transit of nuclear-armed vessels through the zones. The Treaty of Tlatelolco, however, prohibits the deployment of nuclear weapons in the territorial waters of member States. The Rarotonga Treaty prohibits the dumping of nuclear waste in the zone. The Treaty of Bangkok prohibits any threat or use of nuclear weapons within the Exclusive Economic Zones (EEZs) of member States. The Treaty of Pelindaba prohibits attacks on nuclear facilities within the zone.

The legal norm against nuclear weapons could be strengthened if all of the zones adopted the Latin American provision of prohibiting deployment through the territorial waters, and/or the South East Asian provision of prohibiting the threat or use of nuclear weapons within the EEZs. While the NWS might refuse to accept such provisions, individual States could adopt national legislation, like that of New Zealand, which prohibits the transit of nuclear weapons through its waters.[82]

The norm against nuclear weapons could be strengthened further if the NWS were collectively requested by the NWFZ State Parties to honour their rights and desires to assure the total absence of nuclear weapons in the regions covered by the treaties, and thus to refrain from introducing or transiting nuclear weapons into or through these regions. As the regions covered by the treaties include the international waters of the South Pacific and some of the North Pacific and Atlantic, this would effectively be calling on the NWS to cease transit of their nuclear armed vessels through large portions of the oceans.

The US, UK and France, concerned that this is one of the aims of the Southern Hemisphere NWFZ, have refused to support the UNGA resolution, and have argued that any attempt to proscribe transit of nuclear-armed vessels would be in contradiction to the rights, affirmed in the UN Convention on the Law of the Sea, of freedom of navigation through High Seas and innocent passage through territorial waters. However, in light of the 1996 ICJ advisory opinion confirming the general illegality of the threat or use of nuclear weapons, there is some legal opinion that the current ocean deployment of nuclear weapons is illegal and could thus be prohibited. Judge Christopher Weeramantry, a former ICJ Vice-President, for example, argues that:

Assuming that nuclear weapons are deployed on naval vessels on alert status, they constitute a threat of use. The ICJ’s opinion was that the threat or use of nuclear weapons would be generally contrary to international law, and in particular the humanitarian laws of warfare. The only situation in which the ICJ was inconclusive on absolute illegality was the extreme circumstance of self-defence when the very survival of a State is at stake. Considering the conclusion of general illegality, the burden of proof that a specific situation of threat or use is not proscribed by this rests on the threatening or using state. There is no proof offered by the deploying states that there is currently a threat to the very survival of a state which would require a threat or use of nuclear weapons.[83]

In any case, the first step for the NWFZ States Parties would not be to attempt to prohibit transit, but to request the NWS not to transit. If the NWS refuse, then the States Parties could contemplate what further action to take.

ii)Encouraging additional zones

There are proposals for additional NWFZs in North East Asia, the Middle East, Central Asia and Europe. The experiences developed in the establishment of the existing zones can help guide negotiations for the new zones and provide ideas for overcoming some of the current barriers. As the regions of the world covered by NWFZs increases, so too does the legal and political norm of abolition. Conceptually, the regions covered by NWFZs could continue to grow until the whole world becomes a NWFZ. While a nuclear weapons-free world will require a different legal framework to that of a regional NWFZ, the concept is useful in helping build political will and the norm of abolition.

iii) Hosting nuclear abolition deliberations and negotiations

The States parties to the NWFZs could offer to host deliberations and negotiations for nuclear weapons abolition measures culminating in a nuclear weapons convention (see “Ottawa-style process Section 10 below).

10) Other possibilities

Other possible venues for progress include the Conference on Disarmament (CD), a UN General Assembly initiated negotiating conference, an amendment to the NPT, and an independent “Ottawa” style process led by a NWS or a State that has renounced nuclear weapons. States should consider which combination of these venues would be best to utilize in order to generate progress towards abolition. It may be that some venues are better for generating political will or dealing with political issues, while others could be better for conducting in-depth negotiations on technical and legal aspects.

a) Conference on Disarmament process.

The Conference on Disarmament (CD) was established as the primary negotiating body for multilateral disarmament treaties. As such it was instrumental in negotiations for the Chemical Weapons Convention and the Comprehensive Test Ban Treaty.

The UN General Assembly has for a number of years been requesting the CD to establish an ad hoc committee to deal with the subject of nuclear disarmament. However, it has not proven possible to establish such a body given the reluctance of some key States and the fact that the CD works by consensus on both procedural and substantive matters.

States should continue to push for the CD to work on nuclear disarmament, but should not wait until agreement is reached on starting deliberations, let alone negotiations.

