Missile Control under a Nuclear Weapons Convention
by Alyn Ware
The most significant threat from ballistic missile programmes is the fact that they give the country developing the missiles the capability to deliver a weapon of mass destruction – most notably a nuclear weapon – to targets in both neighbouring countries and those further a-field.
While there are proposals to prohibit ballistic missiles and control other missiles (such as cruise missiles), the early achievement of such aims is most unlikely given the continuation of space launch programmes which use rocket technology easily convertible to ballistic missile use, and the dual-use nature of other missiles for conventional military use.
However, the threat from missiles could be reduced considerably if progress is made on prohibiting and eliminating their most dangerous payload – nuclear weapons. By the same token, the threat from nuclear weapons as they are being reduced pursuant to elimination would also be minimized if simultaneous progress is made on control and elimination of missiles – their principle means of delivery.
The importance of addressing both nuclear weapons and their delivery systems is recognized in the Non-Proliferation Treaty (NPT), the pre-amble of which calls for “the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament under strict and effective international control.”
The importance of addressing both weapons and delivery systems is also recognized in current efforts being made to prevent the proliferation of both nuclear weapons and their means of delivery through such collaborative actions as the Missile Technology Control Regime, the NPT, the Proliferation Security Initiative, and UN Security Council Resolution 1540. However, such co-ordinated action is being undertaken in a predominantly discriminatory manner with those already possessing nuclear weapons and ballistic missile programmes being permitted to maintain – and even advance – their programmes while those without such programmes being prohibited from acquiring them.
Such a discriminatory approach is doomed to fail – for a number of reasons. First, the maintenance of nuclear weapons and missile programmes by some States prevents the development of robust verification and control mechanisms that would prevent the diversion of technology to other States. There will always be possibilities for other States to steal, buy or copy technology and/or materials that would enable them to develop their own programmes. Second, the continued possession of nuclear weapons and their delivery systems creates a threat to other States which can prompt them into developing their own nuclear weapons and delivery systems in response – in order to deter a nuclear attack from those already possessing such weapons. Third, the fact that some States derive a special status from possession of such weapons 1 creates an impetus for others to desire to also acquire such elite status. The celebrations of Indians when their government tested nuclear weapons demonstrated that desire to achieve a higher status and the joy when such status was achieved. Fourth, the maintenance of nuclear deterrence doctrines by the most powerful States affords nuclear weapons an even greater political power than the possession of large conventional military forces, and a greater power than if they were prohibited and considered universally illegitimate. The indication of such political power is evident in a number of situations, including the enhanced negotiating position North Korea attained once it started developing ballistic missile and nuclear weapons programmes, and the fact that the five most powerful countries in the Security Council – the Permanent Five – are all nuclear weapon states (NWS). Finally, the continued justification by possessing States of their nuclear weapons and ballistic missile programs makes it much more difficult to develop the global norm against these weapons which would assist in the development and implementation of both domestic and international law to prohibit their development.
Thus, a comprehensive non-discriminatory approach to both nuclear disarmament and missile control is required. This is the approach being advocated by those proposing negotiations on a nuclear weapons convention (NWC).
What is a Nuclear Weapons Convention?
In the strict sense, a nuclear weapons convention is an international treaty or package of agreements, achieved through negotiations by States, prohibiting the use, threat of use, development, testing, production, stockpiling and transfer of nuclear weapons and providing for the elimination of nuclear weapons and their delivery systems.
In the wider sense, a nuclear weapons convention is much more than just a treaty or package of treaties. It would represent the codification, i.e. the affirmation and implementation in international law, of a customary norm against nuclear weapons. It would give effect to a universal understanding that nuclear weapons are by their very nature illegitimate and thus require both prohibition and elimination. This customary norm already exists as demonstrated by the International Court of Justice (ICJ) in its 1996 Advisory Opinion which concluded that the threat or use of nuclear weapons was generally illegal. The achievement of a NWC would indicate that all States accept such a norm and are prepared to implement it.
A nuclear weapons convention would also be a vehicle for the implementation of already existing nuclear disarmament obligations, particularly those arising from the NPT and those which the ICJ affirmed as applying universally, i.e. even to non-parties to the NPT.
