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119. Deputy Legal Adviser Bettauer's address before Lawyer's Committee on Nuclear Policy re U.S. compliance with nuclear policy (October 10, 2006)


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I would like to thank the Association of the Bar of the City of New York, and the Committee on International Security Affairs, for inviting me to participate on this panel. Let me start by noting that some of the comments I intend to make today will express my own view and not necessarily those of the Department of State.

The topic of today's discussion is: "Is the United States in Compliance with International Law on Nuclear Weapons?" The occasion for this discussion is the 10th anniversary of the ICJ's advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. So, I will begin by considering the international law relevant to nuclear weapons through the lens of the court's advisory opinion. We should keep in mind, of course, that the opinion was intended to provide advice to the UN General Assembly and, that the Court’s conclusions are advisory, not legally binding. Because the topic of today's discussion is broader than the threat or use of nuclear weapons, I will also briefly review the relevant treaty obligations regarding disarmament, focusing particularly on article VI of the Treaty on the Nonproliferation of Nuclear Weapons (NPT).

Finally, I will briefly state why I believe the United States is in compliance with international law on nuclear weapons, noting the United States’ good record of implementing its NPT article VI obligations through unilateral, bilateral and multilateral measures relating to disarmament.

SUMMARY OF ICJ OPINION

As you will recall, in 1996 the ICJ issued its advisory opinion in response to the following question posed by the UN General Assembly: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" The answers in the Court’s dispositif were summarized in the flyer announcing this panel. I will review its answers briefly:

-- First, having examined both customary international law and conventional international law, the Court concluded that there is neither any specific authorization for the threat or use of nuclear weapons nor any comprehensive and universal prohibition against the threat or use of nuclear weapons.

-- Next, the Court stated unanimously that "a threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful" and that a threat or use of nuclear weapons “should also be compatible with the requirements of the international law applicable in armed conflict, particularly international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons”;

-- Then comes the Court's most contentious finding - not easily interpreted, much less applied. It stated: "it follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; however, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-­defense, in which the very survival of a State would be at stake." This finding was reached by a 7-7 vote, with a “casting vote” by President Bedjaoui. There is no reasoning in the opinion supporting this finding.

-- Finally, going beyond the scope of the question asked, the Court concluded by stating that: "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."

I will come back to this last reply, but first I would like to take a few minutes to address what I think are the most important elements in the Court's reasoning concerning the use or threat of nuclear weapons, and in particular its review of the relevant law.

NUCLEAR WEAPONS AND LAW OF ARMED CONFLICT

First, it is important to note that, despite arguments advanced that obligations relating to the protection of life, property and the environment prohibited the use of nuclear weapons, the Court concluded that the most relevant applicable law concerning the threat or use of nuclear weapons is that relating to the use of force in the UN Charter and the law of armed conflict, in particular international humanitarian law, together with specific treaties on nuclear weapons. The Court declined to accept the view put forward by some that the use of nuclear weapons could not comply with the requirement that the exercise of self­-defense be proportionate to the armed attack against which it is directed. Moreover, it found that treaties regulating the use of other weapons (for example, treaties governing the use or stockpiling of chemical or biological weapons) were not intended to govern the threat or use of nuclear weapons.

The Court also considered the various restrictions embodied in agreements (such as the NPT) that specifically deal with nuclear weapons and concluded that, while they might be seen as "foreshadowing a future general prohibition of the use of such weapons," they do not amount to a general prohibition of all use of nuclear weapons. Similarly, the Court concluded after a comprehensive review of various arguments that the requisite opinio juris does not exist to create a general prohibition on the threat or use of nuclear weapons under customary international law. In this connection, the Court cited in particular the "still strong adherence to the practice of deterrence" as evidence that a customary rule had not emerged.

The Court did address the applicability to nuclear weapons of the principles and rules of humanitarian law and of the principle of neutrality, but could not really take its analysis much beyond the fairly non-controversial conclusion that the threat or use of nuclear weapons would be subject to these principles and rules. It recognized that legality would have to be assessed in view of the specific circumstances. In this light, its finding that nuclear weapons are "generally" prohibited is curious, since it fails to address the specific circumstances and is not backed up by persuasive reasoning. I suspect the Court – and specifically President Bedjaoui – based this statement more on a horror of nuclear weapons than on any legal reasoning. Nonetheless, the Court also found that under certain narrow circumstances, the threat or use of nuclear weapons could be legal.

In commentary following the issuance of the Court's opinion, scholars have differed on the significance and nature of the even split in the Court on its core finding that the threat or use of nuclear weapons would generally be contrary to the rules of international humanitarian law. Many writers have also sought to divine the meaning of the door left open by the Court for the possibility that the threat or use of nuclear weapons might be lawful "in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."