In the meantime, the CD provides a useful forum for informal work on elements required for nuclear abolition – similar to the way CD members established an informal group on verification of nuclear testing prior to the CD being given a negotiating mandate.

b) UN General Assembly initiated negotiating conference.

The UN could establish additional fora, complementary to the CD, to work on nuclear abolition. The UN General Assembly has held three special sessions on disarmament at which nuclear disarmament was a priority, and there have been proposals for a fourth session to be convened. In addition, UN Secretary-General Kofi Annan in his 2000 Millennium Report called for the convening of “a major international conference that would help to identify ways of eliminating nuclear dangers.”

While such one-off conferences can be useful in advancing political will, in general a more continuous process is required in order to conduct deliberations and negotiations culminating in concrete agreements. The UN Convention on the Law of the Sea and the Statute for an International Criminal Court, for example, were negotiated through ongoing negotiation conferences established by the UNGA. There is thus scope for the UN General Assembly to convene an ongoing negotiating conference for specific nuclear abolition goals. Such a conference would differ from the CD in that it would be open to all UN member States (the CD has limited membership) and it would aim for, but not require, absolute consensus from all States on all aspects of the negotiated agreements.

c) NPT amendment conference

In 1991 a conference of States Parties to the Partial Test Ban Treaty was held to consider an amendment to the treaty which would effectively prohibit all nuclear tests turning the PTBT into a Comprehensive Test Ban Treaty (CTBT). While the proposed amendment was not adopted, the conference developed considerable political pressure on the NWS to commence negotiations for a CTBT.

Similarly, a conference of States Parties to the NPT could be called to consider an amendment to the treaty which would effectively transform the treaty into one prohibiting the possession of nuclear weapons by any State. The simple amendment would be to remove the distinction between nuclear and non-nuclear weapon States in articles I, II and III, thus making the obligations in these articles applicable to all States. Moreover, the conference called to consider an amendment would have the potential to become a negotiating forum with a mandate to abolish nuclear weapons.

The concept is simple and powerful. If an amendment conference were to be held, it would be unlikely to conclude in adoption of the amendment as such adoption requires the consent of all the NWS and board members of the IAEA. However, it would generate considerable political pressure on the NWS to begin nuclear disarmament negotiations, and it would have the added advantage of proposing a revised treaty which is non-discriminatory thus removing the rationale for nuclear-capable States such as India and Pakistan to remain outside the treaty.

d) Ottawa-style process.

In the early 1990s efforts were underway to negotiate an additional protocol to the Inhumane Weapons Convention[84] which would restrict or prohibit anti-personnel landmines. When it became clear at the 1996 IWC Review Conference that a prohibition on anti-personnel landmines could not be achieved due to opposition by a few key States, an alternative approach was announced by Canada’s Foreign Minister Lloyd Axworthy which became known as the Ottawa process. Axworthy invited all interested States to Ottawa to negotiate and adopt a treaty prohibiting anti-personnel landmines. The negotiations concluded with adoption of the treaty in 1997 and it entered into force following the 40th ratification in 1998.

While the Landmines Convention has not been ratified by all States, it has been instrumental in strengthening the global norm against landmines and generating sufficient political will to move some States which previously employed landmines to relinquish them, and others to announce that they intend to do so in due course.[85]

The situation with nuclear weapons is not the same as with landmines. While both weapons are indiscriminate, inhumane and arguably illegal, their military and political utility differ as does the current situation with regards to constraint regimes. In the case of nuclear weapons, the world already has an Ottawa-style treaty, i.e. one in which those countries prepared to abandon the weapons have joined: it is the NPT. What is required with nuclear weapons is to go beyond an Ottawa-style treaty and develop a process to involve all States including NWS and non-Parties to the NPT.

Despite these differences, there is considerable merit in the concept of an independent deliberating and negotiating conference on nuclear abolition in which all States are invited to join, and which can begin work on nuclear abolition measures even if not all the NWS currently agree. Like the Ottawa process, such an ongoing conference would generate considerable media coverage and political pressure on NWS and non-NPT States to abandon nuclear deterrence and embrace abolition.

The deliberations could provide a useful forum for developing plans and procedures required for the abolition of nuclear weapons, including consideration of such key issues as security assurances, compliance measures, verification, disposition of fissile material, transparency v commercial and State confidentiality, development of individual rights (whistleblower protection) and responsibilities (including scientific responsibilities and criminal law).

The deliberations could also lead to the adoption and implementation of measures which could assist abolition even prior to the beginning of abolition negotiations by the NWS. This could include, for example, establishment of verification systems and adoption of national abolition measures including more robust criminal law and prohibition of transit through territorial waters.