The adoption and implementation of a NWC would also involve a transformation of the political and security framework of the NWS, their allies, and the institutions in those. The change would be one from maintenance of nuclear weapons and deterrence policy to one of abolition and elimination. Once achieved, this transformation of personnel and operating systems in foreign ministries, defence ministries, nuclear weapons manufacturing facilities, and research and development laboratories would be difficult to then turn back again to nuclear weapons development.
The abandoning of nuclear weapons would also indicate a wider change in security doctrine. Nuclear weapons arose from a search for increasingly destructive weapons to fulfill security doctrines based on the development of superior force to an enemy in order to deter or overwhelm them in a conflict. Thus, prohibiting nuclear weapons would indicate an abandonment of the futile search for superior military power and an implementation of alternative doctrines based on common security, international law and the use of international mechanisms for conflict resolution and war prevention.
A Model Nuclear Weapons Convention
A NWC is much more than just a treaty or package of treaties. However, framing the development of a NWC through the lens of a comprehensive treaty can be helpful in identifying the political, legal and technical elements that will be required for the achievement and maintenance of a nuclear weapons free world. For this reason, in 1996 an international consortium of lawyers, scientists and disarmament experts, led by the Lawyers' Committee on Nuclear Policy, began work on drafting a Model Nuclear Weapons Convention.
The drafters had to consider the varied perspectives and security concerns of all States currently relying on nuclear weapons as part of their security doctrine – whether these were NWS, nuclear capable States, or allies of the NWS that have accepted extended deterrence doctrines. The drafters had to build into the treaty mechanisms that would ensure compliance with disarmament obligations, help States develop confidence that other States were complying, respond effectively to disputes or violations of the treaty, prevent the development of future nuclear weapons capability, ensure that individual as well as State responsibility would be established and ensure that sensitive information – military and commercial – would not be exposed.
The resultant Model NWC was submitted to the United Nations by Costa Rica in October 1997 and circulated by the UN in November 1997 (UN Document A/C.1/52/7).
The key components of the Model NWC (treaty) are:
The treaty contains both negative obligations, i.e. those actions which are prohibited, and positive obligations, i.e. those actions which are required of States Parties.
Negative obligations include the prohibition of the development, testing, production, stockpiling, transfer, use and threat of use of nuclear weapons, as well as preparations for use of nuclear weapons and the development of nuclear weapons grade material (plutonium or highly enriched uranium).
Positive obligations include the requirement for NWS to destroy their arsenals in a series of phases over fifteen years and requires delivery vehicles to be destroyed or converted to make them non-nuclear capable. States are also required to participate in activities aimed at transparency and education for the purpose of detecting and preventing prohibited activities and to report violations of the Convention, co-operate with the implementing Agency, and enact domestic legislation for implementation
Rights and Obligations of Individuals
The drafters introduced a somewhat novel but vital aspect, not found in other international treaties at the time, of applying the obligations to individuals as well as States. This was based on the conviction by drafters that the prohibition of nuclear weapons would require the criminalization as well as the delegitimisation of nuclear weapons.
More recently, the United Nations Security Council, through Resolution 1540, recognized the need to address individual responsibility by specifically calling on States to adopt criminal legislation with respect to weapons of mass destruction. However the Security Council only applies this to non-State actors involved in the proliferation of such weapons. The treaty calls for criminal responsibility to apply to both State and non-State actors and to both the proliferation of nuclear weapons and to the current possession and development of such weapons.
The treaty also includes measure to protect individuals who provide information on possible violations of the treaty. This is in order to prevent situations like those faced by Mordechai Vanunu who was imprisoned for 14 years for exposing Israel's nuclear weapons programme and is still unable to leave Israel .
The treaty proposes the establishment of an agency to implement the treaty. It would be responsible for verification, ensuring compliance, and decision making, and would comprise a Conference of all States Parties, an Executive Council and a Technical Secretariat.
The treaty calls for verification through declarations and reports from States, routine inspections, challenge inspections, fixed on-site sensors, satellite photography, radionuclide sampling and other remote sensors, information sharing with other organizations, and citizen reporting (societal verification). Whistleblower protection would be available to citizens reporting suspected violations of the convention.
