Issue No. 36, April 1999
Diplomatic Judo: Using the NPT to Make the Nuclear-Weapons
States Negotiate the Abolition of Nuclear Weapons
By Zia Mian & M. V. Ramana
Progress on nuclear arms control has become a case of one step
forward, two steps back. Despite the end of the Cold War and
collapse of the Soviet Union, the conclusion of a Comprehensive
Test Ban Treaty, after more than forty years of effort, and despite
the judgement by the International Court of Justice, the Canberra
Commission report, and the public calls by numerous retired
military and political leaders to abolish nuclear weapons, the goal
of a nuclear weapon free world seems more distant now than it did a
decade ago when, at the Reykjavik Summit in 1986, Presidents
Gorbachev and Reagan discussed the elimination of nuclear weapons.
At the moment, the five nuclear weapon powers, especially the US
and Russia, are unwilling to even consider disarmament. The US in
particular seems to be investing in a modernized, lean-and-mean,
nuclear armed future.
In this paper we explore a route by which the States possessing
nuclear weapons can be brought lawfully to the negotiating table by
those that don't.
Nuclear Disarmament Efforts at the UN General
The very first resolution passed by the United Nations General
Assembly (UNGA) in 1946 called for nuclear disarmament. It is a
testament to the failure of the hopes represented by the UN that
there have been hundreds of resolutions calling for the same goal
since then, all to no avail. By and large, the nuclear-weapon
States (NWS) have treated UNGA resolutions as little more than
pious sentiment on the part of the larger international
The extent to which the NWS, especially the US, are prepared to
go to frustrate the wishes of the international community is
evident in the way the United States, almost in complete isolation,
opposed a special session of all UN member States, which the vast
majority of countries, including the European Union, wanted to be
convened in 1999 to discuss a disarmament and security agenda for
the 21st century. Such sessions have been convened in 1978, 1982
and 1988. (1)
Faced with such intransigence on the part of the powerful it is
not surprising that, as with ordinary citizens in society who are
denied justice, the non-nuclear States have turned to law. They
have increasingly started to look at the issue of nuclear weapons
in the context of international law, and to be more precise about
exactly what the community of nations means by nuclear disarmament.
In 1994, following the lead of the World Health Organization, the
UNGA posed the question, "Is the threat or use of nuclear weapons
in any circumstances permitted under international law?", to the
International Court of Justice (or World Court). Responding to
this, the Court held 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." Further, the Court went on to state,
unanimously, 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
international control." (2)
Based on this ruling, on 6 November 1996, Malaysia introduced an
important resolution, calling for compliance with the World Court
opinion. (3) This was adopted on 10 December 1996 with the support
of 115 States; there were 22 votes against and 32 abstentions.
Significantly, the nuclear-weapon States, other than China, were
opposed. Law, it seems, was not meant for them. In a separate vote,
a paragraph underlining the World Court's statement on the
obligation to negotiate nuclear disarmament was supported by 139
States. (4) In 1997 and 1998, follow-up resolutions to this were
again introduced by Malaysia and were adopted with 116 and 123
votes in favour respectively. (5)
Although the starting point for these resolutions is the
unanimous opinion of the World Court judges that there exists an
obligation for States to "pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament," their
major thrust is a call for negotiations leading to "an early
conclusion of a nuclear weapon convention prohibiting the
development, production, testing, deployment, stockpiling,
transfer, threat or use of nuclear weapons and providing for their
elimination." (6) What is significant is that these resolutions put
the demand for a Nuclear Weapons Convention (NWC) - a treaty
banning nuclear weapons similar to those already banning chemical
and biological weapons - into the international arena for the first
Besides merely calling for a Nuclear Weapons Convention,
resolutions at the UN have gone as far as specifying where
negotiations for this convention could be held. A resolution
introduced by Myanmar called for, among other things, "the
Conference on Disarmament to establish, on a priority basis, an ad
hoc committee on nuclear disarmament to commence negotiations in
early 1998 on a phased programme of nuclear disarmament and for the
eventual elimination of nuclear weapons within a time-bound
framework through a Nuclear Weapons Convention." It urged "the
Conference on Disarmament to take into account in this regard the
proposal of the twenty-eight delegations for a programme of action
for the elimination of nuclear weapons, as well as the mandate for
the ad hoc committee on nuclear disarmament, proposed by the
twenty-six delegations". (8) This was adopted with the support of
109 States in 1996, and has maintained a comparable level of
support in subsequent years.
