Disarmament Diplomacy

Towards 2010 and Beyond

Security Assurances for Everyone:
A New Approach to Deterring the Use of Nuclear Weapons

Rebecca Johnson

Back in the 1960s, in the dark days of the cold war, when people came together to negotiate the Non-Proliferation Treaty (NPT), governments that were being asked to undertake a legally-binding obligation not to develop nuclear weapons very reasonably pointed out that this decision should not leave their populations' security compromised. If they agreed not to make these dreadful weapons of mass destruction for themselves, then pending their total elimination, which the treaty required, non-nuclear-weapon states (NNWS) should receive assurances that they would not be left vulnerable to attack by countries that still had them.

Security assurances to NPT states was an especially important issue for non-aligned negotiators, since their countries did not receive security guarantees from the nuclear superpowers as part of any military alliances. What they wanted, either in the NPT or through a separate treaty, was 'negative security assurances' (NSA) that the nuclear weapon states (NWS) would not attack or threaten them with nuclear weapons and 'positive security assurances' (PSA) that the nuclear powers would come to their assistance if they were to be threatened or attacked with such weapons.

Fearing that to extend such assurances to all NPT states parties would undermine their own nuclear alliances and doctrines, the UK, US and USSR refused both options. Instead, these three NWS made unilateral statements on the issue which were given UN authority by means of Security Council resolution 255, adopted on 19 June 1968 by 10 votes, with no votes against and five abstentions (Algeria, Brazil, France, India and Pakistan).

Resolution 255 recognized that "aggression with nuclear weapons or the threat of such aggression against a non-nuclear-weapon State would create a situation in which the Security Council, and above all its nuclear-weapon State permanent members, would have to act immediately in accordance with their obligations under the United Nations Charter" and welcomed "the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act or an object of a threat of aggression in which nuclear weapons are used".

Since then, the issue of security assurances has been a political football at successive NPT meetings, with barely any substantive progress. Many states, especially from the non-aligned bloc, continue to assert that these resolutions are inadequate and call for multilaterally negotiated legally binding security assurances. Some want these to be negotiated in the Conference on Disarmament (CD), while others demand that negotiations take place under NPT auspices.[1]

Understandable though such demands are, they are unlikely ever to succeed. Moreover, in view of the changed security threat environment relating to nuclear weapons since the end of the cold war, they miss their objective and have been overtaken by events. This article makes the case for overhauling our approach to security assurances to build a universal, non-discriminatory regime to deter the use and threat of use of nuclear weapons pending their total abolition.

Background on Security Assurances

The two cold war superpowers presided over nuclear alliances that relied on doctrines of extended deterrence, with the relevant NWS providing security guarantees to non-nuclear members of the alliances. Under the Warsaw Pact, Soviet weapons were dispersed among various of the countries in the USSR, while US and British weapons were deployed on the territory of some European partners in NATO.

While the non-aligned countries sought security assurances as part of the NPT package because they lacked the extended deterrence security guarantees accorded to allies of the nuclear powers, the NWS could not provide such unconditional assurances without undermining their existing doctrines and policies. NATO's doctrine of extended deterrence relied on the NATO nuclear weapon states being prepared to initiate the use of nuclear weapons. The same applied to the Soviet Union, despite its leadership periodically declaring a policy of no first use. NPT historians argued that positive security assurances were also difficult for the NWS, as they "implied an open-ended commitment to aid all non-nuclear-weapon state parties in all circumstances".[2]

Nevertheless, pressure for unconditional negative security assurances continued. In 1978, in the context of the First UN Special Session on Disarmament (UNSSOD I), all five NPT-recognized NWS made unilateral statements setting out their national policies. China offered unconditional assurances not to threaten or use nuclear weapons against any NNWS; France limited its security assurance to states that were party to a binding nuclear-weapon-free zone (NWFZ) treaty; and the Soviet assurances covered all states that had renounced the production and acquisition of nuclear weapons and did not have them on their territories, thereby ruling out NATO states that participated in nuclear sharing arrangements with the United States. The UK and the United States harmonized their assurances, excluding NNWS that were allied to another NWS and situations of invasion or attack on their respective countries, armed forces or allies. France changed its security assurance to harmonize with Britain and the United States in 1982, replacing the reference to allies with one to "states with which France has a security commitment".[3]

