Lawyers for Social Responsibility (Canada)

 

Briefing Note -  On the contradiction between Canada’s obligations under the

Non-Proliferation Treaty and under NATO Policy Documents

 

APRIL 2001

 

International concern is growing due to a sharp contradiction between the obligation of NATO states under the Treaty on the Non-Proliferation of Nuclear Weapons (the “NPT”) and their recent statements concerning NATO’s nuclear policy.

 

OBLIGATIONS UNDER THE NPT AND UN RESOLUTIONS:

Under the NPT, all States Parties have agreed as follows:

 

Article VI: Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

 

The International Court of Justice in its July 8, 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons examined Art. VI and concluded:

 

“Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective control.”

 

At the United Nations in the fall of 2000, a resolution entitled ”Towards a nuclear-weapon-free world: the need of a new agenda” was approved by a vote of:

146 in favour (Canada, US, UK, China)

3 against (India, Israel and Pakistan)

8 abstentions (including France and Russia)

 

which wording included the following:

Calls for steps by all the nuclear-weapon States leading to nuclear disarmament in a way that promotes international stability, and based on the principle of undiminished security for all, for:

 

(a) Further efforts by the nuclear-weapon States to reduce their nuclear arsenals unilaterally;

...

(c) The further reduction of non-strategic nuclear weapons based on unilateral initiatives and as an integral part of the nuclear arms reduction and disarmament process;

 

(d) Concrete agreed measures to further reduce the operational status of nuclear weapons systems;

 

(e) A diminishing role for nuclear weapons in security policies to minimize the risk that these weapons will ever be used and to facilitate the process of their total elimination;

 

(f) The engagement as soon as appropriate of all the nuclear-weapon States in the process leading to the total elimination of their nuclear weapons. 

 

NATO POLICY STATEMENTS

Within NATO, the member states agreed at their April 1999 Summit (Appendix 1) that nuclear weapons would be maintained in Europe as they make a “unique contribution to rendering the risks of aggression against the Alliance incalculable and unacceptable.  Thus, they remain essential to preserve peace.”  (Para. 46)

 

In response to pressure from Canada and Germany, NATO had agreed to conduct a review of their nuclear policies. Pressure from other states resulted in the review being restricted to “options for confidence and security-building measures, verification, non-proliferation and arms control and disarmament” are concerned.   NATO issued the resulting report in December 2000 (Appendix 2) and a Ministerial Statement from the Defence Ministers on December 5, 2000 (Appendix 3) - both of which postdated the NPT Review and the UN Resolutions.                 

NATO’s Report acknowledged the commitment made under Article VI of the NPT and recited the promises made at the conference.  No advice was rendered on how NATO would operationalise these promises.  Various confidence building measures were proposed but nothing was said about removing nuclear weapons from NATO control, nor about moving to a “No First Use” policy, nor was there any request made of its member states to adopt a de-alerted position for their nuclear weapons. 

 

The meetings of NATO’s Ministers of Defence concluded with a Ministerial Statement which commented:

 

“NATO's nuclear forces are a credible and effective element of the Alliance's strategy of  preventing war, and they are maintained at the minimum level of  sufficiency to preserve peace and stability, and under conditions that  meet the highest standards of safety and security. Nuclear forces based in Europe and committed to NATO continue to provide an essential political and military link between the European and North American members of the Alliance.” (Final Communiqué M DPC/NPG -2 (2000) 115.)

 

Thus we are left with the contradiction between the obligation of NATO states to eliminate their nuclear weapons and the stated intention of the NATO states to maintain their nuclear forces.

 

We therefore recommend that the Government of Canada:

1.  acknowledge publicly the legal obligation to “pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” (Conclusions, Advisory Opinion of the International Court of Justice on the Legality of the Use and Threat of Use of Nuclear Weapons, paragraph 105(F) );

 

2.  reaffirm the illegality of the use and threat of use of nuclear weapons to the NATO Nuclear Planning Group and call for NATO policy to immediately prohibit the use and threat of use of nuclear weapons in any circumstances;

 

3.  thereafter, in accordance with Canada’s status as a non-nuclear state, cease participation on the NATO Nuclear Planning Group;

 

4.  call for the removal of substrategic nuclear weapons in Europe to eliminate the risk of their accidental or intentional use in Europe; and

 

5.  call for transparency of policy and activities in NATO particularly with respect to those dealing with nuclear weapons.   

 

 

Appendix 1

 

The Alliance’s Strategic Concept

Approved by the Heads of State and Government participating in the

meeting of the North Atlantic Council in Washington D.C.

on 23rd and 24th April 1999.