Despite this significant and growing majority for disarmament,
and the isolation of the NWS that it reflects, the 1998 deadline
set in the Myanmar resolution is long gone. The chief obstacle to
disarmament through the UN system is the fact that while the UNGA
has clear proposals for what to negotiate, and where, the UNGA is
unable to organise collective action to pursue the goals of the
international community if it faces resistance from the major
Impasse at the CD
As the resolution proposed by Myanmar suggested, it is widely
believed that the most appropriate forum to handle issues of
disarmament is the Conference on Disarmament (CD). The CD has
achieved some success with the Chemical Weapons Convention (CWC)
and the Biological Weapons Convention (BWC). It has even made
progress with measures to prevent horizontal proliferation, such as
the partial test ban treaty and the Comprehensive Test Ban Treaty
(CTBT). However, on the question of controlling the arsenals of the
NWS, the CD has failed to find any way of making progress.
There has been some hope for talks on the Fissban (or Fissile
Material Cutoff), largely because the NWS place a high priority on
trying to limit the size of the possible arsenals of the (as yet)
non-deployed nuclear-weapon States (India, Pakistan, and Israel).
Fully aware of the effects of such a cutoff on its nuclear
ambitions, India, for a while, blocked progress on the fissban
claiming that the treaty should be firmly linked to a time-bound
program for nuclear disarmament. However, as part of its efforts to
ease international pressure in the aftermath of its May 1998
nuclear tests, India relaxed its objections and has started
participating in the negotiations at Geneva. However, as
negotiations develop, hardliners in India may force renewed
objections, as with the CTBT, because of the relatively small size
of India's fissile material stocks compared to those held by the
The main dispute in the Fissban talks will be over the question
of existing stockpiles of fissile material possessed by the
nuclear-weapon States. In the words of the Indonesian CD
ambassador, "brushing aside the issue of stockpiles, would, once
again, render the cutoff treaty a mere non-proliferation
measure...[with] no added value to date." (9) The US for its part
has announced "we will not agree to any restrictions on existing
stocks in a cut-off treaty." (10) India joins the weapon States in
its opposition to such a provision, while Pakistan insists on
talking about stockpiles and increasingly links its position to
asymmetries in the fissile material stockpiles as well as
conventional weapons levels within South Asia. (11)
These disputes have prevented actual negotiations on a Fissban
from starting despite a negotiating mandate. There are instead
demands that the CD must now discuss disarmament, which have now
led to five separate proposals dealing with disarmament. (12) Among
the countries pursuing this most vigorously are the non-aligned,
but more modest proposals have, for the first time, emerged from
members of NATO. But Western NWS and Russia oppose establishing
even an ad hoc committee on nuclear disarmament. Given the need for
consensus at the CD, there seems no hope for any progress.
In response to calls for a multilateral treaty on nuclear
disarmament, the NWS, especially the US and Russia, have stressed
bilateral negotiations aimed at limiting and reducing strategic
armaments - the START treaties.
It is important to be clear what has and has not been achieved
by the START process. The numbers usually quoted as the levels of
warheads left after implementation of these START agreements are
misleading; these numbers only refer to active operational weapons.
In all, the US stockpile with the Department of Defense contains
three categories of warheads: active operational warheads, along
with spares kept at the bases where nuclear weapons are deployed;
augmentation or "hedge" warheads not necessarily associated with
active nuclear delivery systems; and reliability replacements kept
in storage. Beyond these categories, the Energy Department has
custody of retired warheads and the "strategic reserve." (13)
Russia also keeps several thousand warheads in reserve.