Over three decades, nuclear-weapon-free zone treaties have been negotiated and concluded for the South Pacific (Treaty of Rarotonga), Africa (Treaty of Pelindaba), South-East Asia (Bangkok Treaty) and, most recently Central Asia (Semipalatinsk Treaty). They joined the 1967 Tlatelolco Treaty, which predated the NPT in establishing a NWFZ in Latin America and the Caribbean. In addition to all the NWS being required to provide more comprehensive security assurances for the parties to these NWFZ treaties, Britain, France and the United States gave substantial security assurances to Belarus, Kazakhstan and Ukraine in 1992, when these countries agreed to transfer their nuclear weapons and materials to Russia and join the NPT as NNWS.

Building on some of these later guarantees, in 1995 the NWS gave updated unilateral statements on security assurances to the CD. These were then enshrined in Security Council resolution 984 (11 April 1995), adopted just before the 1995 NPT Review and Extension Conference. In a sign of the times, the text of the qualified assurances given by Russia, as well as France, the UK and the United States had been essentially harmonized, affirming that they would "not use nuclear weapons against non-nuclear weapon states Parties to the [NPT] except in the case of an invasion or any other attack on [our country], its dependent territories, its armed forces or other troops, its allies or on a State towards which it has a security commitment, carried out or sustained by such a non-nuclear-weapon State in association or alliance with a nuclear-weapon State".[4] In addition, the US statement stated that NPT parties "must be in compliance with [their treaty undertakings] in order to be eligible for any benefits of adherence to the Treaty."[5]

China stood alone in promising unconditional security assurances to states that did not have nuclear weapons and a pledge not to use nuclear weapons first: "China undertakes not to use or threaten to use nuclear weapons against non-nuclear weapon States or nuclear-weapon-free zones at any time or under any circumstances." China, has long promoted an agreement among the NWS on no first use "pending the complete prohibition and thorough destruction of nuclear weapons". Hence, "China strongly calls for the early conclusion of an international convention on no-first-use of nuclear weapons as well as an international legal instrument assuring the non-nuclear-weapon states and nuclear-weapon-free zones against the use or threat of use of nuclear weapons".[6]

As well as referencing these five unilateral statements, resolution 984 supplied watered down positive security assurances. Instead of relying on the NWS coming to countries' assistance with their nuclear forces, as previously implied, resolution 984 "invites Member states individually or collectively, if any non-nuclear-weapon state party to the [NPT] is a victim of an act of aggression with nuclear weapons, to take appropriate measures in response to a request from the victim for technical, medical, scientific or humanitarian assistance, and affirms its readiness to consider what measures are needed in this regard in the event of such an act of aggression."

Adopted unanimously by the Security Council, resolution 984 was noted in paragraph 8 of Decision 2 on Principles and Objectives for Nuclear Non-Proliferation and Disarmament adopted by the 1995 NPT Review and Extension Conference. Calling for "further steps" on NSA, the NPT parties agreed that "these steps could take the form of an internationally legally binding instrument".

By contrast, the consensus final document adopted by the 2000 NPT Review Conference stated only that "legally binding security assurances by the five nuclear-weapon states to the non-nuclear weapon states Parties to the [NPT] strengthen the nuclear non-proliferation regime" and called for recommendations to be made to the 2005 Review Conference.[7]

This bland statement did not fully reflect the debate on security assurances in 2000. Egypt, for example, had put forward a comprehensive working paper with seven principles: recognition of the threat posed by nuclear weapons; a trigger mechanism to ensure Security Council response to threats of attacks; commitment by the Security Council to take effective collective measures to prevent such threats and suppress aggression involving nuclear weapons; the renunciation by the P-5 of their Security Council veto with regard to security assurances; the commencement of negotiations in the CD on a legally binding treaty; an unconditional commitment by the NWS not to use or threaten to use nuclear weapons against those NNWS parties to the NPT that do not possess or place nuclear weapons on their territories; and an undertaking in a joint statement by the NWS not to use or threaten to use nuclear weapons against NNWS parties of the NPT or a NWFZ "at any time or under any circumstances" pending negotiation and adoption of a legally binding treaty.[8]