There are a number of possible candidates to initiate or lead an Ottawa-style process including a NWS, a non-Party to the NPT, a State which has relinquished nuclear weapons, a group of States which have abandoned nuclear weapons (such as the NWFZs) or a State or States which have particular political significance in relation to nuclear disarmament (such as Japan or the New Agenda Coalition).

i) Nuclear Weapon State

A process led by a NWS would be very influential on the other NWS. The most obvious candidate from amongst the NWS would be the United Kingdom which has acknowledged that a nuclear weapons convention will be required at some stage in the future, has reduced the operational readiness of its nuclear weapons, and has begun work on verification of its nuclear weapons as would be required once negotiations begin. However, the UK has indicated its unwillingness to take any further disarmament steps until the numbers of weapons held by the US and Russia are down to the hundreds rather than the thousands. China has indicated support for negotiations on a nuclear weapons convention, but has been unwilling to take any practical steps that would advance this.

ii)State non-Party to the NPT

The NWS and some of their allies might be dismissive of a process led by a State non-Party to the NPT, as they might see it as an attempt by that State to gain an international platform to criticize the NWS but take no responsibility for its own nuclear policies. Thus, if a non-Party to the NPT led this process, it would need to commit itself to some nuclear disarmament steps from the outset in order to build credibility.

The most likely candidate would be India, which advanced the Rajiv Gandhi plan for nuclear abolition under a previous Congress-led government. The current Congress-led government has indicated an interest in reviving and updating the Rajiv Gandhi plan and on seeking opportunities to make progress.[86]

iii)State which has relinquished nuclear weapons

Candidates here would include Argentina, Belarus, Brazil, Kazakhstan, South Africa and the Ukraine. Each State has nuclear disarmament credibility having willing relinquished nuclear weapons or nuclear weapons programmes. Argentina and Brazil possibly have more experience than the others in verification of nuclear disarmament agreements as a result of the measures developed under the Agreement for the Exclusively Peaceful Use of Nuclear Energy Argentina and Brazil, 1991. If they worked collectively these States would generate considerable interest and political impetus.

iv)Nuclear Weapon Free Zone States Parties

As noted above, the regional NWFZ States Parties are starting a process of communication and collaboration in order to strengthen the existing NWFZs, encourage establishment of additional zones and contribute to the achievement of a nuclear weapons-free world. A nuclear abolition process led by the NWFZ State Parties would have the political weight of the numbers of States sponsoring the process as well as an already established connection with the NWS (as signatories to the NWFZ protocols).

v)Japan

Mayors for Peace has proposed a Hiroshima process, should the 2005 NPT Review Conference fail to make progress towards nuclear abolition. They envisage States being invited to Hiroshima to begin the deliberations and negotiations for nuclear abolition. A problem with this proposal is that without the support of the Japanese government, other States may be reluctant to see this as a State-State negotiating process. On the other hand the initiative is worth considering given the surprisingly strong development of the Mayors for Peace abolition campaign, which in two years has recruited over 600 mayors from cities around the world including the capitals of NWS, and their potential to generate political will.

vi)New Agenda Coalition

The New Agenda Coalition has been very effective in advancing a nuclear disarmament program in such a way as to engage all NPT members including NATO members and the NWS. The success of the 2000 NPT Review Conference is due in large part to the New Agenda Coalition and their skilful diplomatic approach. An independent abolition process led by the NAC would thus hold diplomatic credibility. On the other hand, the NAC does not have any institutional connection to the NWS or States not Parties to the NPT nor any politically significant connection to nuclear abolition that could help generate sufficient political will to move the NWS and non-NPT States to join the process.

11)Legal, technical and political requirements for achieving and maintaining a nuclear weapons free world.

Considerable conceptual work has already begun on the legal, technical and political requirements for achieving and maintaining a nuclear weapons free world. This includes the drafting of a Model Nuclear Weapons Convention (Model NWC) by an international consortium of lawyers, scientists and disarmament experts, circulation of this model by the United Nations,[87] consideration of the Model NWC in various scientific, diplomatic and academic settings,[88] and publication of various discussions on the Model NWC.[89]

The Model NWC includes detailed proposals for:

a) general obligations of states and individuals under a nuclear weapons abolition regime

b) a phased program for dismantling and destroying existing nuclear stockpiles

c) control mechanisms for nuclear facilities and materials

d) a verification regime

e) criminal liability for violators

f) protection measures for whistleblowers

g) dispute resolution and enforcement procedures

h) measures for dealing with delivery vehicles and dual use materials

i) national implementation measures

j) an agency for overseeing the convention

k) entry into force options

l) relationships to other nuclear related agreements and regimes

m) a protocol concerning nuclear energy

The Model NWC does not answer all the questions involved in the abolition of nuclear weapons – some of these will not be answered until deep into negotiations or with further advances in technical capabilities and international disarmament mechanisms. However, what the Model NWC does do is indicate that such questions can be answered and that nuclear abolition is a practical achievable goal.

