Thursday, October 23, 2014
Managing Nuclear Weapons: The Grand Bargain and Its Current State
By Bakampa Brian Baryaguma
[Dip. Law (First Class)–LDC; P.G. Cert. Oil & Gas–Mak; LLB (Hons)–Mak; GC Candidate–GCA
Nuclear weapons are the most powerful weaponry ever produced by man;  and the deadliest too. With their discovery, ‘... human destructive power reached a new, suicidal level, surpassing previous limits to all but unimaginable degree.’ The monstrous twin bombings of Japan’s Hiroshima and Nagasaki cities in 1945, demonstrated the weapons’ disastrous capability. Having killed more people than any other weapon, they made history.
Nuclear weapons escalated conflicts and threatened global peace and security. Nuclear-weapon states started bullying non-nuclear-weapon states, threatening them with nuclear bombardment. Other states pursued a balance of terror policy, involving acquiring the macabre weapons, to guarantee their security, economic stability and political prestige.
The world was said to be: ‘... lurching from crisis to crisis, where the only light at the end of the tunnel is a nuclear fireball;’ brought to a nuclear tipping point; facing dangers of the most titanic proportions, whereby with ‘... further transfers of nuclear weapons, accidental and catalytic wars would become more likely, and nations would drift into “a nightmare region in which man’s powers of destruction are constantly increasing and his control over these powers is constantly diminishing.”’ Effective management of nuclear arms became necessary.
2. Managing Nuclear Weapons: The Grand Bargain
The carnage of nuclear weapons necessitated a nuclear-free world. Led by the United Nations Secretary-General, states embarked on negotiations to achieve it, resulting in a negotiated settlement – the grand bargain – forming the basis of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (hereinafter ‘the NPT’), to limit the spread of nuclear weapons, through spread of technological know-how, nuclear materials and specialized equipment. It’s the cornerstone of the nuclear non-proliferation regime.
A. The NPT and the Grand Bargain
The NPT categorized member states, on which basis obligations were imposed.
1. State Categorization under the NPT
Two categories of states were envisaged:
(a) Those which had manufactured and exploded a nuclear weapon or device before 1 January, 1967 – termed nuclear-weapon states; and
(b) Those which have not manufactured and exploded a nuclear weapon or device – termed non-nuclear-weapon states.
2. Pillars of the Grand Bargain
The grand bargain rests on three interrelated and mutually reinforcing pillars: non-proliferation, peaceful use of nuclear energy, and disarmament. These were pledges made by the states, which establish a balance of obligations undertaken by them, to ensure non-proliferation and move toward a nuclear weapons-free world. Thereunder:
(a) Nuclear-weapon states commit to –
(i) Early cessation of nuclear weapons production;
(ii) General and complete disarmament; and
(iii) Denial of nuclear weapons to non-nuclear-weapon states.
(b) Non-nuclear-weapon states commit to –
(i) Refraining from manufacturing nuclear weapons; and
(ii) Never to seek, receive or acquire them from nuclear-weapon states.
B. The Current State of the Grand Bargain
Judging from its three pillars, the grand bargain is a big success, although it faces challenges, which portray it, ‘... as a set of nuclear bargains at war with one another.’
1. General and complete disarmament
The NPT is critical to sustaining progress towards disarmament because, it’s the principal legal barrier to the spread of nuclear weapons. Pursuant to good faith negotiations on effective measures relating to the cessation of the nuclear arms race and to general and complete nuclear disarmament under strict and effective international control, the grand bargain facilitates the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles and the elimination from national arsenals of nuclear weapons and the means of their delivery. Eliminating threats and reducing the importance of nuclear weapons in national politics and security discourse are important.
However, nuclear-weapon states appear unwilling to eliminate their nuclear weapons. They are modernizing and reaffirming their arsenals’ importance. Russia and America still poses extremely large stockpiles of nuclear weapons – about 95% of the world's nuclear warheads – because of their persistent stiff rivalry and strategic competition.
Their continued non-compliance, ‘... is a potentially serious blow to the long-term survival of the treaty, the existing nonproliferation norm that the treaty has helped nurture, and the hopes for a peaceful world.’ Moreover, if they don’t disarm, they won’t have the moral authority to tell other nuclear-weapon states to disarm or prevent non-nuclear-weapon states from arming themselves.
The grand bargain has prevented wider dissemination of nuclear weapons by curtailing their acquisition by non-nuclear-weapon states and restraining their further development by nuclear-weapon states. The possibility of accidental or catalytic nuclear warfare has been reduced.
However, non-compliance with non-proliferation obligations remains a challenge. Nuclear-weapon states aid and abet non-nuclear-weapon states in development and further enrichment of nuclear capability.
3. Peaceful use of nuclear energy
Since the testing of the first nuclear device, ‘... the international community has struggled with a basic dilemma: how to restrain the atom’s destructive effects while harnessing its vast potential for peaceful uses.’ The grand bargain permits and facilitates the application of safeguards on peaceful nuclear activities, to ease international tension and strengthen trust between states. It prohibits harmful use of nuclear energy, by preventing its diversion from peaceful uses to nuclear weapons.