South Africa, at the 1999 PrepCom to the 2000 Review Conference, had proposed a draft protocol to the NPT on the prohibition of the use or threat of use of nuclear weapons. Jean du Preez, a South African diplomat at the time, noted that this protocol "was unique in several regards" and utilised the qualification relating to compliance with the NPT that the United States had insisted on in 1995.[9]

During the late 1990s - and more explicitly after the 9/11 terrorist attacks - the statements from representatives of the American, British and French governments have pushed at the limits of the security assurances they provided in 1995. As Du Preez argued, "the role of US nuclear weapons has evolved from its broad Cold War mission of deterring 'communist aggression' to a present-day policy of deterring, preempting, and punishing CBRN [chemical, biological, radiological and nuclear weapons] proliferators (not limited to users) and terrorists."[10] The US and British postures after 9/11 generated particular concern, as they seemed to entail not only the first use of nuclear weapons, but also the threat and use of nuclear weapons against NNWS, even if they were party to the NPT. British officials denied this was inconsistent with their declared security assurances under resolution 984, frequently arguing that it was necessary to retain ambiguity about the possible circumstances for using nuclear weapons since instilling uncertainty in the minds of potential aggressors was central to the operation of the UK's deterrence posture.

In the wake of the failure of the 2005 NPT Review Conference and with heightened concerns about the erosion of the political and moral taboo on using nuclear weapons that had developed during the cold war, a number of states have sought to revive proposals for legally binding security assurances. As detailed by Michael Spies in his review of NPT-related proposals in this issue of Disarmament Diplomacy, the positions are still stalemated, notwithstanding the New Agenda Coalition resubmitting a draft NPT protocol banning the use of nuclear weapons against NNWS, based on the earlier South African draft, which in turn had been tabled at the doomed 2005 Review Conference.[11]

Looking Forward: Security Assurances for Everyone

The problem with the traditional approaches on security assurances is that they are stuck in a time warp. They still treat the five NPT-recognized NWS as both primary threat and primary source of assistance. Yet the world has moved on. There are now eight, possibly nine, states that possess nuclear weapons, and many governments - including the NWS, as illustrated in recent speeches by US President Barack Obama and UK Prime Minister Gordon Brown - take seriously the potential threat of nuclear terrorism by non-state actors if they are able to steal or buy on the black market a nuclear explosive device or the requisite fissionable materials to make one. It is necessary to strengthen confidence in mechanisms to deter the use of nuclear weapons and make the security assurances regime apply to actors outside the NPT, without appearing to confer additional status on non-NPT nuclear weapon possessors India, Israel and Pakistan.

As noted above, the doctrines and policies regarding nuclear deterrence and potential use put forward by officials from some of the NWS during the two decades since the end of the cold war have given rise to serious concerns among the NNWS. In particular, the Bush administration's 2001 Nuclear Posture Review and 2002 National Security Strategy, combined with efforts to develop new types of weapon such as a nuclear-tipped bunker buster[12] led many to fear that the threshold for the use of nuclear weapons was being lowered. These developments as well as the risks of nuclear terrorism have led many to conclude, as President Obama eloquently noted in Prague: "In a strange turn of history, the threat of global nuclear war has gone down, but the risk of a nuclear attack has gone up."

What is needed now is a new approach to security assurances that takes into account the different kinds of nuclear threat faced by all of us and the responsibility we all share in preventing the use of nuclear weapons whomsoever is the target of such threats or attacks. We need a universal approach to security assurances that will provide genuine confidence and greater security not only to the non-nuclear-weapon states, but also to people living in states that possess nuclear weapons. We need security assurances that stigmatize and, in effect, outlaw the use of nuclear weapons for everyone, as that will be an essential step towards building "the peace and security of a world without nuclear weapons" that President Obama and most governments and civil society publicly advocate. In other words, we need security assurances for everyone, with specific and shared rights, obligations and responsibilities.

While the practical steps of verified reductions, disablement and dismantlement of nuclear arsenals are vitally important in the process towards the irreversible denuclearization of national and international security, they will take time. Similarly, it is becoming increasingly accepted that the concept of a multilaterally-negotiated, universally applicable Nuclear Weapon Convention is realistic and achievable, but that will also take time - though I see no reason why I should not fully expect to celebrate this achievement in my lifetime! Until such a treaty is in place, the few countries still possessing nuclear weapons will need to keep them safe pending their total elimination.