If all these categories are included, it has been estimated that
the US and Russia still have over 30,000 weapons. In all, the five
nuclear-weapon States hold, between them, over 36,000 weapons.
The START process is, moreover, not designed to lead to nuclear
disarmament. This follows from the nature of the reductions - the
START process only counts the numbers of delivery vehicles and not
the fundamental core of the nuclear weapons - the pits made of
fissile material. Article II of START I reads: "Each Party shall
reduce and limit its ICBMs and ICBM launchers, SLBMs and SLBM
launchers, heavy bombers, ICBM warheads, SLBM warheads, and heavy
bomber armaments, so that seven years after entry into force of
this Treaty and thereafter, the aggregate numbers, as counted in
accordance with Article III of this Treaty, do not exceed......."
(15) There is no mention of pits being reduced. So far the pits
recovered from dismantled warheads are stored and have not been
disposed off in any fashion. This retention leads one to suspect
that the US and Russia are not in a hurry to give up the potential
to build up their arsenals, even if they are unlikely, at the
present, to do so.
To make matters worse, the START process is now stalled. The
Russian Duma is refusing to ratify START II. Since the US refuses
to move forward unilaterally on START III, it seems highly unlikely
that START will go much further in leading to lower numbers of
nuclear weapons, let alone their complete elimination, at any time
in the near future. The recent US decisions to expand NATO and to
deploy anti-ballistic missile systems as soon as it is feasible are
only likely to strengthen Russian resolve to maintain its nuclear
In the case of the US, there are other indicators that the US
intends to hold on to its nuclear weapons for the indefinite
future: the Stockpile Stewardship and modernization programs, the
plans to resume tritium production, and in particular, the recent
Presidential Guidelines for retargeting nuclear weapons which
affirms that the US will continue to rely on nuclear arms as a
cornerstone of its national security for the "indefinite future".
(16) Likewise, partly in response to NATO expansion, Russia is
reportedly considering increasing its reliance on nuclear weapons.
Since the START process is strictly bilateral, the
non-nuclear-weapon States (NNWS) have little control over either
the nature or pace of the reductions. As Miguel Marin-Bosch is said
to have observed: the non-nuclear-weapon States had been forced to
play in the arena of the cold war and now must learn to play in
The NPT - Disarmament in the Indefinite Future?
The lack of leverage that the NNWS have over the NWS is no
secret. But for over two decades there was some kind of pressure
that the NWS had to be sensitive to. It came from the NPT. The
Treaty came with a built-in time bomb: after twenty-five years the
Treaty had to be reviewed and decision made as to whether to extend
it or not. It was for this reason that the START process was
offered by NWS, and the US in particular, as evidence that they are
meeting their commitment under Article VI of the NPT to work
towards nuclear disarmament (see Appendix for the full text of
When the time came, the options for extension at the 1995 NPT
Review and Extension Conference (NPTREC) were, to put it simply,
two-fold. Either an extension, which allowed for more Review and
Extension conferences in future, at each of which it would have to
be decided whether the NPT would survive or not, perhaps based on
progress made towards disarmament. Or an unconditional and
indefinite extension, with a review process that had nothing
hinging on the outcome of such a review. Realizing what would
result from an indefinite extension, at the 1995 extension
conference the NNWS seemed to have preferred some kind of a
conditional rolling extension. This was not to be. The
nuclear-weapons States, led by the US, forced through an indefinite
The 1998 session of the Preparatory Committee (PrepCom) for the
2000 NPT Review Conference exposed the supposedly "strengthened
review process" put in place at the 1995 Review and Extension
Conference. In the words of one observer, "the much vaunted
strengthened review process sputtered to an end," because of
"systematic backtracking from the commitments made at the 1995
NPTREC ... seemingly led by the United States with the other NWS
expressing solidarity en bloc." (18) The nuclear-weapons
States have clearly gotten their NPT cake and are now eating
The present impasse and bleak future for disarmament have led to
calls for a "peasants' revolt" - a mass withdrawal by NNWS from the
NPT "unless the NWS agree in some forum to start genuine
negotiations designed to ultimately rid the world of nuclear
weapons." (19) There is, however, no need, yet, for civil
disobedience in the world of nuclear weapons; the law is still
firmly on the side of the NNWS. As the World Court pointed out, it
is the NWS who have to fulfill their Article VI obligations. The
NNWS can still call the NWS to court to demand their lawful rights
to a nuclear weapon free world.