But trust is problematic. Some states in the past manipulated it to make nuclear weapons.
4. Membership and compliance measures
The NPT membership has grown tremendously. In 1970, it had 43 member states; by 2010, there were nearly 190 members; it’s the most widely adhered to arms control agreement in history.
Coupled with this impressive membership record is a high compliance rate – South Africa gave up its nuclear weapons program and adhered to the NPT as a non-nuclear-weapon state; former Soviet Union member states transferred their nuclear weapons to Russia and adhered to the NPT as non-nuclear-weapon states; and five nuclear-weapon-free zone treaties have been concluded.
The grand bargain has contained nuclear weapons, by sufficiently managing their proliferation and use. It is a big success, in spite of its peculiar challenges. If states embrace social engineering and conventional weaponry, alongside political changes, as legitimate sources of superiority, the ‘very tall mountain’ can be surmounted.
NOTES AND REFERENCES
1. See, Henry Sokolski, ‘What Does the History of the Nuclear Nonproliferation Treaty Tell Us About Its Future?’, in Henry Sokolski (ed) Reviewing the Nuclear Nonproliferation Treaty (2010) 27, at 43.
2. George P Schultz et al., ‘Toward a Nuclear-Free World’ (2008).
3. William H. McNeill, The Pursuit of Power (1982), at 360.
4. Zhores Medvedev, ‘Stalin and the Atomic Bomb’, in Roy Medvedev & Zhores Medvedev, The Unknown Stalin: His Life, Death, and Legacy (2003) 121, at 132, states that by order of President Harry Truman, the American air force, exploded the atomic bomb over Hiroshima on 6 August, 1945; the next day, 7 August, 1945, a second one was dropped over Nagasaki.
5. Per Hakan Altinay, in his introductory remarks to the week 7 lecture on Nuclear Arms, in the global civics lecture series of the Global Civics Academy. According to Zhores Medvedev, supra note 4, the atomic bombs killed between 200,000-300,000 people.
6. Henry Sokolski, supra note 1, at 32-33, reports that on 17 October, 1958, Ireland offered a draft resolution concerning the ‘Further Dissemination of Nuclear Weapons’ before the First Committee of the General Assembly of the United Nations, addressing the possibility that ‘an increase in the number of states possessing nuclear weapons may occur, aggravating international tensions’ and making disarmament ‘more difficult.’ The draft resolution recommended that the General Assembly establishes an ad hoc committee to study the dangers inherent in the further dissemination of nuclear weapons. The resolution was however, withdrawn on 31 October, 1958, when it became clear that many states were not yet ready to endorse the initiative.
But as stated at page 48, reading the Treaty today, one finds that ‘... the original bargain of the Irish resolutions of the late 1950s and early 1960s is present in the final version of NPT. Indeed, Articles 1 and 2, which prohibit the direct or indirect transfer and receipt of nuclear weapons, nuclear explosives, or control over such devices, read very much like the original Irish resolutions themselves. In Article 3, the treaty also calls on parties to accept and negotiate a system of safeguards that would prevent “diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.” Finally, the treaty makes it clear in Article 4 that parties to the NPT could exercise their right to develop peaceful nuclear energy only “in conformity with Articles I and II.”’
7. Professor Dingli Shen, in his week 7 lecture on Nuclear Arms, a part of the global civics lecture series of the Global Civics Academy, states that the American government repeatedly threatened mainland China with the use of nuclear weapons, which prompted the latter to acquire them as well. The good professor submits that the American hegemony of nuclear weapons made the world unsafe and unstable, such that other states had to develop them in order to counter American aggression. Thus, for example, after China acquired a nuclear weapon, the American government has never threatened mainland China with the use of nuclear weapons. He further states that while America still has a programme to use nuclear weapons against mainland China, it (America) does not speak of it – and that is the difference.
These threats became such a big issue of international concern that in 1995, each of the five nuclear-weapon states – China, France, Russia, the United Kingdom, and the United States of America – had to give statements, noted by United Nations Security Council Resolution 984 (1995), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon state parties to the NPT. In 2009, the UN Security Council, by SC Resolution 1887 (2009), affirmed that such security assurances strengthen the nuclear non-proliferation regime.
8. William H. McNeill, supra note 3, at 368, recalls that the balance of terror policy, ‘... arose in the decade after 1957, as the [United States and USSR] installed hundreds of long-range missiles and so became of destroying each other’s cities in a matter of minutes.’ The policy was in response to the highly armed, militarily charged and politically unpredictable environment in which states operated. Hence, more countries obtained the weapons; and others are still trying to acquire them up to now.
This policy is closely related to the finite deterrence nuclear theory, which was originally innovated by France. Henry Sokolski, supra note 1, at 41, states that according to this theory, ‘... smaller nations could keep larger nuclear powers from threatening them militarily by acquiring a small number of nuclear weapons of their own. With their limited nuclear arsenal, the smaller nations might not be able to prevail in war against a larger power but could effectively “tear an arm off” by targeting the larger nation’s key cities, and thus deter such nations from ever attacking.’