The Model NWC, and other work to consider the requirements for a nuclear-weapons free world, will also be valuable as a starting point for any deliberative and negotiating processes for abolition that commence.

In 2000, Malaysia and Costa Rica introduced a working paper to the NPT Review Conference encouraging States to give consideration to the legal, technical and political requirements for achieving and maintaining a nuclear-weapons free world.[90] In 2004 Malaysia released a draft follow-up to this paper for the 2005 NPT Review Conference.[91] Support for this paper from other States would help move the abolition agenda forward at the 2005 NPT Review Conference.

12) Conclusion:

The 21st Century has opened to new nuclear dangers including increased risks of proliferation to both States and non-State actors, as well as expanded nuclear doctrines from the NWS with new rationalisations for the threat or use of nuclear weapons.

The fundamental accord of the NPT, between the non-NWS who agreed not acquire nuclear weapons and the NWS who agreed to eliminate their arsenals, is being eroded on one side by the increasing proliferation risks and on the other by a lack of action on the part of the NWS to implement their disarmament obligations.

The divide between the non-NWS and the NWS (and some of their allies) is growing as the non-NWS become increasingly frustrated at the continuing (and expanding) nuclear doctrines of the NWS, while the NWS and their allies become more belligerent to prevent proliferation including through the threat and use of force. If not reversed, this trend threatens to further erode the non-proliferation regime and possibly lead to a catastrophic use of nuclear weapons.

Adopting an abolition approach – combining both non-proliferation and disarmament - could help bridge this divide, and help pave the way for progress on both, culminating in the complete prohibition and elimination of nuclear weapons.

The abolition approach has become feasible due to advances in verification technology, compliance procedures, co-operative security mechanisms and changing international political and economic systems. In combination these are capable of replacing the rationalisations for nuclear deterrence.

These developments indicate that now is the time for governments, at the highest level, to start seriously advocating for and advancing a nuclear abolition agenda. Nuclear abolition, once a utopian ideal, has now become a political possibility that must be grasped and implemented.

[1] Rt Hon Helen Clark, Foreword to The Naked Nuclear Emperor:Debunking Nuclear Deterrence, Robert Green, The Raven Press, Disarmamentand Security Centre, Christchurch, New Zealand, 2000.

[2] A more secure world: our shared responsibility: Report of the High-levelPanel on Threats, Challenges and Change, UN Document A/59/565, 2December 2004.

[3] Report of the Canberra Commission, 1996, www.dfat.gov.au/cc/cchome.html

[4]US Doctrine for Joint Theater Nuclear Operations, Joint Chiefs of Staff, 9February 1996 pI-2

[5] President Bush Addresses United NationsGeneral Assembly, The White House,http://www.whitehouse.gov/news/releases/2003/09/20030923-4.html

[6]UN Security Council Press Release SC/8076, Security Council decides allStates shall act to prevent proliferation of mass destruction weapons.28 April 2004, http://www.un.org/News/Press/docs/2004/sc8076.doc.htm

[7]Statement of Ambassador Rastam Mohd Isa, Permanent Representative ofMalaysia to the United Nations on behalf of the Non-Aligned States Partiesto the Treaty on the Non-Proliferation of Nuclear Weapons at the GeneralDebate of the Third Session of the Preparatory Committee for the 2005 ReviewConference of the Parties to the treaty on the Non-Proliferation of NuclearWeapons. New York, 26 April 2004. http://www.reachingcriticalwill.org/legal/npt/prepcom04/malaysianam26.pdf

[8]Presentation by Jimmy Carter to “The Future of the Non-ProliferationTreaty”, consultation organised by the Middle Powers Initiative, Atlanta,Georgia, Jan 26-28, 2005.

