This Article examines the term “nuclear disarmament” within Art. VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, and it offers a new interpretation that accepts as compliance a full spectrum of partial disarmament steps. Historically, the U.S. legal position has emphasized the view that the NPT fails to require more than the pursuit of nuclear disarmament talks. This view has contributed to a disarmament process that many states characterize as too slow and too slight. This Article proposes that a shift in emphasis, from an occasional pursuit of negotiations, to a more ongoing and detailed discussion of potential measures, should neutralize this complaint and yet preserve U.S. flexibility. This outcome would better position the U.S. to address its most urgent nonproliferation concerns. In short, this Article examines a term that American scholars and practitioners have neglected in an important respect, and it provides an understanding of that term beyond what other legal writers have offered, with significant diplomatic and strategic implications.
Introduction
From the vantage point of 2011, a torrent of nuclear arms curtailment proposals now surges forth from a series of news articles penned by four distinguished statesmen.[1] Though radical, the principles enumerated therein have since gained currency across the political spectrum, in the U.S. and abroad.[2] Such momentum[3] offers perhaps some hope for movement on our most urgent nonproliferation matters.[4] This paper explores the important linkage between the success of U.S. nonproliferation efforts and the perception of U.S. conduct under the Nuclear Non-Proliferation Treaty (NPT).[5]
This linkage has two aspects. First, other states find it difficult to support U.S. nonproliferation efforts, because America is perceived as avoiding its own disarmament obligations under NPT Article VI.[6] Second, negotiated reductions and other measures not only satisfy such obligations, but diminish the probability of accidental, mistaken, or unauthorized use.[7] Thus, properly understood, Article VI contains the key not only to removal of this diplomatic stumbling block but to an improved security environment.[8] Indeed, this paper will consider the impact of such measures on U.S. alliances and security guarantees, recalling that the status quo carries its own pronounced risks.[9]
Here, it is necessary to emphasize four limitations to the scope of this undertaking. First, this paper does not argue that satisfaction of the complaint of U.S. non-performance under the NPT will beget automatic progress on U.S. nonproliferation concerns. However, it should neutralize that complaint, which has been used with some success to deflect U.S. nonproliferation concerns.[10] Thus, to the extent that the U.S. can be seen as living up to its obligations under the NPT, the odds of addressing U.S. nonproliferation concerns necessarily improve.
Second, this paper’s investigation into the meaning and interpretation of Article VI is not, in an important sense, complete. Though authoritative, the sources canvassed in support of this interpretation are limited to those printed in the English language, while the Chinese, French, Russian, and Spanish versions of the treaty are equally authoritative.[11] Nevertheless, the interpretation set forth here must inform subsequent Article VI analysis.[12]
Third, though the “nuclear disarmament” prong of Art. VI has not received intense scrutiny, the same cannot be said for Article VI as a whole.[13] Rather than recast the entire provision, this paper seeks instead to clarify this particular facet. Fourth, the conclusions reached in this paper are aimed to encourage, but not resolve, the inquiry into how much nonproliferation progress to expect in return for reductions of varying sizes.
With these objectives and limits in mind, Part II will introduce the NPT, posit an interpretation of Article VI, and summarize the implications of this interpretation for recent and longstanding nonproliferation initiatives, U.S. security guarantees, and U.S. strategy going forward. Part III subjects this interpretation to legal analysis under relevant principles of international law. Part IV concludes with a final, overarching policy rationale for accepting some meaningful reduction in the U.S. nuclear arsenal.
[1]. See Michael E. O’Hanlon, A Skeptic’s Case for Nuclear Disarmament 1-2, 145 n.1 (2010) (describing the Global Zero movement initiated by one hundred signatories in Paris in 2009, President Obama’s 2009 speech on in Prague, U.S. and Russian reductions under the New START Treaty, and an arguably lesser reliance on nuclear forces in the April 2010 U.S. Nuclear Posture Review). See, e.g., George P. Shultz, William J. Perry, Henry A. Kissinger & Sam Nunn, A World Free of Nuclear Weapons, Wall St. J., Jan. 4, 2007, at A15; Shultz et al., Toward A Nuclear-Free World, Wall St. J., Jan. 15, 2008, at A13; Shultz, et al., How to Protect Our Nuclear Deterrent, Wall St. J., Jan. 19, 2010, at A17; Shultz et al., Deterrence In The Age of Nuclear Proliferation, Wall St. J., Mar. 7, 2011, at A15.
[2]. See Strobe Talbot, Foreword to O’Hanlon, supra note 1, at 3.
[3]. See Compliance and Growth—NPT Review Conferences—2010 Review Conference, Nuclear Threat Initiative, http://www.nti.org/h_learnmore/npttutorial/chapter04_01.html#2010 (last visited April 6, 2011) (“While some disappointment continues to exist . . . with regard to lack of a more concrete commitment . . . , it was obvious that the change of U.S. policy was directly reflected in the result of the disarmament action agenda. Moreover, pursuing policies to achieve a world without nuclear weapons was articulated in the first action item.”).
[4]. See, e.g., Karen DeYoung, Pakistan Doubles Its Arsenal: As India is Surpassed by Rival, U.S. Faces a Diplomatic Quandary, Wash. Post, Jan. 31, 2011, A1, 10 (discussing the South Asian arms race; U.S. economic, political, and defense ties with India; the Pakistani role in the U.S. war in Afghanistan; and U.S. nonproliferation concerns) (“Adoption of . . . the ‘fissile materials cutoff treaty’ . . . requires international consensus . . . [and] ‘[p]atience is running out.’”).
[5]. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter NPT]. See Philip Bobbitt, Terror and Contest: The Wars for the Twenty-First Century 529 (2008) (“The states of consent must conform their strategic behavior to the rule of law; and the law to which they conform must be reformed to take into account changes in the strategic context.”). This linkage reflects “the growing union of strategy and law,” despite the emphasis, here, on clarification rather than reform. Id. at 545.
[6]. Andrew Grotto, Why Do States That Oppose Nuclear Proliferation Resist New Nonproliferation Obligations?: Three Logics of Nonproliferation Decision-making, 18 Cardozo J. Int’l & Comp. L. 1, 5 (2010); Graham Allison, Thinking About Zero, in Nuclear Disarmament and Nonproliferation 5, 10 (2010) Shultz et al., Deterrence In The Age of Nuclear Proliferation, supra note 1, at 2.
[7]. Shultz, et al., Deterrence In The Age of Nuclear Proliferation, supra note 1, at 2.
[8]. See Allison, Thinking About Zero, supra note 6, at 11 (“To be preferable to the current path, an alternative has only to have a higher expected value than the near certainty of the spread and use of nuclear weapons in regional wars and by terrorists . . . .”).
[9]. See Shultz et al., Deterrence in the Age of Nuclear Proliferation, supra note 1, at 1 (“It is not possible to replicate the high-risk stability that prevailed between the two nuclear superpowers during the Cold War . . . . The growing number of nations with nuclear arms and differing motives, aims and ambitions poses very high and unpredictable risks and increased instability.”).
[10]. See Allison, supra note 6, at 10.
[11]. NPT, supra note 5, art. XI.
[12]. The English version is, after all, authoritative in its own right.
[13]. See, e.g., Christopher A. Ford, Debating Disarmament: Interpreting Article VI of the NPT, 14 Nonproliferation Rev. 3 (2007); David Koplow, Parsing Good Faith: Has the United States Violated Article VI of the Nuclear Non-Proliferation Treaty?, 1993 Wis. L. Rev. 301 (1993).Kiernan