A Way Out?
At the first PrepCom meeting for the 2000 NPT Review Conference,
as part of the NGO presentations to the delegates, one of the
authors (ZM) pointed out that the signatories of the NPT could use
Article VIII (see Appendix for the full text) of the NPT to force
negotiations towards nuclear disarmament. (20) This article
concerns the process for amending the treaty. It stipulates that
any party to the Treaty can submit an amendment to the Treaty.
Then, if one third of the Parties to the Treaty (about 60 States)
indicate their support, the Depository Governments for the treaty
must convene a conference to consider the amendment.
Such an amendment can be written expressly as a fulfillment of
the commitment to disarm (Article VI) and to transform the NPT
itself into a Nuclear Weapons Convention. The precise form of the
amendment is not important as long as it is acceptable to at least
one-third of NPT parties. A simple amendment could, for example, be
based on Article I of the Biological Weapons Convention (21), and
would just add a new article to the NPT saying :
"Recognising their obligations under Article VI, each State
party to the Treaty undertakes never in any circumstances to
develop, produce, stockpile, or otherwise acquire or retain:
i) Nuclear Weapons or fissile materials, whatever their origin
or method of production, that can be used for producing nuclear
ii) Equipment or means of delivery designed to use such nuclear
weapons or materials for hostile purposes or in armed conflict.
iii) The verification procedures for realizing these are
contained in the protocol to the Treaty."
The Conference that would be called to discuss such an amendment
would become, in fact, a negotiating forum with a mandate to
abolish nuclear weapons. Every signatory to the NPT would have to
attend the conference as an obligation under the terms of the NPT.
Calling such a conference to amend the NPT offers a way for the
NNWS to exert leverage on the nuclear disarmament process. The
enormous investment of political capital that the NWS have made in
the NPT in an effort to preserve their nuclear weapons hegemony can
be used against them. With the whole world watching, the NWS would
have to decide just how much of a cornerstone the NPT is to
maintaining the current order.
Judging from the case of the 1995 extension of the NPT, one can
expect much opposition to any amendment of the NPT from the NWS.
Thus, they are likely to prevent the amendment conference from
happening in the first place. Instead the NWS may offer some
measures leading to disarmament. These measures could be
"qualitative" - such as adopting a no-first use clause, dealerting,
sequestration, and so on. If the NWS were to rapidly adopt these
measures, which require little time, then the NNWS could allow them
more time before renewing their call for an amendment conference.
Even if, as was the case with the 1995 extension conference, the
NWS do succeed in blocking the amendment, the Amendment Conference
can be reconvened. This is in contrast to the idea of a once and
for all mass withdrawal from the NPT.
If and when such an NPT amendment conference is held, the NWS
would have to attend and, in the full view of international public
opinion, demonstrate that they were fulfilling their commitments
under Article VI of the NPT and delivering progress towards the
elimination of nuclear weapons. If the NWS are seen to refuse, or
even to be uncooperative, this could be taken as a straight forward
violation of the NPT, with the NWS as the law-breakers. If even the
depository governments of the treaty show that they are unwilling
to live by its dictates, the NPT will cease to have any moral
standing. Having destroyed the legitimacy of the NPT the NWS would
have to accept responsibility if NNWS threaten to, or do, withdraw
from the treaty. The choice to bring down the non-proliferation
regime would have been made by the NWS.