9. Kevin D. Paulson, Coming to Terms (1985), at 11.
10. George P Schultz et al., supra note 2.
11. Henry Sokolski, supra note 1, at 40.
12. Ibid., at 34-35.
13. As described by George P Schultz et al., supra note 2.
14. By 1962, the UN Secretary General had embarked on an inquiry about the conditions under which non-nuclear-weapon states ‘might be willing to enter into specific undertakings to refrain’ from acquiring weapons. Henry Sokolski, supra note 1, at 41-48 gives a precise account of the negotiations leading to the conclusion of the grand bargain and the enactment of the NPT. Particularly at pages 41-42, he states that, ‘Sixty-two nations replied, most of them wanting specific neighbors or all the states within their region to foreswear acquiring nuclear weapons as a condition for their doing likewise. Other nations, such as Italy, wanted the nuclear powers to halt their nuclear buildup. Meanwhile, the three nuclear powers that answered the inquiry indicated that general and complete disarmament was the best solution.’
15. Eldon V. C. Greenberg, ‘Peaceful Nuclear Energy and the Nuclear Nonproliferation Treaty’, in Henry Sokolski (ed) Reviewing the Nuclear Nonproliferation Treaty (2010) 105, at 110, states that there was need ‘... to establish a comprehensive, loophole-free agreement primarily aimed at enhancing security.’
16. The International Atomic Energy Agency (IAEA), in its Information Circular No. 140 (INFCIRC/140) of 22 April, 1970, reported that the NPT entered into force on 5 March, 1970. The 1995 NPT review conference unanimously approved the indefinite extension of the Treaty.
17. Henry Sokolski, supra note 1, at 27.
18. SC Res. 1887 (2009). See, Preamble thereto.
19. For purposes of this essay, the terms ‘NPT’ and ‘grand bargain’ are synonymous with each other and are consequently used interchangeably, such that a reference to the one necessarily means a reference to the other.
20. Treaty on the Non-Proliferation of Nuclear Weapons (1968), Article IX(3). These are China, France, Russia, the United Kingdom, and the United States of America.
21. Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 4.
The term non-proliferation refers to control of nuclear weapons. It means first, imposition of quota ceilings on quantity control i.e. not building more nuclear weapons, including restraint from further spread or acquisition of them, to or by those who don’t have them; and second, quality control i.e. not building better nuclear weapons, by those who have them. As stated at page 6 of the report, the norm of non-proliferation ‘... includes the framework of legal restrictions, safeguards, export controls, international cooperation, and other mechanisms that help to prevent proliferation,’ at the heart of which lies ‘... the international consensus that the further spread of nuclear weapons would weaken all states’ security, as well as global and regional stability ....’
The term disarmament, on the other hand, denotes reduction of nuclear weapons.
The NPT permits peaceful use of nuclear energy and acknowledges the right of all states to benefit from international cooperation in this area. Hence, as stated by Eldon V. C. Greenberg, supra note 15, at 113, ‘The UN General Assembly, in considering the final Treaty document and commending it to member states for ratification, specifically stated that it was: Convinced that, pursuant to the provisions of the Treaty, all signatories have the right to engage in research, production and use of nuclear energy for peaceful purposes and will be able to acquire source and special fissionable materials, as well as equipment for the processing, use and production of nuclear material for peaceful purposes.’
As noted at pages 5-6 of the US Delegation’s report, these three pillars are mutually reinforcing in the sense that, ‘An effective nonproliferation regime whose members comply with their obligations provides an essential foundation for progress on disarmament and makes possible greater cooperation on the peaceful use of nuclear energy. With the right to access the benefits of peaceful nuclear technology comes the responsibility of nonproliferation. Progress on disarmament reinforces efforts to strengthen the nonproliferation regime and to enforce compliance with obligations, thereby also facilitating peaceful nuclear cooperation.’
22. Leonard Weiss, ‘Nuclear-Weapon States and the Grand Bargain’ (2003). Available at file:///I:/Nuclear-Weapon%20States%20and%20the%20Grand%20Bargain%20_%20Arms%20Control%20Association.htm.
23. Treaty on the Non-Proliferation of Nuclear Weapons (1968), Article VI. Leonard Weiss, supra note 22, recalls that the addition of Article VI to the treaty blunted attacks by India and others that the early proposals of the NPT were unacceptably discriminatory in favour of the five nuclear-weapon states and allowed the Treaty to go forward, albeit without the Indians, who would not give up their right to make nuclear weapons. That the indefinite extension of the NPT in 1995 was predicated, in part, on assurances of continued commitment by the nuclear-weapon states to Art. VI.
24. Ibid. These states are committed to abandoning their nuclear weapons eventually. As Professor Dingli Shen, supra note 7, says, this is because if the holders of nuclear weapons decided to permanently hold them, it would be very hard to make the world permanently nuclear free.
But there are states, particularly India, Israel and Pakistan, which manufactured and exploded nuclear weapons subsequent to the Treaty. These are unaccounted for since they do not fall under any specific category under the Treaty. One would be forgiven for tempting to think that they bear no obligations thereunder. It is submitted however, that since law abhors a vacuum, these states carry the same obligations as the original five nuclear-weapon states.