[9]The North Korean statement on withdrawal from the NPT on 10 Jan 2003explained “A particular mention should be made of the fact that the IAEA inthe recent “resolution” kept mum about the U.S. which has grossly violatedthe NPT and the DPRK-U.S. Agreed Framework, but urged the DPRK, the victim,to unconditionally accept the U.S. demand for disarmament and forfeit itsright to self-defence” http://www.wildrooster.com/%7Epnndorg/npt_withdrawal.htm.A press release from the Korean Central News Agency issued on May 13, 2003further explaining the North Korean withdrawal from the NPT, noted that theUS “policy to mount preemptive nuclear attacks on 7 countries includingthe DPRK was a wanton violation of the basic spirit of the NPT which callson the nuclear weapons states to refrain from threatening other countrieswith nukes or using them against other countries” and that “ Afterthe demise of the East-West Cold War, the U.S. has escalated nuclear threatsand war moves not only on the Korean peninsula but worldwide, stylingitself an “international gendarme” and the “world’s only superpower.”

[10] According to the Bulletin of Atomic Scientists thisincludes about 15,000 operational warheads (USA: 5300, Russia: 7800, China:400, France: 350, UK: ≤200, Israel: ≤200, India: 30-35, Pakistan: 20-40) andabout 15,000 warheads in reserve (US: 5000, Russia: ≤10000). NRDC NuclearNotebook, http://www.thebulletin.org/nuclear_weapons_data/

[11]Under the Strategic Offensive Reduction Treaty (SORT), the U.S.A. and Russiaagree to reduce their deployed strategic weapons to no more than 1700-2200by December 31, 2012. However, there is no requirement to destroy thewarheads removed from deployment.

[12]In addition, US opposition to the Comprehensive Test Ban Treaty and tonegotiate a Fissile Material Cut-Off Treaty is seen as in violation to theagreement on these specific items as part of the indefinite extension of theNPT in 2000.

[13]Presentation by Hon Marian Hobbs, New Zealand Minister of Disarmament, to“The Future of the Non-Proliferation Treaty”, consultation organised by theMiddle Powers Initiative, Atlanta, Georgia, Jan 26-28, 2005

[14]In a dualistic system there are two conflicting forces, sometimes called thethesis and anti-thesis or positive and negative poles, depending on the typeof system. The system will fluctuate from one pole to the other depending onthe nature of the forces at work – and it will continue to see-saw back andforth unless there is a third approach which synthesizes the two poles andtakes the system to a new level.

[15]Presentation by Hon Marian Hobbs, New Zealand Minister of Disarmament, to“The Future of the Non-Proliferation Treaty”, consultation organised by theMiddle Powers Initiative, Atlanta, Georgia, Jan 26-28, 2005

[16]ibid

[17]The US approach to focus Proliferation Security Initiative actions against‘States of concern’, for example, would fail the principle of universalapplication of international law, under which acts or behaviours are eitherpermitted or prohibited for all actors, regardless of whether they are a‘State of concern’ or not.

[18]However, there are differing opinions on this. Abolition 2000, theinternational network for the abolition of nuclear weapons which was foundedin 1995, calls for a time-bound framework for the elimination of nuclearweapons. Mayors for Peace, comprising over 600 mayors from around the worldcalling for nuclear abolition propose a time-bound framework for theachievement of a nuclear abolition treaty by 2010 and the completeelimination of nuclear weapons by 2020. On the other hand the Model NuclearWeapons Convention circulated by the United Nations (UN Doc A/C.1/52/7)places more attention on the requirements in each of a series of disarmamentphases their actual time frame being the subject of negotiation.

[19] The Conference urges India and Pakistan to accede to theNon-Proliferation Treaty as non-nuclear-weapon States and to place all theirnuclear facilities under comprehensive Agency safeguards. 2000 ReviewConference of the Parties to the Treaty on the Non-Proliferation of NuclearWeapons Final Document, NPT/CONF.2000/28 (Parts I and II), Pp18-19

[20]India’s nuclear doctrine, for example, provides that In the absence ofglobal nuclear disarmament India's strategic interests require effective,credible nuclear deterrence and adequate retaliatory capability shoulddeterrence fail. Draft Report of the National Security Advisory Boardon Indian Nuclear Doctrine August17, 1999. Para 2.1 http://www.fas.org/nuke/guide/india/doctrine/990817-indnucld.htm#pr

[21]India’s nuclear doctrine for example notes that Global, verifiable and non-discriminatory nucleardisarmament is a national security objective. India shall continue itsefforts to achieve the goal of a nuclear weapon-free world at an early date. Ibid para 8.1

[22]A press statement released by the Indian government following the 1998 testsnoted that " the refusal of the nuclear weapon states to consider theelimination of nuclear weapons...continues to be the single biggest threatto international peace and security It is because of the continuing threatposed to India by the deployment of nuclear weapons that we have beenforced to carry out these tests." – Indian Press Statement, May 15, 1998

[23]This includes the development of a nuclear triad (land, sea and air) withflexibility to give nuclear weapons a range of roles and operational tasksand with weapons maintained at a high level of readiness to use.