Taking the First Step
The initial impetus and support needed for the proposed
amendment process is unlikely to emerge spontaneously. Creating the
conditions would require a major campaign by the international
peace movement and States committed to the abolition of nuclear
weapons. There are signs that the forces that could be part of such
a campaign are stirring. For example, there is the New Agenda
Coalition, comprising Brazil, Egypt, Ireland, Mexico, New Zealand,
South Africa, and Sweden, as well as the Middle Powers Initiative,
created by a number of peace movement groups, including
International Physicians for the Prevention of Nuclear War,
International Peace Bureau, Nuclear Age Peace Foundation, Lawyers
Committee on Nuclear Policy, State of the World Forum, which seeks
to "urge the leaders of several key middle-power States to press
the nuclear-weapon States to negotiate the elimination of nuclear
weapons." (23) The NPT amendment process outlined here could serve
as a mechanism for these initiatives to help further the process of
disarmament that they are committed to.
For instance, the New Agenda Coalition States could propose a
resolution at the UN General assembly calling on all States party
to the NPT to "consult among themselves as to the most appropriate
method to take advantage of Article VIII of the NPT for the
conversion of the NPT into a Nuclear Weapons Convention". This
could be followed by one that calls on signatories to the NPT to
"take practical steps leading to the convening of a conference at
the earliest possible date to consider amendment of the NPT that
would convert it into a nuclear weapons convention." (These are
similar to resolutions at the UNGA which attempted to use the
amendment clause of the Partial Test Ban Treaty to turn it into a
comprehensive one. (24)) As pointed out earlier, such resolutions
may be expected to garner substantial support. These resolutions
could be followed up by the submission of an NPT amendment
resolution at the next NPT Review Conference in 2000.
The argument outlined here offers a way out from the dynamic
that has emerged only too clearly since the end of the cold war.
Changing this dynamic will require changing the rules of the game
of disarmament. The overwhelming majority of the international
community can, if it chooses, exercise its right to dub those who
insist on maintaining nuclear weapons at all costs, as being
outside the pale.
Attached below are the two articles of the NPT that are referred
to in the paper. (25)
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.
1. Any Party to the Treaty may propose amendments to this
Treaty. The text of any proposed amendment shall be submitted to
the Depository Governments which shall circulate it to all Parties
to the Treaty. Thereupon, if requested to do so by one-third or
more of the Parties to the Treaty, the Depository Governments shall
convene a conference, to which they shall invite all the Parties to
the Treaty, to consider such an amendment.
2. Any amendment to this Treaty must be approved by a majority
of the votes of all the Parties to the Treaty, including the votes
of all nuclear-weapon States Party to the Treaty and all other
Parties which, on the date the amendment is circulated, are members
of the Board of Governors of the International Atomic Energy
Agency. The amendment shall enter into force for each Party that
deposits its instrument of ratification of the amendment upon the
deposit of such instruments of ratification by a majority of all
the Parties, including the instruments of ratification of all
nuclear-weapon States Party to the Treaty and all other Parties
which, on the date the amendment is circulated, are members of the
Board of Governors of the International Atomic Energy Agency.
Thereafter, it shall enter into force for any other Party upon the
deposit of its instrument of ratification of the amendment.
3. Five years after the entry into force of this Treaty, a
conference of Parties to the Treaty shall be held in Geneva,
Switzerland, in order to review the operation of this Treaty with a
view to assuring that the purposes of the Preamble and the
provisions of the Treaty are being realized. At intervals of five
years thereafter, a majority of the Parties to the Treaty may
obtain, by submitting a proposal to this effect to the Depository
Governments, the convening of further conferences with the same
objective of reviewing the operation of the Treaty.