25. Ibid., Article I. This is a non-transfer pledge and as Leonard Weiss, supra note 22 says, ‘The obligations contained in Article I of the NPT are among the most critical elements of the current nonproliferation regime because, without outside assistance, would-be proliferators, even if relatively advanced technologically, are hard-pressed to succeed in their plans. Indeed, the history of proliferation tells us that every country that has decided to make nuclear weapons since the end of World War II received assistance in its nuclear endeavor either as a result of scientific collaboration with the United States or other states with nuclear weapons or via espionage. The Soviet Union’s first weapon was at least partially assisted by espionage at the Manhattan Project, and the Soviets in turn provided important assistance to the Chinese program. The French and British programs were assisted by their collaboration with the United States on the Manhattan Project. France made a conscious decision in 1956 to give Israel the means to acquire the bomb, and Israel in turn provided some assistance to the French program and perhaps to the South African program as well, possibly in return for South African nuclear materials. The Indian program was substantially aided by the unwitting assistance of Canada and the United States. The Pakistani program proceeded from theft of design plans for a European nuclear enrichment plant, assistance from China, and a substantial clandestine worldwide purchasing program for the technology and components to complete the needed infrastructure to make weapons.’
26. Treaty on the Non-Proliferation of Nuclear Weapons (1968), Article II.
27. Ibid. This is a non-receipt pledge. These commitments stem from those of nuclear-weapon states to abandon their nuclear arsenals. Henry Sokolski, supra note 1, at 29-30, describes this as a deal, whereby ‘... forswearing nuclear weapons required a quid pro quo—i.e., a requirement for the superpowers to take effective measures to end the nuclear arms race ....’ Equally so, Professor Dingli Shen, supra note 7, sees it in more or less the same light: a need for a balance if non-nuclear-weapon states are to keep their non-nuclear status.
28. Professor Dingli Shen, supra note 7.
29. Henry Sokolski, ‘The Nuclear Nonproliferation Treaty’s Untapped Potential to Prevent Proliferation’, in Henry Sokolski (ed) Reviewing the Nuclear Nonproliferation Treaty (2010) 3, at 7.
30. Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 9-10.
31. Treaty on the Non-Proliferation of Nuclear Weapons (1968), Preamble thereto and Article VI. In an advisory opinion of 8 July, 1996, the International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (1996), ICJ Reports (1996) 226, unanimously stated that this is an existing obligation on member states. The UN Security Council, supra note 18, emphasized this obligation by calling upon parties to the NPT to undertake these negotiations and also called upon other states to join in this endeavour.
The ‘Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ at 10, notes that, ‘There has been significant progress on disarmament since the NPT’s entry into force. The Cold War era nuclear arms race between the United States and the Soviet Union ended two decades ago. Treaties banning chemical and biological weapons are now in force. At the 2000 NPT Review Conference, the five NPT nuclear-weapon states reiterated their commitment to the elimination of nuclear weapons. The United States, through negotiated agreements and unilateral actions, has reduced significantly its nuclear stockpile, reduced the role that nuclear weapons play in its security policy, and removed from its stockpile excess highly-enriched uranium and plutonium.’
However, Henry Sokolski, The NPT’s Untapped Potential, supra note 29, at 6, writes that, ‘Nonweapons states point out that none of these objectives has yet been met.’ George P Schultz et al., supra note 2, would agree, because they are of the opinion that, ‘The steps we are taking now to address these threats are not adequate to the danger. With nuclear weapons more widely available, deterrence is decreasingly effective and increasingly hazardous.’
32. George P Schultz et al., supra note 2, quote Mikhail Gorbachev, who signed the first treaties on real reductions in nuclear weapons, saying that, ‘It is becoming clearer that nuclear weapons are no longer a means of achieving security; in fact, with every passing year they make our security more precarious.’
But limiting the role of nuclear weapons in security policy seems far from possible. Hans M. Kristensen, ‘Nuclear Weapons Modernization: A Threat to the NPT?’ (2014), notes that ‘All nuclear-armed states speak of nuclear weapons as an enduring and indefinite aspect of national and international security.’ This is a show of hypocrisy, but interestingly, they are not alone in this: Kristensen also notes that, ‘Moreover, many non-nuclear-weapon states that publicly call for nuclear disarmament continue to call on nuclear-armed allies to protect them with nuclear weapons.’ He gives a case in point of ‘... five non-nuclear-weapon states in NATO [that] have volunteered to serve as surrogate nuclear-weapon states by equipping their military forces with the necessary tools to deliver U.S. nuclear weapons in times of war.’ In his view therefore, ‘... although the numerical nuclear arms race between East and West is over, a dynamic technological nuclear arms race is in full swing and may increase over the next decade.’
Leonard Weiss, supra note 22, states the danger in this: ‘To the extent that nuclear weapons are seen by the nuclear-weapon states as central to their strategic posture and foreign policy, the message being sent to the world is that the commitment to Article VI is a sham, and that nuclear weapons bring international prestige and other benefits.’
