Catching the flies, the mosquitos and the elephants: Arresting nuclear proliferation, terrorism, and warfighting through a nuclear weapons convention.
Alyn Ware and Neha Naqvi
A huge chasm exists between the approach of key Nuclear Weapons States and the majority of countries and peace organizations regarding nuclear threat perceptions and how to deal with these. The NWS, in particular the United States, focus on the increased threats of nuclear proliferation and possible non-State acquisition and use of nuclear weapons.
In his address to the US Nation (and to the world) on 28 January 2003, US President Bush, for example, warned that:
Today, the gravest danger in the war on terror, the gravest danger facing America and the world, is outlaw regimes that seek and possess nuclear, chemical, and biological weapons. These regimes could use such weapons for blackmail, terror, and mass murder. They could also give or sell those weapons to terrorist allies, who would use them without the least hesitation.
The majority of other countries, on the other hand, including those represented by the Non-Aligned Movement, perceive a growing and much more threatening danger in the nuclear doctrines and weapons developments of the Nuclear Weapons States, which collectively possess approximately 30,000 nuclear weapons many on high alert, are extending nuclear doctrines to include additional rationalisations for their threat or use (nuclear warfighting plans), and are developing new nuclear weapons.
Simply put, the NWS want to catch the mosquitos (non-State actors/terrorists) and the flies (countries potentially developing nuclear weapons programs) but ignore the elephants (themselves, their nuclear arsenals and their warfighting plans), and believe that the non-nuclear States pay too much attention to criticizing the elephants and not enough to addressing the dangers from the flies and mosquitos.
In addition, the US is bypassing multi-lateral institutions in its approach to address these dangers and has instead initiated a number of unilateral and coalition-based non-proliferation and counter-proliferation efforts, including in the use of force against Iraq and the development of interdiction efforts through the Proliferation Security Initiative.
The majority of other countries however, focus more on the necessity to secure disarmament and non-proliferation through multilateral instruments and institutions.
The New Agenda Coalition  has attempted to bridge these two approaches. In its draft resolution to the United Nations General Assembly in 2003  the New Agenda Coalition (NAC) noted the link between all three nuclear threats “the retention of nuclear weapons carries the inherent risk of proliferation and falling into the hands of non-State actors”, and argued that “nuclear non-proliferation and nuclear disarmament are equally important and mutually reinforcing processes requiring continuous irreversible progress on both fronts.” In addition, the NAC resolution supports a range of unilateral, bilateral and multilateral processes and mechanism for non-proliferation and disarmament noting, for example, that “unilateral and bilateral nuclear disarmament measures complement the treaty-based multilateral approach towards nuclear disarmament.”
The NAC resolution continues with a laundry list of disarmament and non-proliferation steps which, if enacted, would provide considerable progress towards eliminating the risks of nuclear proliferation, terrorism and warfighting.
However, the NAC approach has two shortcomings. Firstly, the laundry list is incomplete. It does not include a number of requirements for eliminating nuclear terrorism, proliferation, warfighting doctrine and nuclear arsenals themselves, such as:
the criminalization of nuclear weapons possession, threat or use and mechanisms for addressing individual responsibility
a phased program for reducing and eliminating nuclear weapons
an agency for implementing nuclear disarmament obligations
mechanisms and procedures to ensure compliance with disarmament and nonproliferation obligations
national implementation measures including legislative requirements and national authorities responsible for implementation of obligations
Secondly, the NAC resolution is structured as a list rather than an integrated disarmament program or package. The advantage of this is that States could elect to take action on one or more of the items prior to them being willing to act on the whole package. The disadvantage is that States will differ on which items they are willing to act upon, and without agreement, little progress might in fact be made on any of the items.
The Nuclear Weapons Convention (NWC) approach, advocated in a United Nations resolution adopted annually  and further developed in the Model Nuclear Weapons Convention  and in Security and Survival: The Case for a Nuclear Weapons Convention  , focuses on the entire package of mechanisms and measures that would be required to achieve the complete elimination of nuclear weapons and prevention of nuclear proliferation and terrorism.
In addition, it combines the advantages of the NAC disarmament and non-proliferation list, with the advantages of a negotiated package. In a negotiated package, States are often willing to adhere to certain steps that they would not otherwise be willing to accept in return for securing the agreement of other States to other steps they want to see included. Thus, negotiations towards a nuclear weapons convention could achieve a number different disarmament steps that a solely step-by-step approach is unable to achieve.
On the other hand, the provisions of an integrated disarmament program or package are generally much more complicated than those for a more simple disarmament step, and the completion of negotiations could thus take a long time. For this reason, the NWC approach envisages the completion of negotiations and implementation of certain disarmament and nonproliferation provisions prior to the completion of negotiations on the complete NWC.