In my view, as well as that of my State Department colleagues directly involved in the case, it is important to note that the opinions of at least six judges seem to take the view that there are indeed circumstances in which the threat or use of nuclear weapons would not be unlawful, and the opinions of several others do not give a clear indication of their view on this question. Only three judges clearly expressed the contrary conclusion that all uses of nuclear weapons would be unlawful. The simple fact that commentators have different understandings of "extreme self-defence" shows the Court's lack of clarity on this point. It is thus difficult at this stage to say that, at the end of the day, the Court has provided any meaningful guidance on the matter.

At the time the Court's opinion was rendered, the United States made clear that, even though the United States had opposed the Court's decision to respond to the General Assembly's request because of the question's highly abstract and hypothetical nature, we believed that much of the Court's discussion was generally reflective of the state of international law in this area. We also made clear that the United States did not believe the Court's response, which as I noted is not binding on Governments in any event, necessitated any changes in the nuclear posture and policy of the United States, including with respect to the Court's finding relating to nuclear disarmament negotiations.

DISARMAMENT OBLIGATIONS UNDER NPT ARTICLE VI

The Court’s statement on disarmament obligations was based on its view of the undertaking in article VI of the Nuclear Nonproliferation Treaty. The NPT is the central and most widely adhered to treaty dealing with nuclear weapons. Under article I of the Treaty, the nuclear-weapons states committed not to transfer nuclear weapons and not to assist, encourage or induce any non­-nuclear-weapons state to manufacture or acquire nuclear weapons, just as under article II non-nuclear weapons states undertake not to receive the transfer of nuclear weapons, not to manufacture or otherwise acquire them and not to seek or receive any assistance in their manufacture. Under article III, all state parties - nuclear-weapons states and non-nuclear-weapons states - agreed not to provide any non-nuclear-weapons state source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material unless the source or special fissionable material is subject to the required safeguards. The United States has a long record of compliance with these NPT obligations relating to the nonproliferation of nuclear weapons, and insists upon such compliance by others.

However, the Court’s opinion focused primarily on the undertaking of all NPT states parties with regard to the disarmament issues in article VI. So, I will spend a little more time on this point. As an initial matter, it's worthwhile to take a minute and look at the text of article VI. It provides:

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 obligations in article VI apply to all states, not only to nuclear-weapon states. Article VI does not establish any specific timelines for the fulfillment of the obligations it states. The only reference to timing in the text is very general - that is, that negotiations relating to "cessation of the nuclear arms race" are to achieve that goal "at an early date." And indeed, the nuclear arms race between the United States and Russia has in fact ended.

So we are left with the remainder of the obligations under article VI, namely to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a Treaty on general and complete disarmament under strict and effective international control. With regard to the nuclear disarmament obligation, the article does not require the consummation of a treaty or agreement for its fulfillment. Rather, it requires the pursuit of negotiations in good faith on effective measures, without reference to any specific measures or any specific requirement that a result be achieved. Indeed, proposals to incorporate specific nuclear disarmament measures into the NPT were floated but not adopted during its negotiation.

Even more to the point - and of direct relevance to the advisory opinion - article VI creates a clear linkage between the nuclear disarmament obligation and the general and complete disarmament obligation. Nuclear disarmament would logically be an element of general and complete disarmament, and this linkage is reflected in the text of article VI. The penultimate preambular paragraph in the NPT further underscores this linkage, citing a number of specific nuclear disarmament measures - cessation of manufacture, stockpile liquidation, elimination of arsenals - that would be "pursuant to a Treaty on general and complete disarmament under strict and effective international control." The negotiating history of the NPT further supports the view that efforts toward nuclear disarmament would be linked with efforts toward general and complete disarmament.

Although the issue of disarmament obligations was outside the scope of the question the General Assembly posed, the Court nonetheless opined that the NPT article VI obligation is "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." In my view, the Court failed to recognize and give due weight to the linkage between the nuclear disarmament obligation and the general and complete disarmament obligation. Regretfully, it is hard to see much global progress toward general and complete disarmament, and the pursuit of negotiations towards that goal by all states parties is integrally tied to the requirement for the pursuit of negotiations on nuclear disarmament by nuclear-weapon states.

The Court opined that the obligation is to "achieve a precise result ... by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith." While an obligation to pursue negotiations in good faith toward a particular result includes a duty to make all reasonable efforts to reach that result through the negotiating process, the Court did not suggest any timetable or negotiating forum for reaching it. Nor did it find what would constitute "effective measures" and "strict and effective international control" as those terms are used in article VI. In this light, I must say I find the Court’s conclusion that article VI contains an “obligation of result” to be puzzling. The Court’s opinion doesn’t provide any reasoning to support this conclusion and the plain language of article VI doesn’t call for a result, but rather calls for good faith pursuit of negotiations. And that is all that any states in the international community could promise. Any treaty on general and complete disarmament could in fact only be elaborated through the detailed negotiation of complex issues concerning the phasing of reductions, elimination of stocks, verification and compliance procedures, and so forth.