33. Hans M. Kristensen, ‘Nuclear Weapons Modernization: A Threat to the NPT?’ (2014). The most Russia and the United States did was signing the Strategic Arms Limitation Treaty (SALT) in 1972, setting a ceiling on their weaponry. The SALT mainly targeted long-range bombers, submarine-launched missiles and the intercontinental ballistic missiles. Ironically, even with the SALT in place, the two countries increased their nuclear arms. For example, in 1970, USA had a total of 4000 nuclear warheads, which however increased to 9200 by 1980; while USSR had a total of 1800 nuclear warheads in 1970, which increased to 6000 by 1980. See, William H. McNeill, supra note 3, at 372.
Further, William H. McNeill, supra note 3, at 374, notes that the paradox however, is that nuclear-weapon states find themselves in a helpless situation today: they are ‘... hampered by the very formidability of their weaponry ... unable to use atomic warheads as to do without them.’ To him (ibid., at 382), ‘... the absurdity of devoting enormous resources to the creation of weapons no one dares to use is obvious to all concerned. This means that the vast armed establishments currently protecting the NATO and Warsaw Pact powers against one another are liable to catastrophe not merely from the external attack they are designed to survive but also from internal decay.’
In a bid to end this dilemma, the UN Security Council, by Resolution 1887 (2009), Article 2 thereof, ‘Calls upon States Parties to the NPT to comply fully with all their obligations and fulfil their commitments under the Treaty,’ and under Article 3, ‘Notes that enjoyment of the benefits of the NPT by a State Party can be assured only by its compliance with the obligations thereunder.’
34. George P Schultz et al., supra note 2. There are varied reports concerning the nuclear weapons deployments of Russia and the United States and perhaps their allies. Professor Dingli Shen, supra note 7, estimates the figure at more than 20,000 nuclear weapons each, saying that for 20-30 years now, they have been lowering to 5000-3000; Henry Sokolski, The NPT’s Untapped Potential, supra note 29, puts the figure at over 75,000, which he says has been reduced ‘... to fewer than 10,000;’ Leonard Weiss, supra note 17, puts it at 10,000 each, reduced to 6000. Profesor Shen says that the ideal should be 2000-1000.
35. William H. McNeill, supra note 3, at 383, cautions that, ‘... as long as rivalry between mutually suspicious states continues, deliberate organized invention seems certain to persist, cost what it may.’ Issues like Russia’s mistrust of America’s missile defence system in Europe are key diving factors of this.
36. Leonard Weiss, supra note 22. He goes on to say that, ‘In this respect, the NPT obligations of the nuclear-weapon states are crucial. If collective action to confront a proliferator and roll back or otherwise neutralize its program is to be successful, the most powerful nations must come to the table with clean hands if their leadership is to be viewed seriously and not cynically. At the same time, this task is made more difficult by the fact that the five nuclear-weapon states recognized by the NPT (the United States, Russia, France, the United Kingdom, and China), by virtue of their special status as permanent members of the UN Security Council, enjoy veto power over UN sanctions and investigations. Enforcing adherence to their commitments requires them to police themselves and each other.’
37. George P Schultz et al., supra note 2, state that, ‘The U.S. and Russia ... have a special responsibility, obligation and experience to demonstrate leadership, but other nations must join.’ They believe that, ‘As the reductions proceed, other nuclear nations would become involved.’
Otherwise, Henry Sokolski, the History of the NPT, supra note 1, avers that, ‘... smaller nations might prefer to acquire their own nuclear forces rather than allow an ever-escalating and threatening nuclear arms race between the major nuclear states go unchallenged or have to depend on unreliable superpower guarantees of nuclear security. From this perspective, asking states without nuclear weapons to forgo acquiring them is asking them to forgo exercising a right that could be in their national security interest.’
Professor Dingli Shen, supra note 7, emphasizes that, ‘China has not been and does not deserve to be invited [to disarm] because they have too few – about 200-300. When the US and Russia have 300, they will invite China; but now it is impossible for China to reduce when they still have 3000. China doesn’t want to be a great hero. 3000-300 is unequal. ... Without nuclear weapons, we would have huge moral authority to tell anyone to abandon theirs.’
38. Eldon V. C. Greenberg, supra note 15, at 108, attributes this achievement to the combined effect of Articles I and II, saying they, ‘... are what make the Treaty a treaty against proliferation.’ This enhances international peace and security.
Before the NPT, five states (China, France, Union of Soviet Socialist Republics, United Kingdom and United States of America) acquired nuclear weapons in 23 years, from 1945 to 1968, while with the NPT, only three states (India, Israel and Pakistan – all non-NPT members) have acquired the weapons in 45 years, from 1968 to 2013. Without it, we would have seen more states acquiring nuclear weapons, thus making the world more dangerous. Probably a minimum of 15 countries would have obtained them, assuming that 20 years time is what is needed for five states to acquire nuclear weapons; such that in 45 years, an additional minimum of 10 states would have acquired them. Thus, the ‘Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ states at page 7, that in the mid-20th century, there were predictions that 20 to 30 states would acquire nuclear weapons, which the NPT has proved wrong.