New Zealand, one of the New Agenda countries, has thus supported the NWC approach, noting that it …allows for [such] a programme of intermediate steps towards the final goal of a convention banning nuclear weapons.
Nuclear terrorism and a Nuclear Weapons Convention
States are currently negotiating a Draft Convention on Nuclear Terrorism  which would provide procedures for dealing with seized nuclear material and provide cooperation on criminal investigations and prosecutions. However the negotiations are floundering on the issue of whether the draft convention should address the current dangers of un-safeguarded nuclear facilities of the nuclear weapons States, their stockpiles of nuclear weapons and fissile material holdings.
Negotiations are also floundering on the issue of the threat or use of nuclear weapons by the armed forces of a State. A number of non-nuclear States believe that, in light of the 1996 ruling of the International Court of Justice, any threat or use of nuclear weapons would be illegal whether that be from a non-State organisation or a NWS and thus would be an act of terrorism that should be covered by the draft convention.
These problems would be overcome through negotiations on a NWC, which would include a non-discriminatory prohibition on threat or use of nuclear weapons made by either State officials/agents or non-State actors, as well as safeguarding the nuclear facilities of all countries with such facilities, including the NWS, and a phased program for eliminating their nuclear stockpiles.
In addition, a NWC would make policing of provisions against nuclear terrorism much more effective. Frank Barnaby notes that “The ability of the intelligence community to identify and predict threats of terrorist attacks with weapons of mass destruction is crucial if such attacks are to be prevented.”  International cooperation, increased transparency of nuclear holdings and infrastructures and enhanced societal verification is necessary in order to develop such intelligence. The verification systems established under a nuclear weapons convention would make it easier to discover a potential terrorist threat from diversion of fissile material or technical expertise in time to prevent the building of a bomb.
Nuclear proliferation and a Nuclear Weapons Convention
The belief expressed in the NAC resolution that the continued existence of nuclear weapons stimulates proliferation appears to be supported by recent examples of nuclear weapons proliferation. When India openly tested nuclear weapons in 1998, thus announcing its nuclear capability, the Foreign Ministry released a statement saying that:
the refusal of the nuclear weapon states to consider the elimination of nuclear weapons...continues to be the single biggest threat to international peace and security. It is because of the continuing threat posed to India by the deployment of nuclear weapons that we have been forced to carry out these tests.
Further-more, the new counter-proliferation policies and practices of the NWS – particularly the pre-emptive use of force undertaken by the US and the UK - appear to further stimulate the proliferation of nuclear weapons. When Korea announced its withdrawal from the Non-Proliferation Treaty, for example, the Korean Committee for Solidarity with World Peoples, a government supported 'people's committee' tasked with informing international civil society about North Korean perspectives on security issues, noted that:
Neither strong international public opinion or big country’s opposition to war nor the UN charter could prevent the U.S. from launching the Iraqi war. It is a serious lesson the world has drawn from the Iraqi war that a war can be averted and the sovereignty of the country and the security of the nation can be protected only when a country has a physical deterrent force, a strong military deterrent force capable of decisively repelling any attack to be made by any types of sophisticated weapons.
A NWC would remove any rationalizations for proliferation such as those advanced by India, by providing a phased program for disarmament and non-proliferation that would apply to all States. It would include special provisions to meet the security needs of specific States, such as Israel or North Korea, for whom nuclear weapons may provide a perceived deterrent against other weapons of mass destruction or conventional attack from neighbouring or hostile countries.
For these reasons, Pakistan, India, North Korea and other States of concern such as Iran and Saudi Arabia, all support a Nuclear Weapons Convention.
India has, for example, called on .. all nuclear weapon states and indeed the international community to join with it [India] in opening early negotiations for a Nuclear Weapons Convention so that these weapons can be dealt with in a global non-discriminatory framework.
Mr. Muhammad Siddique Khan Kanju, Minister of Foreign Affairs, Pakistan said that Nuclear weapons must be banned and eliminated just as chemical and biological weapons have been prohibited. As a first step (the adoption) of universal and legally binding multilateral agreement committing all states to the objective of the complete elimination of nuclear weapons.
More importantly, a NWC would include many mechanisms, in addition to those in current non-proliferation regimes, to prevent proliferation and respond to possible outbreak, such as preventive controls on all nuclear facilities, procedures to ensure compliance including verification, dispute resolution, physical disarmament measures, and collective action including sanctions.
Using the NWC to make progress in regional crisis areas
Multi-lateral nuclear disarmament consultations involving India, Pakistan and China focusing on the NWC could provide a vehicle to prevent further deployment of Indian and Pakistani nuclear weapons, secure their accession to the Comprehensive Test Ban Treaty, and generate pressure on the other NWS to join negotiations on a NWC.