[24]The Indian statement to the ICJ stated “it is submitted that the threator use of nuclear weapons in any circumstance, whether as a means or methodof warfare or otherwise, is illegal or unlawful under international law,” and that “Since the production and manufacture of nuclear weapons canonly be with the objective of their use, it must follow that if the use ofsuch weapons itself is illegal under international law, then theirproduction and manufacture cannot under any circumstances be considered aspermitted. Besides, the manufacture and stockpiling of nuclear weapons wouldconstitute as a threat of their eventual use.” http://www.icj-cij.org/icjwww/icases/iunan/iunan_ipleadings/iunan_ipleadings_199506_WriStats_12_India.pdf

[25]The statement to the ICJ was during a Congress led government. Subsequentlya BJP led government subscribed to the position that nuclear deterrence “Isconsistent with the UN Charter, which sanctions the right of self-defence” Draft Report of the National Security Advisory Board on IndianNuclear Doctrine August 17, 1999. Para 2.1

[26]Report of the Canberra Commission, 1996. www.dfat.gov.au/cc/cchome.html

[27] Verification of a nuclear weapon-free world, Trevor Findlay, VERTICBrief. May 2003, p2 http://www.vertic.org/assets/BP1_Findlay.pdf

[28]Ibid p11

[29]See The Naked NuclearEmperor p87, endnote 40

[30] UN Security Council Resolution 1172, adopted 6 June 1998. http://daccessdds.un.org/doc/UNDOC/GEN/N98/158/60/PDF/N9815860.pdf?OpenElement

[31]The NWS, each of which hold veto power over Security Council decisions,would be unlikely to allow such a determination unless and until theythemselves have abandoned nuclear testing and production.

[32]The pre-ambular text in question reads “welcoming the determination ofthe five nuclear-weapon States to fulfil their commitments relating tonuclear disarmament under Article VI of that Treaty.”

[33] UN Security Council Resolution 1540 adopted on 28 April 2004. http://daccessdds.un.org/doc/UNDOC/GEN/N04/328/43/PDF/N0432843.pdf?OpenElement

[34]The Security Council says in Resolution 1540 that it is “ Actingunder Chapter VII of the Charter of the United Nations.”

[35]United Nations Security Council Resolution 1540 Report New Zealand, October2004, p1. http://www.gsinstitute.org/pnnd/NZUNSC1540.htm

[36]Territorial Dispute: Libyan Arab Jamahiriya /Chad (1991), ICJ Judgment of 13February 1994. http://www.icj-cij.org/icjwww/icases/idt/idtframe.htm. Priorto the ICJ case, Libya and Chad had fought at least three wars over theterritorial border. Libya and Chad accepted the ICJ decision, withdrewtroops from the previously disputed area and concluded a peace agreement.

[37]Nuclear Test (New Zealand v France (1973) and Australia v France (1973).http://www.icj-cij.org/icjwww/icases/inzf/inzfframe.htm The ICJ case wasinstrumental in moving France to abandon above ground testing in 1975. See Aotearoa/New Zealand at the World Court, Kate Dewes and Robert Green,Disarmament and Security Centre, Christchurch, New Zealand, 1999.

[38]The United Nations Secretary General, for example, successfully mediated adispute between New Zealand and France concerning the French sponsoredterrorist bombing of the Rainbow Warrior, a peace activist ship, in Aucklandharbour.

[39] The Carter Center, established by former US President Jimmy Carter, has successfully mediated a number of international conflicts including the conflict between North Korea and the USA in 1993-94 over North Korea’s nuclear weapons program and which threatened to escalate into armed conflict and possibly nuclear war. See The Carter Center: North Korea http://www.cartercenter.org/activities/showdoc.asp?countryID=44&submenuname=activities# and The Crater Centre Conflict resolution programs http://www.cartercenter.org/peaceprograms/program12.htm

[40]Events that occur in a system can be neutral (have no impact on the system),generate negative feedback (an opposite reaction) or generate positivefeedback (a reinforcing action). A thermostat in an oven is an example of anegative feedback loop. When the oven heats up, the thermostat switches theelements off. When the oven cools down, the thermostat turns the elementsback on. People often experience positive feedback loops when learning a newskill like an instrument. As they get better, they enjoy the practice moreand this stimulates them to put even more effort into the skill.

[41]See for example, Michael Klare, Resource Wars: The New Landscape ofGlobal Conflict, Metropolitan Books, New York, 2001.