Nuclear non-proliferation has been made possible majorly through galvanized international efforts against further weapons-oriented nuclear enrichment and development purposes. The best example is the 1990-1991 Gulf War experience, which exposed Iraq’s secret extensive nuclear weapons program, in spite of the existence of IAEA safeguards against hazardous nuclear developments. This program was dismantled by international efforts, leading to Iraq’s successful reintegration into the nuclear non-proliferation regime. The other example is Libya, which in December 2003, acknowledged and eliminated its nuclear weapons program and cooperated fully with IAEA efforts to verify the scope of its nuclear activities and undertook to ensure that any remaining facilities are fully safeguarded.
39. Henry Sokolski, the History of the NPT, supra note 1, at 35. The UN Security Council, by Resolution 1540 (2004) of 28 April 2004, provided further safeguards against proliferation by unanimously adopting a binding instrument which addresses the threat posed by non-state actors, including terrorists, of acquiring such weapons or related materials. The operative Paragraph 5 of the Resolution clearly states that it has no conflict with or alter the rights and obligations of State Parties to the NPT and other related conventions (like the 1972 Biological (and Toxin) Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC)). Further, it is stated that the Resolution does not alter the responsibilities of the IAEA and OPCW. The Resolution covers all fields of weapons of mass destruction (nuclear, chemical, and biological) and their means of delivery, as well as related materials. It basically obligates states to one, refrain from providing any form of support to non-state actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use WMDs and means of delivery; two, adopt and enforce appropriate effective laws that prohibit any non-state actor such activities, including acting as an accomplice, or to assist or to finance; and three, impose necessary domestic controls: (a) accountability, (b) physical protection, (c) border controls and law enforcement efforts and (d) national export and trans-shipment controls, including controls on providing funds and services, such as financing and transporting, criminal or civil penalties for violations.
40. The ‘Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ at 10-12 reveals that Iran and North Korea are notable here. North Korea has consistently been non-compliant with its NPT safeguards obligations. The country is seriously trying to manufacture and explode nuclear weapons; ostensibly because it wants to guarantee its security, since it does not trust other states and international bodies, including the United Nations, reasoning they may not come to one’s aid when in danger. It has not honoured its September, 2005 commitments to abandoning all nuclear weapons and existing nuclear programs and to return, at an early date, to the NPT and to IAEA safeguards, after its announced intention to withdraw from the Treaty in January 2003. It has severally announced nuclear tests and currently faces UN Security Council sanctions.
On the other hand, Iran has conducted unreported nuclear activities, including enrichment, for many years, using both legal and illegal means. Professor Dingli Shen, supra note 7, believes that Iran is not straight forward that it is building nuclear programs for peaceful purposes; and that worries the rest of the world. He suggests that Iran needs to open its facility. Understandably therefore, the IAEA has (particularly in 2005) found it in non-compliance with its NPT-mandated safeguards agreement, under Article XII(C) of the Agency’s Statute (i.e. the Statute of the International Atomic Energy Agency (1956) (as amended up to 23 February, 1989)). On several occasions, the UN Security Council has passed resolutions calling on Iran to suspend its enrichment-related activities and heavy water-related projects and imposed sanctions on it for lack of compliance.
The UN Security Council, by Resolution 1887 (2009), Article 4 thereof, ‘Calls upon all States that are not Parties to the NPT to accede to the Treaty as non-nuclear-weapon States so as to achieve its universality at an early date, and pending their accession to the Treaty, to adhere to its terms.’
41. Leonard Weiss, supra note 22. For example, Russia, which advanced Tehran’s ability to acquire nuclear technology by aiding Iran in the construction of a nuclear reactor at the city of Bushehr; China and the United States, which have assisted and collaborated with Pakistan in further enrichment of its nuclear weapons program; and Pakistan facilitated the nuclear capability of both North Korea and Iran – by trading nuclear weapons-related technology with the former in return for missile technology, while Iran admitted that its clandestine work on nuclear enrichment was also aided by Pakistan. Weiss says that one of the likely consequences of these unholy trading activities is terrorist acquisition of nuclear weapons, a threat that was not envisioned when the NPT was drafted nearly four decades ago.
The other consequence of non-compliance with non-proliferation obligations, observed by George P. Schultz et al., supra note 2, is that now, ‘There are nuclear weapons materials in more than 40 countries around the world ...,’ with more reportedly being smuggled to Eastern Europe and the Caucasus.
42. The ‘Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 3,’ states that the first nuclear device was tested by the United States at Alamogordo, New Mexico, in the summer of 1945. It should be recalled that the United States was also the first and last country to use nuclear weapons in war. Next, according to William H. McNeill, supra note 3, at 366, was the Union of Soviet Socialist Republics (USSR, present day Russia), which exploded its first nuclear device in 1949, an act that sparked off a nuclear arms race, one that McNeill says, at page 374, has ‘... proved contagious, affecting all parts of the earth.’ It is a well known fact however, that Germany, under the Nazis, was the first country in the world to attempt building nuclear weapons.
43. Ibid. Of particular concern was the fact that more and more countries were exploding nuclear devices in the name of ‘peaceful purposes,’ yet concern heightened that the spread of nuclear technology for peaceful purposes could not be divorced from the proliferation of nuclear weapons.