 

46.To protect peace and to prevent war or any kind of coercion, the Alliance will maintain for the foreseeable future an appropriate mix of nuclear and conventional forces based in Europe and kept up to date where necessary, although at a minimum sufficient level. Taking into account the diversity of risks with which the Alliance could be faced, it must maintain the forces necessary to ensure credible deterrence and to provide a wide range of conventional response options. But the Alliance's conventional forces alone cannot ensure credible deterrence. Nuclear weapons make a unique contribution in rendering the risks of aggression against the Alliance incalculable and unacceptable. Thus, they remain essential to preserve peace.

 

Characteristics of Nuclear Forces

 

62.The fundamental purpose of the nuclear forces of the Allies is political: to preserve peace and prevent coercion and any kind of war. They will continue to fulfil an essential role by ensuring uncertainty in the mind of any aggressor about the nature of the Allies' response to military aggression. They demonstrate that aggression of any kind is not a rational option. The supreme guarantee of the security of the Allies is provided by the strategic nuclear forces of the Alliance, particularly those of the United States; the independent nuclear forces of the United Kingdom and France, which have a deterrent role of their own, contribute to the overall deterrence and security of the Allies.

 

63.  A credible Alliance nuclear posture and the demonstration of Alliance solidarity and common commitment to war prevention continue to require widespread participation by European Allies involved in collective defence planning in nuclear roles, in peacetime basing of nuclear forces on their territory and in command, control and consultation arrangements.  Nuclear forces based in Europe and committed to NATO provide an essential political and military link between the European and the North American members of the Alliance. The Alliance will therefore maintain adequate nuclear forces in Europe. These forces need to have the necessary characteristics and appropriate flexibility and survivability, to be perceived as a credible and effective element of the Allies' strategy in preventing war. They will be maintained at the minimum level sufficient to preserve peace and stability.

 

64.The Allies concerned consider that, with the radical changes in the security situation, including reduced conventional force levels in Europe and increased reaction times, NATO's ability to defuse a crisis through diplomatic and other means or, should it be necessary, to mount a successful conventional defence has significantly improved. The circumstances in which any use of nuclear weapons might have to be contemplated by them are therefore extremely remote. Since 1991, therefore, the Allies have taken a series of steps which reflect the post‑Cold War security environment. These include a dramatic reduction of the types and numbers of NATO's sub‑strategic forces including the elimination of all nuclear artillery and ground‑launched short‑range nuclear missiles; a significant relaxation of the readiness criteria for  nuclear‑roled forces; and the termination of standing peacetime nuclear contingency plans. NATO's nuclear forces no longer target any country.  Nonetheless, NATO will maintain, at the minimum level consistent with the prevailing security environment, adequate sub‑strategic forces based in Europe which will provide an essential link with strategic nuclear forces, reinforcing the transatlantic link. These will consist of dual capable aircraft and a small number of United Kingdom Trident warheads.  Sub‑strategic nuclear weapons will, however, not be deployed in normal circumstances on surface vessels and attack submarines.

 

Appendix 2

 

Report on Options for Confidence and Security Building Measures (CSBMs), Verification, Non‑Proliferation, Arms Control and Disarmament

 

M-NAC 2(2000)121

72.The context of Alliance nuclear policy is set out in the 1999 Strategic Concept: "To protect peace and to prevent war or any kind of coercion, the Alliance will maintain for the foreseeable future an appropriate mix of nuclear and conventional forces based in Europe and kept up to date where necessary, although at a minimum sufficient level. Taking into account the diversity of risks with which the Alliance could be faced, it must maintain the forces necessary to ensure credible deterrence and to provide a wide range of conventional response options. But the Alliance's conventional forces alone cannot ensure credible deterrence.  Nuclear weapons make a unique contribution in rendering the risks of aggression against the Alliance incalculable and unacceptable. Thus, they remain essential to preserve peace."

 

73.  During the Cold War, NATO's nuclear forces played a prominent role in the Alliance strategy. They were integrated into the whole of NATO's force structure (ground, sea, and air), and the Alliance maintained a variety of targeting plans, which could be executed at short notice. This role entailed high readiness levels and quick‑reaction alert postures for significant parts of NATO's nuclear forces.

 

74.  In light of the end of the Cold War, since 1991 the Alliance has taken far‑reaching steps to adapt its overall strategy, policy and force posture to take into account the improved security environment. NATO has radically reduced its reliance on nuclear forces. Its strategy remains one of war prevention but it is no longer dominated by the possibility of nuclear escalation. Its nuclear forces are no longer targeted against any country, and the circumstances in which their use might have to be contemplated are now considered to be extremely remote.