Obviously, there is no current negotiation of a treaty on general and complete disarmament. But, the United States has nonetheless continued to press forward, on the one hand, to pursue rigorous nuclear non-proliferation goals, and, on the other hand, to negotiate and implement nuclear arms control agreements.

2000 NPT REVIEW CONFERENCE

Before turning to the record of the United States in meeting its nuclear obligations under international law, I would like to discuss briefly one document that does not state international law obligations. Some individuals (including Mr. Weiss, I believe) have taken the view that the Final Document of the 2000 NPT Review Conference forms part of the international law relating to nuclear weapons. They point to the thirteen practical steps detailed in the 2000 Final Document, which by their terms state they are intended "for the systematic and progressive efforts to implement article VI" of the NPT. However, as this description implies, the steps identified in the 2000 Final Document cannot be considered to contain legal obligations.

The Vienna Convention on the Law of Treaties states that treaty interpretation looks to "the ordinary meaning” of the treaty terms “in their context and in the light of its object and purpose." The Vienna Convention further notes that, in determining the context of the treaty, we may take into account: (1) "any subsequent agreement between the parties regarding interpretation of the treaty"; or (2) "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation." But the thirteen steps in the 2000 Final Document cannot legitimately be viewed as constituting either a "subsequent agreement" or "subsequent practice" for purposes of implementing article VI.

First, the 2000 Final Document did not describe the thirteen steps as an agreement on the meaning of article VI - and surely the States Parties to the NPT would have insisted on such clarity if they had intended that these steps would constitute legally binding interpretations of the obligations under article VI. The United States certainly would have. On the contrary, the 2000 Final Document describes the thirteen steps as "practical steps" for the "systematic and progressive efforts to implement article VI"; nowhere do they purport to interpret the meaning of article VI.

Moreover, the form and language of the 2000 Final Document confirm that it is a report, not an additional agreement between States Parties to the NPT. It represents consensus among the participants in the Review Conference on a list of "practical steps" for implementing article VI. It does not contain any language suggesting the participants have entered into a legally binding commitment under international law to achieve these steps. As for the steps themselves, many are stated in terms that are so general and aspirational that they clearly could not be interpreted as legally binding. To cite just a few examples, the Final Document lists:

· "the importance and urgency of signatures and ratifications" of the Comprehensive Nuclear Test Ban Treaty (CTBT);

· "the necessity of negotiations" on a fissile material cutoff treaty (FMCT);

· "the principle of irreversibility";

· “the further development" of verification capabilities.

Such language does not establish standards against which any particular State Party to the NPT could be judged. Rather, it sets forth objectives of NPT parties as a whole. Any failure to achieve one of the steps would be a collective failure, not an instance of "noncompliance" by any particular state. A key characteristic of legally binding undertakings is that they set standards against which compliance can be judged. The thirteen steps fail to do this.

Although the Review Conference final documents are important political statements, the measures recommended in those documents are not in and of themselves legally binding on any of the NPT states parties and a failure to implement one or more of them could not as a legal matter constitute noncompliance with the NPT. That said, the United States has a solid record in pursuing many of the steps identified in the 2000 Final Document, and in a moment I will review some of the U.S. accomplishments in that regard.

U.S. RECORD: USE OR THREAT OF NUCLEAR WEAPONS

So, what is the U.S. record of compliance with international law on nuclear weapons?

Thankfully, not since World War II has the United States used or threatened the use of nuclear weapons. The United States has always maintained that the law of armed conflict, as well as principles relating to the inherent right of all states to self-defense, govern any use of nuclear weapons. In the absence of any threat or use of nuclear weapons, of course there is no issue of noncompliance with the relevant provisions of the UN Charter or the law of armed conflict by the United States.

The United States also acknowledges that specific treaty obligations relating to the use of nuclear weapons apply. As the advisory opinion noted, in Additional Protocol II to the Treaty of Tlatelolco, the United States and other nuclear weapon states undertook "not to use or threaten to use nuclear weapons against the Contracting Parties of the Treaty for the Prohibition of Nuclear Weapons in Latin America." The security assurance given by the United States was accompanied by a declaration, noting:

That as regards the undertaking in Article 3 of Protocol II not to use or threaten to use nuclear weapons against the Contracting Parties, the United States Government would have to consider that an armed attack by a Contracting Party, in which it was assisted by a nuclear-weapon state, would be incompatible with the Contracting Parties' corresponding obligations under Article I of the Treaty.