As nuclear arsenals are reduced, the real tipping point will come when the weapon states understand and demonstrate that there is no role for nuclear weapons in their doctrines and policies. An early step - and one that should now be pursued by everyone - is to recognize in law the widely accepted fact that any use of nuclear weapons would be a crime against humanity.

The NPT does not address use, but the International Court of Justice (ICJ) has deliberated on this question. In its landmark advisory opinion of July 1996, the ICJ found that in almost all situations the use of nuclear weapons would violate international humanitarian law.[13] A possible loophole was left open regarding state survival. The avowed deterrence doctrine of the UK now uses similar language to justify why it intends to procure the next generation of Trident. Having been reintroduced in a cold war setting, docrines for using nuclear weapons for pre-emption or retaliation are likely to remain on (or under) the table. Though some leaders may choose not to evoke such options in public, the rest of the world knows that a future election could install pro-nuclear hawks that could try to revive these doctrines. International law can help us to close the loopholes by demonstrating our collective resolve to classify nuclear weapons as inhumane weapons and take the possibility of their lawful use off the table once and for all.

Declaring the use of nuclear weapons a crime against humanity would not eliminate nuclear dangers overnight, but would have major impact in taking nuclear weapons off the lustrous list of objects of political status and desire. They would then truly be treated as weapons of terror that no sane or civilized person would want or be able to use. Those clinging to nuclear deterrence need to wake up to the 21st century. As recognised by the eminent US nuclear negotiator Max Kampelman, who advised Presidents Carter and Reagan, this approach would arm the international community more effectively against terrorists and their suppliers. If you want to deter the terrorist or 'rogue' state from using nuclear weapons, as advocates of nuclear deterrence claim, one of the most effective ways, consistent with post-Nuremburg accountability and the recently-established International Criminal Court (ICC), would be to make the use of nuclear weapons a crime against humanity and hold suppliers and traffickers to account as well as governments and state and non-state leaders.

Despots and terrorists most fear and hate the idea that they could be held personally accountable and subjected to a humiliating public trial and punishment. Declaring nuclear weapons use a crime against humanity would take the ICJ advice to its logical conclusion and strengthen the NPT. It would greatly reinforce deterrence, denial and nonproliferation, and provide a nondiscriminatory and humanitarian security assurance for all.

That would be the 'negative' part of the new security assurances approach. It would need to go together with a positive security obligation on all states and people to render assistance to a state that is threatened or attacked with nuclear weapons and also to track down and bring to justice those responsible for the threat or use of nuclear weapons, including participants in the delivery and decision-making and suppliers or facilitators of the bomb-makers, materials, threats or attacks.

Such an approach extends the commitments and responsibilities of negative and positive security assurances to everyone, not just the five NPT-recognised nuclear weapon states. Though resolution 984 advanced beyond resolution 255 in moving away from the implication that the NWS should come to countries' aid with their nuclear capabilities and in also acknowledging that they were not the only states capable of providing assistance, the traditional approach to security assurances still leaves an uncomfortable impression that the NNWS are supplicants and the NWS are granting favours because their nuclear weapons give them that power. In the 21st century, when we are trying to devalue nuclear weapons, we should not continue to endow them with magical security properties or treat their possessors as having special status with unique rights and responsibilities.

Unlike the nuclear weapon convention, which would have to be negotiated multilaterally and would be likely to be complex and time-consuming, with many political, technical, verification and implementation challenges to be worked out, the process of stigmatising and outlawing the use of nuclear weapons offers opportunities for courageous leaders to take unilateral steps that build towards creating a multilateral norm. This is an important initiative that non-nuclear weapon states - and indeed citizens and public movements - can declare support for, and help to build up a strong ethical norm and create a breathing space for nuclear disarmament initiatives to take hold.

