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– Lisa Beyer
Bloomberg News
August 27, 2018
Letter to the Editor: Moving Toward 'Legally Binding' Negative Security Assurances
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To the Editor:

In his recent remarks to the Arms Control Association members' annual luncheon (See ACT, January/February 1998), Robert Bell, National Security Council senior director for defense policy and arms control, treated U.S. promises not to use or threaten to use nuclear weapons against non-nuclear-weapon states as if they were legally binding commitments rather than politically binding declarations, as concluded earlier by State Department lawyers. From the point of view of many non-nuclear-weapon states, this should be a welcome response to their long-standing request for such so-called negative security assurances from the five declared nuclear-weapon states.

According to Bell, President Clinton's November 1997 presidential decision directive (PDD) on nuclear policy "reaffirmed" the negative security assurance that was given by the United States in 1995 just before the indefinite extension of the nuclear Non-Proliferation Treaty (NPT). That pledge stated:

The United States reaffirms that it will not use nuclear weapons against non-nuclear-weapon States Parties to the [NPT] except in the case of an invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a State toward which it has a security commitment, carried out or sustained by such a non-nuclear-weapon State in association or alliance with a nuclear-weapon State.

Bell also said this U.S. policy was "codified in a UN Security Council resolution" [Resolution 984/1995] that referred to the pledges made by the United States and the other four nuclear-weapon states that are NPT arties.

As a result of this promise, Bell said:

[I]t is the policy of the United States, as restated in this PDD, not to use nuclear weapons first in a conflict unless [first] the state attacking us or our allies or our military forces is nuclear-capable, or [second] not in good standing under the NPT or an equivalent regime [such as a nuclear-weapon-free zone], or third, is attacking us in alliance with a nuclear capability, [that is, in alliance with Britain, China, France, Russia or a nuclear-capable "threshold" state such as India, Israel or Pakistan].

The first exception relates to the four other nuclear-weapon states as well as the three nuclear-capable "threshold" states. The second exception pertains to Iraq and North Korea, for example, until they bring themselves back into compliance with the NPT; they will be covered by the U.S. promise if and when they are again non-nuclear-weapon NPT parties in good standing. The third exception is, of course, what is explicitly stated in the 1995 pledge itself. Thus, all the exceptions are consistent with the U.S. promise. Importantly, Bell did not include another exception: response to an attack with chemical or biological weapons by a non-nuclear-weapon state in good standing as an NPT party. The debate on that contentious issue within the administration was apparently resolved by the president in the PDD by limiting the exceptions to the three listed by Bell.

Recognizing the U.S. promise as "codified" by the Security Council and insisting that there are only these three exceptions, Bell's statement suggests that the administration has now accepted that the U.S. promise is, for practical purposes, legally binding. This is consistent with what the International Court of Justice (ICJ) concluded in its 1996 advisory opinion on the legality of the use or threatened use of nuclear weapons. While deciding by the narrowest of majorities that nuclear weapons use was generally illegal, the judges were unable to agree that nuclear use would be illegal by a nation facing extinction from an armed attack. In its opinion, the Court referred to the negative security promises of the nuclear-weapon states to non-weapon members of the NPT and of nuclear-weapon-free zones.

The court concluded unanimously that any threat or use of nuclear weapons "should...be compatible with the requirements of international law applicable in armed conflict...as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons." From earlier paragraphs of the opinion, it is clear that, by "treaties and other undertakings," the court referred to nuclear-weapon-free-zone treaties and to the NPT negative security assurances. Though the court used the word "should" to describe the nature of the responsibility to comply, it used the same word to describe that responsibility with respect to obligations it characterized as "international law" and "treaties." They are without doubt legally binding. The court must have meant that the NPT negative assurances should also be regarded as legally binding.

Although the avowed nuclear-weapon states (except for China) have been unwilling to put their non-use promises to the NPT non-weapon parties in treaty form, they have been willing to sign such treaty commitments to parties to most nuclear-weapon-free-zone treaties. At the 1995 NPT review and extension conference, this difference produced compromise language in the "Principles and Objectives for Non-Proliferation and Disarmament" decision adopted by the conference. After noting the security assurances gien by the five nuclear-weapon states and UN Security Council Resolution 984, the NPT conferees agreed that "further steps should be considered to assure the non-nuclear-weapon States party to the [NPT] against the use or threat of use of nuclear weapons. These steps could take the form of an internationally legally binding instrument."

At the Geneva Conference on Disarmament (CD) and at various NPT review conferences, the issue of making the negative security assurances "legally binding" has long been debated. On March 26, the CD finally agreed to establish an ad hoc committee to negotiate a negative security assurances treaty. However, the chances of reaching agreement at the CD on such a treaty are low. This is because CD action requires unanimity of the conference participants, because India and Pakistan will not agree to any treaty which excludes them from the protection of its assurances, and because many NPT parties at the CD oppose giving India and Pakistan such protection until they join the NPT—which they have refused to do for almost 40 years. Given the slim chance of CD agreement on a treaty, the Clinton administration is to be commended for giving greater clarity and effect to U.S. assurances to non-nuclear-weapon NPT members. The administration has thus moved toward satisfying the 1995 promise that was part of the quid pro quo for extending the NPT indefinitely—to consider "further steps" toward "legally binding" negative security assurances.

George Bunn, Consulting Professor, Stanford Center for International Security and Arms Control

 

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