[42] Operating Manual for Spaceship Earth ,Buckminster Fuller, http://www.bfi.org/operating_manual.htm

[43]The People World-wide Want Nuclear Abolition: Results of Independent OpinionPolls. http://www.abolition2000.org/resources/docs/poll_worldwide.pdf

[44]http://www.abolitionnow.org/mayors.html

[45]General Lee Butler, “A Voice of Reason” The Bulletin of the AtomicScientists, Vol. 54 No. 3, May/June 1998, p60.

[46]Statement on nuclear abolition by retired generals and admirals, 5 December1996. http://www.nuclearfiles.org/redocuments/1996/961205-admirals.html

[47]Doctrine for Joint Theater Nuclear Operations, Joint Chiefs of Staff Pub3-12.1. 9 February 1996.

[48]See Robert Green, The Naked Nuclear Emperor, pp36-51

[49]Ibid p51

[50]On June 21, 2000, religious and military leaders issued a call throughWashington National Cathedral for the elimination of nuclear weapons. TheCall by Military and Religious Leaders, endorsed by 18 retired flag-rankmilitary officials and 21 heads of America’s pre-eminent religiousdenominations and organizations, states: “National security imperativesand ethical demands have converged to bring us to the necessity of outlawingand prohibiting nuclear weapons worldwide.” http://www.gsinstitute.org/archives/000018.shtml#000018

[51]As President Bush addressed the U.S. Conference of Mayors in Detroit today,a statement from mayors of major cities in the U. S. and abroad wasreleased, calling on him to reduce and eliminate nuclear weapons "with alldeliberate speed," and "to declare your firm commitment to the task ofeliminating nuclear weapons from the face of the earth." In addition,minutes before the President's arrival to address them today, the plenarymeeting of the U. S. Mayor's Conference reaffirmed from the floor its policyin favor of eliminating nuclear weapons.
U.S. Mayors Ask Bush to Commit to EliminatingNuclear Weapons, Press Release, KentCommunications, June 25, 2001. http://www.gsinstitute.org/archives/000061.shtml#000061

[52]See www.abolition2000.org

[53]See www.abolitionnow.org

[54]For a discussion on the methods used by the UN Security Council to ensureand enforce Iraq’s compliance with obligations to eliminate nuclear weaponsand other WMD programs, see Rule of Force or Rule of Law: Legal Responsesto Nuclear Threats from Terrorism, Proliferation and War, Alyn Ware, Seattle Journal for Social Justice Vol 2, Issue 1 2003.

[55] Pentagon recommends use of nuclear weapons . Kyoto News, September 19, 2001

[56] UN TV, September 19, 2001

[57] The next terrorist threat. Chicago Tribune, September 24, 2001

[58] Crude Nuclear Weapons: Proliferation and the Terrorist Threat, IPPNW,1996

[59]www.ippnw.org/NukeTerrorism01.html, 6 February 2002

[60] Crude Nuclear Weapons: Proliferation and the Terrorist Threat, IPPNW,1996

[61]Most States, particularly democratic States, are built on a strongfoundation of respect for the law. While there are differences of opinion onhow far international law has developed, the underlying legal foundation forStates generates a general tendency to adhere to international law out ofprincipled respect for its authority when such authority is clearlydetermined. C.G. Weeramantry, former Vice-President of the InternationalCourt of Justice, for example, notes that “International law is respectedthrough the weight of its legal authority. The ICJ itself has no enforcementpowers, yet over 90% of its decisions are implemented. This includes caseswhere the states were otherwise prepared to resort to force, such as thecase between Libya and Chad” (Submission to the New Zealand Foreign AffairsSelect Committee, C.G. Weeramantry, 14 August 2003)

[62]International law is as much about making things work effectively as it isabout preventing aggressive acts. For example, international law on airspacemanagement ensures that planes don’t crash into each other.

[63]International law is built to a large degree on either agreements orunderstandings that adherence by a State to its obligations will result inadherence by other States to their obligations. Thus, it is within theself-interest of States to adhere to the law as it will ensure that othersdo also.

[64]States have an interest in promoting their image internationally. A positivenational image helps in trade, tourism and diplomacy. An image as a lawabiding nation assists these. An image as a rogue State is detrimental tothese.

[65]The most serious repercussions would be action by the UN Security Councilincluding sanctions and even the possibility of the use of force. However,the UN Security Council isn’t the only body that could take action. Regionaland treaty bodies also have such powers. And in some cases, such as crimesagainst humanity, war crimes and torture, universal jurisdiction has beenestablished enabling States to take action against violators regardless ofwhich State they are a national of.