It has been customary for some analysts and government officials to sneer that declaratory policy isn't worth the paper it's written on because it can be reversed. But of course most negotiated treaties also contain a withdrawal clause, which these days usually cites jeopardy to a nation's supreme national interests as a legitimate reason for leaving a treaty. In history and practice, declaratory policy depends for its effectiveness on whether it is taken up widely and embedded in customary law, norms and practice. For nuclear weapon holders, there may even be a perverse logic that they could find reassuring as they wean themselves away from nuclear reliance. As long as some nuclear weapons exist physically, everyone would know that they might be used, despite any nuclear taboo or declaration.

It will take time to reduce and eliminate the existing arsenals, and while this is happening, the existence of physical weapons in storage in one or a few countries might continue to offer some form of existential deterrence (to the extent that the concept of nuclear deterrence holds at all). What this won't do is provide a status-enhancing justification for holding onto nuclear weapons for all time just in case. During the transition period prior to conclusion of a nuclear weapons treaty, the operational military and security policies of the NWS will be to all intents and purposes non-nuclear, enabling the countries concerned to develop and gain confidence in all the other tools that contribute to actual deterrence and security in the real world.

How to outlaw the use of nuclear weapons

There are several approaches that could be taken. One route could be to amend the definition of 'crimes against humanity' in the 1998 Rome Statute that established the ICC. Another option, advocated by Max Kampelman, would be to get legislation through the Security Council to recognize or make the use of nuclear weapons a crime against humanity.

Another usual initiative would be for individual governments to declare as a matter of national policy that they would treat any use of nuclear weapons as a crime against humanity. Once such unilateral declarations had reached critical mass, the norm would become effectively embedded into customary international law. Addintionally, governments and civil society might look at ways to reinforce understandings in international humanitarian law to include the use of nuclear weapons. These approaches are compatible, though some may prove quicker or more fruitful than others.

Amending the 1998 Rome Statute

There were attempts to have nuclear weapons included in the definition of crimes against humanity when the Rome Statute was being negotiated. They failed for two reasons that need not apply now. First, focussing on the weapons rather than their use led many to fear that the initiative was unenforceable or premature, because it would criminalize those responsible for the safety and handling of nuclear weapons in the NWS and other possessor states and this would be problematic if imposed before there was a nuclear weapon convention to mandate the processes necessary for eliminating and abolishing the weapons. Second, there were concerns that there might be retrospective attempts to put the United States on trial for using nuclear weapons on Hiroshima and Nagasaki. The ICC does not work retrospectively; nor should it. Attempts by some NGOs to pursue this idea or to demand apologies from US leaders may be well-meaning, but they are counterproductive and could get in the way. It is more important now to find the most effective way to prevent future crimes against humanity through the use of nuclear weapons.

Crimes against humanity, as defined by the Rome Statute of the ICC Explanatory Memorandum, "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority..."

Amending the definition of crimes against humanity to include the use of nuclear weapons would take a positive vote by a two-thirds majority of states party to the Rome Statute. Of the 108 states parties to the ICC (at time of writing), the majority are NNWS that could start this ball rolling with a view to putting it on the agenda for debate and adoption at the first Review Conference for the Rome Statute, scheduled to be held in Kampala, Uganda in early 2010.[14]

UN Security Council resolution on nuclear weapon use

Any attempt to get a resolution on nuclear weapons use through the Security Council needs to take into account the veto power of the five NWS that are permanent members of the Council. Such a route would require civil society and NNWS to build pressure for the Council to act on this, and advocates would need to be persistent and tacticaly astute, as it would be unlikely to get through first time round. However, in an era of heightened concerns about terrorism and a growing surge of support for nuclear weapons to be abolished, no-one should write this idea off as impossible. Remember resolution 1325 on Women, Peace and Security, which was adopted unanimously on 31 October 2000 as the result of a brilliantly conceived and determined strategy carried out by women's groups and a few key NGOs and governments.

A resolution of this kind would probably require a preamble linking the use of nuclear weapons with threats to international peace and security and quoting from past documents, recognizing that the most effective way to insure against the use or threat of use of nuclear weapons is to accomplish their total elimination and abolition. There would likely need to be something that acknowledges that the resolution does not apply to those responsible for the safe storage and handling of nuclear weapons pending the conclusion of an international instrument or treaty providing for their total prohibition and elimination, but only to procurement, supply and operational activities involving nuclear explosive devices with the intention of using them. Then the resolution would have to set out clearly the obligation on all states - and through the enactment of national legislation on all persons - not to use or threaten to use nuclear weapons. This should then be followed by text setting out the obligations and responsibilities on all to prevent the use of nuclear weapons, to assist anyone threatened or attacked with nuclear weapons, and to bring the perpetrators and their suppliers and enablers to justice.