This means that the United States would not be bound by its undertaking in

the event that a Contracting Party were assisted by or in alliance with a nuclear weapon state. [1]

In addition to the legally binding assurances in the protocol to the Treaty of Tlatelolco, the United States has joined with other nuclear weapon states in providing similar assurances to all non-nuclear weapons states parties to the NPT that are not legally binding, for example those memorialized in UN Security Council Resolution 255 of 1968. The United States has fully complied with both its binding and non-binding security assurances in this area.

The long-standing policy of nuclear deterrence clearly does not violate international law any more than the maintenance of a standing army does. The Court declined to opine on the general policy of deterrence, but its conclusions that the use of nuclear weapons is not prohibited by any rule of treaty or customary international law, and may not be unlawful in some circumstances, necessarily leads to the conclusion that, for those states that are not bound by Article II of the NPT, it cannot be unlawful to merely possess nuclear weapons and have the technical and military ability to use them, if and when circumstances warranting their use were to arise. Treaties like the NPT explicitly recognize the possession of nuclear weapons by certain states, and others like the CTBT and the proposed FMCT do so implicitly. Thus, while there is an obligation to pursue negotiations in good faith toward nuclear disarmament (in the context of general and complete disarmament), nothing in customary international law makes possession of nuclear weapons or nuclear deterrence unlawful for states not bound by Article II of the NPT. Consequently, there is no issue of U.S. noncompliance here.

U.S. RECORD: DISARMAMENT

So, I regard the United States as being in compliance with its international legal obligations on the threat or use of nuclear weapons. That, too, unsurprisingly, is the view of the U.S. Government. Having said this, I will turn to the question of U.S. compliance with our disarmament obligations under article VI of the NPT. The United States record on its commitments to nuclear disarmament is strong. The measures the United States has undertaken unilaterally, bilaterally and multilaterally are impressive. A May 2005 statement by Ambassador Jackie Sanders, made at the 2005 NPT Review Conference, on “U.S. Implementation of Article VI and the Future of Nuclear Disarmament,” outlines these measures. This and other relevant statements are available on the Department of State website. Nevertheless, I will take a few moments to mention some of the important steps taken by the United States:

· under the Strategic Arms Reduction Treaty, or START, a treaty with Russia and three other states of the former Soviet Union, the United States reduced its deployed strategic nuclear weapons by more than 4,000 by 2001;

· since 1988, the United States has dismantled over 13,000 weapons and removed over 200 tons of fissile material from its military stockpile (enough for 8,000+ weapons);

· under the 2002 Moscow Treaty with the Russian Federation, the United States has undertaken to further reduce its numbers of operationally deployed strategic nuclear weapons to between 1,700 and 2,200 by 2012.

· The United States has not conducted any nuclear weapons tests since 1992, in accordance with its unilateral moratorium on testing;

· The United States has not produced fissile material for use in nuclear weapons since 1988; in addition, we have tabled a draft text for a Fissile Material Cut-Off Treaty in the Conference on Disarmament;

· The United States has eliminated nearly 90% of U. S. non-strategic nuclear weapons and reduced the number of types of nuclear systems in Europe from five in 1991 to just one today;

· The United States has deactivated all 50 Peacekeeper ICBMs, its most modern ICBM, removing a total of 500 nuclear warheads from deployed status;

· The United States has removed four ballistic missile submarines from strategic service, removing hundreds more nuclear warheads from deployed status;

· Together with the Russian Federation, the United States has eliminated under the terms of the HEU Agreement more than 260 metric tons of high-enriched uranium - equivalent to more than 10,000 warheads; and,

· The United States has committed, with the Russian Federation, to eliminate 68 metric tons (34 metric tons each) of weapons-grade plutonium excess to defense needs.

As this suggests, we have come a very long way since the framing of article VI of the NPT. While we understand that many nations would want to hasten the pace of nuclear disarmament, I must reiterate that this is an obligation of all Parties to the NPT, not just the United States. It is clear that the United States is doing its share – indeed more than its share – here. And equally important, nuclear disarmament is an obligation explicitly linked to the twin objective of general and complete disarmament. Given the current state of the world in that regard, and in particular the continuing pursuit of nuclear weapons by some countries (including some in violation of their NPT obligations), the steps taken by the United States to implement its obligations under article VI have been quite robust.

In conclusion, the United States has not only complied with its international legal obligations regarding the threat or use of nuclear weapons, but has worked assiduously to implement its disarmament obligations under the NPT.

Thank you.



[1] See Jonathan Schwartz, Controlling Nuclear Proliferation: Legal Strategies of the United States, 20 Law and Policy in Int'1 Bus. 1, 10 (1988).



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