On 26 October, 1956, the International Atomic Energy Agency (IAEA) was approved by the International Atomic Energy Agency Statute (as amended up to 23 February, 1989) in a bid to strike this delicate balance. Article II of the Statute states the IAEA’s objectives. It states that, ‘The Agency shall seek to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world. It shall ensure, so far as it is able, that assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose.’ The Statute came into force on 29 July, 1957.
44. Treaty on the Non-Proliferation of Nuclear Weapons (1968), Article IV. Peaceful application of nuclear energy is a theme that traverses the entire script of the NPT. As stated by Henry Sokolski, the History of the NPT, supra note 1, at 50, ‘... all civilian nuclear energy transfers are meant to compensate [non-nuclear-weapon states] for their restraint and to assure them equal access to technology that the states with nuclear weapons already had.’
The ‘Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference,’ at 8, notes that the NPT has enabled tremendous growth in the peaceful use of nuclear energy. There are nuclear applications in food security, disease prevention, medicine, water resources, electricity generation (nearly 15% of the world’s electricity) and environmental management that are improving the lives of people around the world every day.
The guarantees of peaceful applications lie in acceptance of inspection of non-nuclear-weapon states’ reactors and territories to ensure that they are living up to their undertakings under the Treaty (see, Article III thereof). Although, Henry Sokolski, The NPT’s Untapped Potential, supra note 29, at 3-4, is of the view that, ‘Unfortunately, these procedures [intended to detect illicit nuclear activities and materials], which are required of all non-nuclear weapons state members of the NPT under Article III, are rickety at best,’ because, ‘Not only has the IAEA failed to find existing covert reactors and fuel-making plants, which are critical to bomb making, the agency still cannot assure the continuity of inspections for spent and fresh reactor fuels that could be processed into bomb usable materials at roughly two-thirds of the sites that it currently inspects. What is easily as worrisome is that even at declared nuclear fuel-making sites, the IAEA routinely loses count of many bombs’ worth of production each year. [Yet] ... in the practical world, the NPT hardly admits of modification and is far too easy for violating states to withdraw from. Under Article X, treaty members are free to leave the NPT with no more than 3 months notice merely by filing a statement of the “extraordinary events [relating to the subject matter of the treaty] it regards as having jeopardized its supreme interests.” As North Korea demonstrated with its withdrawal from the NPT, these slight requirements are all too easy to meet.’ Worse still, he says, the Treaty is functionally unamendable. He submits that, ‘For all of these reasons, the NPT is not just seen as being weak against violators and difficult to improve, but it is seen effectively as a legal instrument that enables nations to acquire nuclear weapons technology,’ thereby rendering it open to cynical manipulation to develop and acquire nearly all materials necessary for nuclear weapons manufacture.
45. Article III of the NPT links safeguards to export controls by requiring the application of IAEA safeguards to nuclear exports to non-nuclear-weapon states. Two bodies – the Zangger Committee and the Nuclear Suppliers Group – are committed to developing export controls to prevent the diversion of nuclear and nuclear-related exports from peaceful to weapons purposes, without hindering cooperation on the peaceful use of nuclear energy.
By 2010, more than 60 countries were considering new civil nuclear power programs, and efforts to help them develop their infrastructure through civil nuclear cooperation have received generous responses. The IAEA’s Technical Cooperation Program has enhanced the capabilities of more than 100 IAEA member states to benefit from peaceful nuclear energy uses.
46. Treaty on the Non-Proliferation of Nuclear Weapons (1968), Article III(1). But Article III(3) of the NPT makes it clear that the Treaty endeavours ‘... to avoid hampering the economic or technological development of the Parties or international co-operation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes ....’
The unambiguous rule is that non-nuclear-weapon states should desist from acquiring nuclear weapons; and nuclear-weapon states should desist from constant quantitative and qualitative improvement of their strategic forces – an unnecessary and provocative build-up, since only a small nuclear arsenal is needed to threaten to knock out an opponent’s major cities. Both should desist from direct or indirect unlawful use of nuclear weapons or devices.
To this end, the United Nations has boosted the NPT by creating several offences which criminalize state and individual diversion and misuse of nuclear materials, particularly pertaining to nuclear terrorism. On 14 September, 2005, the UN opened for signature the International Convention for the Suppression of Acts of Nuclear Terrorism, Article 2 of which creates the offences. First, under paragraph (1)(a) of Article 2, it is an offence for any person to ‘unlawfully and intentionally’ posses, make or use radioactive material or other device, with the intent to cause death or serious bodily injury, or cause substantial damage to property or to the environment. Second, under paragraph (1)(b), it is an offence for any person to ‘unlawfully and intentionally’ damage a nuclear facility or use radioactive materials or devices in a manner which releases or risks the release of radioactive material, with the intent to cause death or serious bodily injury, or cause substantial damage to property or to the environment, or compel a natural or legal person, an international organization or a state to do or refrain from doing an act. Third, under paragraph (3) of Article 2, it is an offence to attempt to commit an offence stated in paragraph (1) thereof. Fourth, under paragraph (2)(a) of Article 2, it is an offence if any person credibly threatens to commit an offence as set forth in Article 2(1)(b). Fifth, under paragraph (2)(b) of Article 2, it is an offence if any person demands unlawfully and intentionally, radioactive material, a device or a nuclear facility by threat, under circumstances which indicate the credibility of the threat, or by use of force. Sixth, under paragraph (4)(a) of Article 2, it is an offence if any person participates as an accomplice in an offence as set forth in paragraphs (1), (2) or (3) thereof. Seventh, under paragraph (4)(b) of Article 2, it is an offence if any person organizes or directs others to commit an offence as set forth in paragraphs (1), (2) or (3) thereof. Eighth, under paragraph (4)(c) of Article 2, it is an offence if any person intentionally or with the aim of furthering the general criminal activity or purpose of a group of persons acting with a common purpose, contributes to the commission of one or more offences as set forth in paragraphs (1), (2) or (3) of Article 2. Indeed, at the 2009 Historic Summit of Security Council, the Council, in its Resolution, supra note 18, was, ‘Gravely concerned about the threat of nuclear terrorism, and recogniz[ed] the need for all States to take effective measures to prevent nuclear material or technical assistance becoming available to terrorists.’
