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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 the International 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 a nuclear-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 and Change
    3. NPT Review Process
    4. Southern Hemisphere and Adjacent Areas Nuclear Weapon Free Zone
  10. Other possibilities
    1. Conference on Disarmament
    2. UN General Assembly negotiating conference
    3. NPT amendment conference
    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:

  • The threat of use of nuclear weapons is supposed to prevent war, including an enemy attack with nuclear weapons. However, to be credible, the deterring State must demonstrate a readiness and willingness to use nuclear weapons, which increase the probability of such use, particularly over a long period of time.

  • The threat of use of nuclear weapons is supposed to prevent the acquisition by opposing States of nuclear weapons and other weapons of mass destruction. However, the reverse is true as the opposing States, in order to deter the use of nuclear weapons against them, become more inclined to develop their own nuclear deterrent.

  • Nuclear deterrence relies on rationality on both sides in a conflict. However, as demonstrated by the 1962 Cuban Missile Crisis, rationality requires knowledge of the opponent’s intentions some of which are easily misconstrued or purposefully kept vague.

  • Nuclear deterrence requires a territorial target against which to direct a nuclear attack, the threatened destruction of which deters the opponent from attacking. Such targets are difficult if not impossible to find in order to deter terrorist organisations.

  • Nuclear deterrence aims to keep the peace by preventing attacks. However, the level of destruction threatened by nuclear weapons, along with threat of use, stimulates a hostile environment more conducive to the outbreak of armed conflict. [48]

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:

  • Statement on nuclear abolition by retired generals and admirals, 5 December 1996

  • Religious and military leaders call for nuclear disarmament, 21 June 2000[50]

  • U.S. mayors ask Bush to commit to eliminating nuclear weapons, 25 June 2001[51]

  • Over 2000 non-governmental organisations have joined Abolition 2000’s call for the abolition and elimination of nuclear weapons.[52]

  • Over 600 mayors from around the world have joined the Mayors for Peace emergency campaign to abolish nuclear weapons.[53]

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:

  • Launching criminal proceedings against any persons involved in the development of nuclear weapons or responsible for making such a threat

  • Initiating diplomatic or economic sanctions against the State involved

  • Launching direct disarmament actions directed at the nuclear weapons, delivery systems or nuclear facilities involved

  • Establishing serious repercussions under an agreed contingency plan, including military action and possible regime change procedures, should a State launch a nuclear attack

 

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]