Notes and References
- Rebecca Johnson, "The Arms Control Agenda at the UN: Breaking
New Ground or Breaking Old Habits?", Arms Control Today,
January/February 1997; .
- John Burroughs, The (Il)legality of Threat or Use of Nuclear
Weapons: A Guide to the Historic Opinion of the International Court
of Justice, International Association of Lawyers Against
Nuclear Arms, 1997.
- UN General Assembly Resolution, A/Res/51/45M.
- UN Department for Disarmament Affairs, Disarmament, New
York, 1997, pp. 134-137.
- The details of the vote in 1997, on UN General Assembly
Resolution, A/Res/52/38 O are from Program for Promoting
Non-Proliferation Newsbrief, Number 40, 4th Quarter, 1997, p.2
and on the 1998 UN General Assembly Resolution, A/RES/53/77 W, from
Program for Promoting Non-Proliferation Newsbrief, Number
44, p.2 (http://www.soton.ac.uk/~ppnn/nb44.pdf).
- Rebecca Johnson, "Multilateral Arms Control: Can the CD Break
the Impasse?", Arms Control Today, November/December 1997;
- Rebecca Johnson, Arms Control Today, January/February
- UN General Assembly Resolution, A/Res/52/38L.
- Agus Tarmidzi, Indonesian ambassador to the CD, Geneva,
February 20, 1997, CD/PV.756.
- John Holum, US statement to the CD, 21 January 1999, http://www.gn.apc.org/acronym/cdholum.htm
- Statement by Ambassador Munir Akram at the Special session of
the Conference on Disarmament on 2 June 1998; http://www3.itu.int/pakistan/Pak-India%20Nuc%20CD%20Special.htm
- Rebecca Johnson, "Frustration that the CD isn't working,"
Geneva Update No. 44, Disarmament
Diplomacy, No. 34, February 1999.
- Robert S. Norris and William M. Arkin, "US Nuclear Stockpile,
July 1997", Bulletin of the Atomic Scientists, July/August
1997, pp. 66-67.
- Robert S. Norris and William M. Arkin, "Global Nuclear
Stockpiles, 1945-1997", Bulletin of the Atomic Scientists,
November/December 1997, p. 67.
- The treaty text is from the US Arms Control and Disarmament
- R. Jeffrey Smith, "Clinton Directive Changes Strategy on
Nuclear Weapons", Washington Post, 7 December 1997.
- Walter Pincus, "Russia considering increased Nuclear
Dependence", Washington Post, 7 December 1997.
- Tariq Rauf, "PrepCom Opinion: Farewell to the NPT's
Strengthened Review Process?", Disarmament Diplomacy, No.
26, May 1998; http://www.gn.apc.org/acronym/26tariq.htm
- Frank Blackaby, "Time for a Peasants' Revolt", Bulletin of
the Atomic Scientists, November/December 1997, p.4.
- Rebecca Johnson, "Reviewing the NPT: the 1997 PrepCom", Disarmament Diplomacy, April
1997, p. 18.
- See, for example, "Text of the 1972 Biological Weapons
Convention", Appendix C, Preventing a Biological Arms Race,
ed. Susan Wright, The MIT Press, 1990, pp. 370-376.
- Zia Mian, "Disarmament's Auto Da Fe", SSRC Newsletter,
- Douglas Roche, "The Middle Powers Initiative," Peace
magazine, July/August 1998,
- UN General Assembly Resolution A/RES/44/106; reported in
Programme for Promoting Nuclear Non-Proliferation, Number 8,
- The text of the treaty is from the US Arms Control and
Disarmament Web Page. http://www.acda.gov/treaties/npt2.htm
Zia Mian and M. V. Ramana are Research Associates at the
Center for Energy and Environmental Studies, Princeton University,
The authors welcome responses to the paper. They can be contacted
by e-mail at firstname.lastname@example.org and email@example.com
© 1999 The Acronym Institute.
Return to top of page
Return to List of Contents
Return to Acronym Main Page