The Agency would establish an international monitoring system to gather information, and will make most of this information available through a registry. Information which may jeopardize commercial secrets or national security will be kept confidential.
The treaty includes provisions for consultation, co-operation and fact-finding to clarify and resolve questions of interpretation with respect to compliance and other matters. A legal dispute could be referred to the ICJ by mutual consent of States Parties, and the Agency itself would be empowered to be able to request an advisory opinion from the ICJ.
Compliance and Enforcement
The treaty provides incentives for compliance plus a series of graduated responses for non-compliance beginning with consultation and clarification, negotiation, and, if required, sanctions or recourse to the U.N. General Assembly and Security Council.
Phases for Elimination
The treaty outlines a series of five phases for the elimination of nuclear weapons. Steps in these phases include gradual reductions in stockpiles, de-alerting nuclear weapons systems, removing weapons from deployment, removing nuclear warheads from their delivery vehicles, disabling the warheads, removing and disfiguring the pits and placing the fissile material under international control. In the initial phases the U.S. and Russia are required to make the deepest cuts in their nuclear arsenals.
Nuclear Material and Nuclear Energy
The treaty prohibits the production of any fissionable or fusionable material which can be used to make a nuclear bomb, including plutonium and highly enriched uranium.
Low enriched uranium is permitted for nuclear energy, but the treaty includes an optional protocol which would establish a program of energy assistance for States Parties choosing not to develop nuclear energy or to phase out existing nuclear energy programs.
Model NWC Provisions on Missiles
The Model NWC (treaty) provides for
a) the destruction of delivery vehicles designed solely for the purpose of delivering nuclear weapons,
b) the destruction or conversion to non-nuclear use of dual-use capability delivery vehicles,
c) verification and preventive controls to be placed on dual-use capability vehicles,
d) the adoption of a protocol on prohibition of certain dual-use delivery vehicles which are deemed threatening to security regardless of whether or not they are capable of carrying nuclear warheads.
The treaty categorises delivery vehicles into two schedules according to whether they are designed solely for the purpose of nuclear weapons (Schedule 1) or whether they are dual-use capability delivery vehicles (Schedule 2). Depending on technological developments, certain delivery systems might be shifted from one schedule to another on agreement of States parties to the treaty.
The additional protocol, which would be optional, provides encouragement to States to abandon threatening missile programmes without requiring such action prior to entry into force of the treaty. It would be expected that additional States would adhere to the protocol over time - their perceived need for such missiles would be reduced as their potential adversaries also abandon such missile programmes and adhere to the protocol.
The Path Towards Nuclear Disarmament: Step-by-step, Comprehensive or Incremental-comprehensive
There are three general approaches towards achieving nuclear disarmament. The first, a step-by-step approach, entails negotiations on a limited number of initial steps towards nuclear disarmament, with additional steps being considered once the first steps are achieved. The step-by-step approach has achieved a number of concrete disarmament agreements. However, these have been limited in scope and have failed to prevent nuclear proliferation, reduce reliance on nuclear weapons doctrines by the NWS, prevent the modernization of nuclear weapons systems or give any indication that nuclear weapons may indeed be abolished in the near or medium future.
A divergent perspective calls for comprehensive negotiations on the complete prohibition and elimination of nuclear weapons. This approach has been advocated by the Non-Aligned Movement which has called on the Conference on Disarmament to “commence negotiations on a phased program of nuclear disarmament and for the eventual total elimination of nuclear weapons within a time-bound framework.” 2
However, there is some opinion that a comprehensive approach could prevent progress due to the myriad of issues and disarmament requirements that would have to be addressed before any complete disarmament agreement could be reached. In addition, the fact that some of the States possessing nuclear weapons do not yet accept comprehensive negotiations precludes the possibility of such an approach in the near future.
The NWC takes an alternative path forward, which combines the advantages of the first two approaches and has been described as incremental-comprehensive. Such an approach incorporates step-by-step measures within a comprehensive framework. This is an approach suggested – but not fully developed - by the program of action agreed at the 2000 NPT Review Conference.