While there are many difficulties facing bilateral negotiations between India and Pakistan due to their conflict over Jammu/Kashmir, both States support a NWC as does China. India’s insistence that nuclear policy has to be regarded in the context of the nuclear policies of the other NWS would be acknowledged in consultations which involved China and could address global nuclear disarmament, while at the same time including regional objectives. Former Pakistan Prime Minister Nawaz Sharif’s call for five-nation (China, India, Pakistan, Russia, and the United States) consultations  could be adapted into multi-layer consultations involving three-party and five party talks – similar to the way the six nation talks on North Korea have been progressing with bilateral talks accompanying the multi-party talks.
The NWC could also assist in the North Korean situation. The US response to North Korea’s announced withdrawal from the Non-Proliferation Treaty as been to initiate the Proliferation Security Initiative, a discriminatory approach calling for interception of North Korean vessels that might be involved in nuclear weapons or missile technology transit. The fact that the NWS at the same time assert their ‘rights’ to transit nuclear weapons, nuclear materials and missile technology, combined with the US preemptive use of force doctrine, merely reinforce North Korea’s concerns about the discriminatory approach of the NWS to proliferation and the risk to North Korea of military attack.
North Korean support for a NWC is likely to be based on a number of aspects of the NWC including its nondiscriminatory prohibition on nuclear weapons, the security assurances against the threat or use of nuclear weapons that would be included and the range of legal mechanisms to deal with disputes regarding non-compliance issues which serve as a preventive to the unilateral use of force.
North Korea is under no illusions that the USA is ready to support a NWC, and it is primarily from the USA that North Korea requires security guarantees. However, support for the NWC from Japan and South Korea (China already supports) would assist in building a non-discriminatory norm against nuclear weapons in the region and would help North Korea develop confidence to engage more constructively in multi-party negotiations.
The New Agenda Coalition has stated that “the existence of nuclear weapons is a threat to the survival of humanity and that the only real guarantee against the use or threat of use of these weapons is their complete elimination and the assurance that they will never be used or produced again.” 
A Nuclear Weapons Convention would provide the universal and multilaterally negotiated treaty, or framework of agreements, that would achieve such an elimination and prohibition of nuclear weapons. Such a convention would provide the only assurance against the proliferation of nuclear weapons and their use by a State or non-State actor. Negotiations leading toward such a convention should commence without any further delay.
Alyn Ware is a Consultant for the Lawyers’ Committee on Nuclear Policy and the International Association of Lawyers Against Nuclear Weapons. He was one of the drafters of the Model Nuclear Weapons Convention circulate by the United Nations and is co-author with Merav Datan of Security and Survival: The Case for a Nuclear Weapons Convention.
Neha Naqvi is a fifth year law student at the NALSAR University of Law Hyderabad, India
 The governments of Aotearoa-New Zealand, Brazil, Egypt, Ireland, Mexico, South Africa and Sweden
 A/C.1/58/L.40 Towards a nuclear-weapon-free world: a new agenda
 Follow-up to the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, United Nations General Assembly Resolutions 49/75 K, 51/45 M, 52/38 O, 53/77 W, 54/54 Q, 55/33 X, 56/24 S, and 57/85.
 Merav Datan and Alyn Ware (principal authors), IPPNW, Massachusetts, 1999
 New Zealand explanation of vote on United Nations General Assembly Resolution 49/75 K, 1996
 See Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Seventh session (31 March-2 April 2003), UN Doc Supplement No. 37 (A/58/37), pages 11-12
 These are not addressed in the current draft convention.
 Waiting for Terror: How Realistic is the Biological, Chemical and Nuclear Threat, Oxford Research Group, 2001
 Security and Survival: The Case for a Nuclear Weapons Convention, IPPNW, 1999
 Indian Press Statement, May 15, 1998
 Korean Central News Agency, U.S. to Blame for Derailing Process of Denuclearization on Korean Peninsula (May 13, 2003), available at http://www.kena.co.jp/index-e.htm
 Support is indicated by their votes in favour of the UNGA resolutions introduced by Malaysia (see footnote 3).
 India Calls for Talks on New Treaty Limiting Nuclear Arms, John F Burns, New York Times, 1 June 1998
 Statement by the Minister of State for Foreign Affairs at the General Debate in the First Committee of the 52nd Session of the UN General Assembly, 17 October 1997
 India, Pakistan and Nuclear Weapons: A way out of the quagmire, Lawyers’ Committee on Nuclear Policy, http://www.lcnp.org/disarmament/IndiaandPakistan.htm
 UN Draft Resolution A/C.1/58/L.40 Towards a nuclear-weapon-free world: a new agenda. Adopted 4 November 2003.