A recent precedent for this approach is resolution 1540 on Weapons of Mass Destruction (April 2004), adopted by the Security Council to strengthen existing treaties and extend the obligations and penalties to individuals and companies, and thereby to address non-state terrorists as well as states.

Conclusions

Advocates can sometimes get so fixated on a particular objective that they fail to realize that achieving it would no longer be a significant step forward, and might even delay the accomplishment of the greater goal. So it is with non-proliferation. When someone mentions security assurances, many jump either to the cold war objective of a negotiated multilateral treaty enshrining security assurances from the NWS to the NNWS, or to the long-standing General Assembly resolution sponsored by India on a 'Convention on the Prohibition of the Use of Nuclear Weapons'. They then take up familiar but unproductive stances for or against such treaties. Similarly, many have spent so long advocating that the NWS make no-first-use agreements that this is what they assume when they hear arguments for the use of nuclear weapons to be outlawed.

So let's be clear. While I recognize why a no-first-use agreement appears attractive as a way to reduce the role of nuclear weapons in security doctrines, what could have been a very important step to take during the cold war would only slightly reduce nuclear dangers now. The adoption of no first use agreements would be compatible with second strike concepts of deterrence. By legitimizing the retaliatory use of nuclear weapons when deterrence fails, it would impede nuclear disarmament and keep alive the dangerous illusion that some uses of nuclear weapons are okay. But any such retaliation would indiscriminately kill large numbers of civilians. It would amount to a bloodthirsty act of vengeance, not a rational means of defence. Keeping this option in security policies muddies the moral message and undermines efforts to stigmatise nuclear weapons.

So let's leave the cold war thinking behind, and take a fresh look at security assurances and how we can all take responsibility to prevent the use and threat of use of nuclear weapons.

Notes

Notes

[1] For a more detailed summary see Michael Spies, "Proposals, Positions and Prospects: Issues facing the 2010 NPT Review Conference", in this issue of Disarmament Diplomacy 90, pp 12-29.

[2] Mountbatten Centre, University of Southampton and Monterey Institute for International Studies, NPT Briefing Book (2008 Edition), Part I p 15.

[3] Official Records of the UN General Assembly, Twelfth Special Session, Plenary Meetings, 9th meeting.

[4] While the longer statements on security assurances delivered to the CD on 6 April 1995 differed in the way they contextualised the issues, the language of this operative paragraph was the same for Britain, France, Russia and the United States. See NPT Briefing Book, op. cit. pp L1-3.

[5] Stephen Ledogar, statement to the CD on behalf of the United States, 6 April 1995, CD/PV.705.

[6] Sha Zukang, statement to the CD on behalf of China, 6 April 1995, CD/PV.705.

[7] See Rebecca Johnson, "The 2000 NPT Review Conference: A delicate, hard-won compromise", Disarmament Diplomacy 46 (May 2000), pp 2-21, especially pp 9-10.

[8] Johnson, Ibid. p 10.

[9] Jean du Preez, The Demise of Nuclear Negative Security Assurances, paper delivered at the Article VI Forum, 28 September, 2006, Ottawa, p 9, available at http://cns.miis.edu/programs/ionp/pdfs/visions_of_fission.pdf

[10] Du Preez, ibid., p 1.

[11] See Michael Spies, op. cit. The New Agenda Coalition's draft protocol is contained in NPT/CONF.2005/WP.61.

[12] The Pentagon's project to design and build a robust nuclear earth penetrator (RNEP) eventually foundered due to Congressional decisions to refuse to fund its development.

[13] International Court of Justice Reports 1996, p 225. [Reported for July 8, 1996, General List No. 95]. The full decision, documentation and dissenting decisions also formed the Annex to 'Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons', Note by the Secretary-General, United Nations General Assembly A/51/218, October 15, 1996 pp 36-37.

[14] See www.iccnow.org/?mod=review

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