 

75.  The types and numbers of NATO's sub‑strategic forces have been dramatically reduced, and the number of land‑based nuclear warheads in Europe has been reduced by over 85 percent. Additionally, sub‑strategic warheads are no longer deployed under normal circumstances on surface vessels and attack submarines. Systems such as nuclear land mines, nuclear artillery, air‑to‑surface missiles,  anti‑submarine warfare depth bombs, surface‑to‑air missiles and short and intermediate‑range surface‑to‑surface missiles were all removed from Europe, and a number of modernisation or replacement plans for follow‑on systems were cancelled by the Alliance's nuclear powers. In addition, NATO nuclear storage sites have also undergone a massive reduction of about 80 percent as weapon systems were eliminated and their number of stored weapons was reduced.

 

76.  Today, the only land‑based sub‑strategic nuclear weapons available to NATO are U.S. nuclear bombs capable of being delivered by dual‑capable aircraft (DCA). These remaining gravity bombs are stored safely in very few storage sites under highly secure conditions. In addition to the sub‑strategic U.S. nuclear weapons, there are a small number of UK Trident SSBN weapons available for a sub‑strategic  role.

 

77.  Due to the new security environment NATO has also taken a number of steps to decrease the number and readiness‑levels of its dual‑capable aircraft. At the height of the Cold War, quick‑reaction alert capable of launching within minutes was maintained for a portion of these aircraft, whereas nuclear readiness is now measured in weeks and months. There are no longer any NATO sub‑strategic nuclear forces in Europe on alert.

 

 

 

Appendix 3

 

Final Communiqué

 

Meeting of the North Atlantic Council in Defence Ministers

Session held in Brussels on 5 December 2000

Final Communiqué

M DPC/NPG -2 (2000) 115

              

7.  At our Nuclear Planning Group meeting, we reviewed the status of NATO's nuclear forces and other related issues and activities. We received with appreciation presentations by the United States Secretary of Defense which included further information on U.S.‑Russian efforts to establish a Joint Data Exchange Center in Moscow to share information from early warning systems regarding missile launches.

 

8.  We affirmed the continuing validity of the fundamentally political purpose and the principles underpinning the nuclear forces of the Allies as set out in the Alliance's 1999 Strategic Concept. NATO's nuclear forces are a credible and effective element of the Alliance's strategy of  preventing war, and they are maintained at the minimum level of  sufficiency to preserve peace and stability, and under conditions that  meet the highest standards of safety and security. Nuclear forces based in Europe and committed to NATO continue to provide an essential political and military link between the European and North American members of the Alliance.

 

9.  We reaffirmed the continued importance attached by Allies to full implementation of and compliance with international nuclear disarmament and non‑proliferation regimes. We confirmed our  commitments made at this year's Review Conference on the Treaty on  the Non‑Proliferation of Nuclear Weapons (NPT) and will contribute  to carrying forward the conclusions reached there. NATO Allies continue to support the ratification, early entry into force, and full implementation of the Comprehensive Nuclear Test Ban Treaty (CTBT), and remain committed to the immediate commencement and rapid conclusion of negotiations on a non‑discriminatory, multilateral and internationally and effectively verifiable and universal Fissile Material Cut‑Off Treaty (FMCT).

 

10.  We expressed our full support to the United States and the Russian Federation for an early implementation of START II and for future  negotiations on the basis of an agreed START III framework to  reduce significantly the number of deployed strategic nuclear warheads of both countries. We also recalled the drastic reductions of NATO's  nuclear forces in the new security environment, and renewed our call on Russia to complete the reductions in its non‑strategic nuclear weapons stockpile, as pledged in 1991 and 1992 for implementation  by the end of the year 2000.

 

11.  We welcomed the resumption of exchanges with the Russian Federation on a range of nuclear weapons issues, under the auspices of the NATO‑Russia Permanent Joint Council, and we look forward to further exchanges in the spirit of improved transparency and full reciprocity.

 

12.  At the 1999 Washington Summit, the Alliance agreed to consider options for confidence and security building measures, verification,  non‑proliferation and arms control and disarmament in the light of overall strategic developments and the reduced salience of nuclear  weapons. We received a comprehensive final report on the nuclear elements of this work and endorsed its conclusions, in particular proposals made in the area of confidence and security building measures and increased transparency as a basis for enhanced  understanding, trust and cooperation. We commend the High Level Group for this valuable contribution to the overall Alliance work in fulfilling the Summit remit.