Malaysia, which introduces a United Nations General Assembly resolution annually calling for negotiations towards a nuclear weapons convention, 3 notes that “ the road towards the total elimination of nuclear weapons will be a long and arduous one and would be best traveled through a series of well-defined stages, accompanied by proper verification and control mechanisms,” and that the NWC approach “ ... is, therefore, not incompatible with the step-by-step, incremental approaches already mooted by others.” 4
While it is important to concentrate international attention on concrete steps towards nuclear disarmament which are achievable in the short term, it is also important to simultaneously consider the requirements for a comprehensive nuclear disarmament regime in order to develop an international understanding of the final destination of the nuclear disarmament steps. It can be difficult to construct a path to nuclear disarmament if we do not know more precisely what will be the end goal, what might be the obstacles along the way and what might be possible paths to overcome these obstacles.
The nuclear weapons convention provides a road map to nuclear disarmament – not yet perfect or complete – but one that can assist the international community move steadily and irrevocably towards nuclear disarmament. A purely step-by-step approach, on the other hand, has been described as “ like traveling in an old jalopy with a broken steering wheel, no idea of the final destination and questionable commitment to even reaching it.” 5
Malaysia explains in more detail the incremental-comprehensive approach in a working paper prepared for the 2005 NPT Review Conference on Legal, technical and political elements required for the establishment and maintenance of a nuclear weapons free world.6
The paper notes that “ Consideration of the elements of a nuclear disarmament regime at this stage could help give direction to intermediate steps and to overcome some of the roadblocks in the current disarmament fora,” and links certain elements and steps identified in the Model NWC with the 13 disarmament steps agreed at the 2000 NPT Review Conference and the agenda for nuclear disarmament developed by the New Agenda Coalition (Brazil, Egypt, Ireland, Mexico, Aotearoa/New Zealand, South Africa and Sweden).
Political Reality and a NWC
Calls for negotiations towards a NWC – whether made by individuals, organizations, or governments – have often been dismissed as unrealistic and thus without merit. However, both claims can be refuted.
Even if it were unrealistic to expect the achievement of a NWC in the short or medium term, consideration of what would be required in a NWC would have merit. Such consideration could, for example, assist in the development of disarmament steps which, while limited, would still be valuable in their own right. In addition, consideration of the legal, political and technical elements that would be required for a NWC, and preparatory work on these, could ensure that once the political conditions are right for negotiations, they will be able to proceed much quicker and more successfully than if no prior planning had occurred. An example of such preparatory work is being undertaken by the United Kingdom on the verification requirements for nuclear disarmament. On the basis that one day the UK will join nuclear disarmament negotiations, the Ministry of Defence is undertaking a study on how to verify the disarming and destroying of their nuclear weapons systems. 7
Such preparatory work will not only make negotiations move more quickly once they start, it will also help overcome blocks to the commencement of such negotiations – such as the current lack of confidence in the ability to verify or enforce compliance of a NWC. The preparatory work undertaken in the late 1980s and early 1990s on the development of seismic and radioisotope monitoring, for example, helped build the confidence necessary for the commencement of negotiations on the Comprehensive Test Ban Treaty in 1993, which was concluded in 1996.
It is important, however, to consider the possibility not only of preparatory work which will assist negotiations on a NWC once they commence, but also of commencing such negotiations now. Are such negotiations really unrealistic or idealistic in the current political circumstances?
The claim of ‘unrealistic' or ‘idealist' is often made by those with an interest in maintaining the status quo and those lacking the imagination to consider the possibility of change. It was a claim made for example about the visions to end slavery in the US south, to advance the vote to women in Western countries, to end the South American dictatorships or to end apartheid in South Africa . On the other hand, merely imagining a change or claiming the high moral or legal ground – and the verdict on nuclear weapons announced by the International Court of Justice in 1996 definitely confers this high ground to nuclear abolitionists - does not of itself indicate that the practice will necessarily end. A more sophisticated analysis of political forces is necessary to give some idea of the possibility of nuclear disarmament.