47. For example, in 1974, India exploded its first nuclear device, termed for peaceful purposes. Yet today, it is a nuclear-weapon state: its claim was therefore, false, dishonest, intended to deceive and mislead. Henry Sokolski, the NPT’s Untapped Potential, supra note 29, at 5, states that as a non-nuclear-weapon state, India violated its pledges not to misuse US and Canadian civilian nuclear energy aid; for this, it was sanctioned by the United States and most nuclear supplying states by depriving it of access to most controlled civilian nuclear supplies (see, Ibid., at 8-9). This deceptive concealment poses great challenges of mistrust of all states claiming to develop nuclear energy for peaceful purposes. The international community may not predict with accuracy, the end result of their nuclear programmes. I submit that the memory of India’s deception partly explains why the international community is hesitant to trust and believe Iran’s assertion that its nuclear enrichment programme is for peaceful purposes. But it is not surprising when states go to such lengths, because matters of nuclear weapons are overly sensitive and controversial, bordering on a do-or-die basis, since the state psychic seems to be that you either get the bomb or stand to be damned.
48. Report of the US Delegation to the 2010 Nuclear Non-proliferation Treaty Review Conference, at 6.
49. Ibid., at 7. According to page 6 of the report, only three states – India, Israel and Pakistan – have never adhered to the Treaty; while only one state, North Korea, has announced its withdrawal from it.
50. For sure, my mind perceives the drastic decline of public fear of the threat posed by nuclear weapons. I recall that while a little boy in the 1990s, talk was rife and fear pervasive of nuclear weapons and their potential disaster in media reports and individual discussions. This tense situation is largely no more; so much so that it appears much of the perceived danger of nuclear weapons now rests with elite circles in governments and academicians alone.
Otherwise, the peoples of the earth – whom some call The Other Superpower (see, Jonathan Schell, ‘The Other Superpower,’ The Nation (2003)) – are comfortably moving on with life, under their famous global peace movement zeal. This has restored hope for peace and stability in a once fragile world, trembling under the fear of nuclear warfare.
51. In light of them, we may as well say that it is big success and some bit of failure for the grand bargain: something like the half-full, half-empty glass analogy.
52. Professor Dingli Shen, supra note 7, suggests that, ‘Nations should look to other forms of power and security concepts dependent upon institutional innovation, science and technology, education strength and competences, social welfare, national health protection, social safety networks and formidable commission of deterrence. The strength of superpowers comes from these, including conventional weaponry, but not unconventional weaponry – meaning chemical or biological nuclear.’
53. William H. McNeill, supra note 3, at 383, proposes that, ‘... To halt the arms race, political change appears to be necessary. A global sovereign power willing and able to enforce a monopoly of atomic weaponry could afford to disband research teams and dismantle all but token number of warheads. Nothing less radical than this seems in the least likely to suffice. Even in such a world, the clash of arms would not cease as long as human beings hate, love, and fear one another and form into groups whose cohesion and survival is expressed in and supported by mutual rivalry. But an empire of the earth could be expected to limit violence by preventing other groups from arming themselves so elaborately as to endanger the sovereign’s easy superiority. War in such a world would therefore sink back to proportions familiar in the preindustrial past. Outbreaks of terrorism, guerrilla action and banditry would continue to give expression to human frustration and anger. But organized war as the twentieth century has known it would disappear.
The alternative appears to be sudden and total annihilation of the human species.’
We therefore, need a great hero, which, Professor Dingli Shen, supra note 7, said China doesn’t want to become; and rightly so, considering its minimal nuclear arsenal. I think the United States, with its enormous global power, can be the world’s great hero.
54. As envisaged by George P Schultz et al., supra note 2, who have vividly submitted that, ‘In some respects, the goal of a world free of nuclear weapons is like the top of a very tall mountain. From the vantage point of our troubled world today, we can't even see the top of the mountain, and it is tempting and easy to say we can't get there from here. But the risks from continuing to go down the mountain or standing pat are too real to ignore. We must chart a course to higher ground where the mountaintop becomes more visible.’