[66]The US Doctrine for Joint Theater Nuclear Operations, for example, statesthat “to comply with the law, a particular use of any weapon must satisfythe long-standing targeting rules of military necessity, proportionality,and avoidance of collateral damage and unnecessary suffering… In somecircumstances, the use of a nuclear weapon may therefore be inappropriate.”pI-1

[67]“Neither the law of armed conflict nor any other customary or conventionalinternational law prohibits the use of nuclear weapons in armed conflict.”Ibid p I-1

[68]The NWS have acknowledged that they would only use nuclear weapons in ‘anextreme circumstance’ but have not changed their policies to proscribe theuse of weapons the destructiveness of which would make them unable toconform to the humanitarian laws of war – a requirement that was notextinguished by the ICJ in the extreme circumstance scenario.

[69] See: Verification of nuclear disarmament: first interim report on studies intothe verification of nuclear warheads and their components:Working paper submitted by the United Kingdom of Great Britain

andNorthern Ireland, NPT/Conf.2005/PC.II/WP.I

http://www.reachingcriticalwill.org/legal/npt/2003statements/Working%20Papers/WP1UK.pdf?

[70]New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987.http://www.gsinstitute.org/pnnd/docs/nukefree.html

[71] Chemical Weapons Convention Implementation Act of1998, Section 229 http://www.cwc.gov/Authorities/legislation/cwcIndex_html#sec201

[72]http://disarmament2.un.org/Committee1540/index.html

[73]United Nations Security Council Resolution 1540 Report New Zealand http://www.gsinstitute.org/pnnd/NZUNSC1540.htm

[74]See Modalities, format and organization of the high-level plenary meetingof the sixtieth session of the General Assembly, Report of theSecretary-General, UN General Assembly Document A/59/545, para 3 and 6.http://daccessdds.un.org/doc/UNDOC/GEN/N04/583/08/PDF/N0458308.pdf?OpenElement

[75]Verification of nuclear disarmament: first interim report on studies intothe verification of nuclear warheads and their components: Working papersubmitted by the United Kingdom of Great Britain

andNorthern Ireland, NPT/Conf.2005/PC.II/WP.I

http://www.reachingcriticalwill.org/legal/npt/2003statements/Working%20Papers/WP1UK.pdf?

[76] Compliance: Working Paper submitted by Germany NPT/CONF.2005/PC.III/WP.16http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/germanyWP16.pdf

and Strengthening the NPT against withdrawal and non-compliance, suggestions forthe establishment of procedures and mechanisms, Working paper submittedby Germany (NPT/CONF.2005/PC.III/WP.15), http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/GermanyWP15.pdf

[77]New Agenda Coalition Substantive recommendations to the third session of thePreparatory Committee of the 2005 NPT Review Conference, Submitted by the NewAgenda Coalition (NPT/CONF.2005/PC.III/11) http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/NACrecs11.pdf

[78]Follow-up to the International Court of Justice advisory opinion on thelegality of the threat or use of nuclear weapons, NPT/Conf.2000/MC.I/SB.1/WP.4 http://www.reachingcriticalwill.org/legal/npt/NPTDocuments/mc1docs/icjwp.html

[79]http://www.lcnp.org/disarmament/npt/2005NPTmalaysia-wp.htm

[80]Nuclear Weapon Free Zones and the promotion of nuclear non-proliferation,Speech by Edmundo Vargas Carreno, Secretary-General of OPANAL, PNNDConference, Wellington, December 8, 2004.

[81]Ibid

[82]Strengthening Existing Nuclear Weapon Free Zones, Devon Chaffee, HerbertScoville Jr. Peace Fellow, and Jim Wurst, New York correspondent for UNWire, http://www.lcnp.org/disarmament/nwfz/StrengtheningExistingNWFZ.htm

[83]Submission to the New Zealand Foreign Affairs Select Committee, C.G.Weeramantry, 14 August 2003

[84]Convention on prohibitions or restrictions on the use of certainconventional weapons which may be deemed to be excessively injurious or tohave indiscriminate effects (1981).

[85]See “A Ban against landmines? Never!” Jody Williams, in Peace is Possible,Fredrik Heffermehl (ed) International Peace Bureau, Geneva, 2000.

[86]See Rajiv Gandhi Action Plan for a Nuclear-Weapons-Free World (DraftConvention), Mani Shankar Aiyar MP, presentation at an internationalparliamentary forum: From Nuclear Dangers toCooperative Security: Parliamentarians and the Legal Imperative for NuclearDisarmament. Li