Such an analysis is beyond the scope of this paper. However, a cursory glance at the situation would indicate that despite some negative developments – particularly in US nuclear doctrine and in the withdrawal of North Korea from the NPT - it would appear that the scales could tip towards the side of the optimist abolitionists given:
· the spread of nuclear weapon free zones to over half the world,
· public opinion polls indicating support for a NWC even in the NWS,
· the achievement of an unequivocal commitment by the NWS at the 2000 NPT to achieve the elimination of nuclear weapons,
· the shift by many NATO States to support the United Nations disarmament resolution introduced by the New Agenda Coalition countries,
· over 2000 organisations joining Abolition 2000 - an international network supporting a NWC,
· over 600 cities joining the Mayors for Peace Emergency Campaign for the Elimination of Nuclear Weapons.
· the growth of the recently established Parliamentary Network for Nuclear Disarmament to engage hundreds of parliamentarians from 50 countries in nuclear disarmament actions
Welcome as these developments may be, are they sufficient to overcome forces which keep nuclear weapons firmly within the doctrines of the NWS?
In 1960, Hans Morgenthau, often referred to as the father of realism, noted that nuclear disarmament was impossible without changing the existing power structure, as the development of such weapons was an unavoidable result of States competing for power through military advantage. Merav Datan has commented that “According to the realist view, therefore, nuclear weapons are a symptom of the fundamental power struggle that defines relations between States, and nuclear disarmament is a superficial manifestation of this power struggle.” 8
Whilst State predominance in the development of political reality has never been an absolute – in fact the rise of the nation-State is a relatively new phenomenon in history - it is inarguable that for the 19 th and 20 th Centuries at least, State competition was indeed a major force shaping international politics and security.
However, other factors are becoming as powerful as State competition, arising from such developments as the breakdown of the USSR-USA super-power competition and more recently the development and increasing role of international organizations, international communication-systems, non-governmental organizations, international legal mechanisms, global consciousness, and the globalization of markets.
Datan, commenting on the influence of just one of the growing internationalist communities – international parliamentary networks – notes that “parliamentarians are perfectly situated to challenge outdated “realistic” notions of security and international relations as merely a struggle for power through military means. By uniting to challenge the most flagrant symbol of military power and call for the abolition of nuclear weapons, the Parliamentary Network for Nuclear Disarmament can help promote new and even more realistic notions of the symbols of power and the structures of power, better suited to today's realities and the political will of the world's citizens.” 9
The NWC is both an expression of, and a vehicle to more quickly achieve, this emerging world where international law and cooperation replace the reliance on competition and force. Existing and emerging dangers, including the possibility that we could be derailed by a nuclear disaster, may prevent us achieving such a world. However, the question should not be one of whether or not a NWC is possible, but how we can more quickly achieve one in order to ensure that such a disaster never occurs.
Alyn Ware is Consultant for the International Association of Lawyers Against Nuclear Arms, Vice-President of International Peace Bureau and a drafting coordinator for the Model Nuclear Weapons Convention
1 The five States that tested nuclear weapons prior to 1970, for example, are acknowledged in the Non-Proliferation Treaty as Nuclear Weapon States. These are the same five States that alone hold veto power in the UN Security Council.
2 United Nations General Assembly Resolution 50/70 P , adopted December 12, 1995 .
3 See for example UNGA resolution 58/36, Follow-up to the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, adopted by the UN General Assembly on December 8, 2003.
4 Alyn Ware , The Nuclear Disarmament Journey: Steps leading to the final goal ; www.lcnp.org/mnwc/Disarmament%20Journey.htm.
5 Alyn Ware , op.cit.
7 See NPT/CONF.2005/PC.II/WP.1 , Verification of nuclear disarmament: first interim report on studies into the verification of nuclear warheads and their components , Working paper submitted by the United Kingdom of Great Britain and Northern Ireland, 2003; www.reachingcriticalwill.org/legal/npt/2003statements/Working%20Papers/WP1UK.pdf?OpenElement.
8 Merav Datan , Abolition through a Nuclear Weapons Convention , presentation to the conference From Nuclear Dangers to Cooperative Security: Parliamentarians and the Legal Imperative for Nuclear Disarmament, Liu Institute for Global Issues, University of British Colombia, Vancouver, Nov 7-9, 2003.
9 Merav Datan , op.cit.