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PENN Project on European Nuclear Non-proliferation NATO Nuclear Sharing
and the NPT – June 1997 PENN Research Note 97.3 Question 1. Nuclear sharing or proliferation? Question 2. Would such a step violate the NPT? Question 3. 1968: When were UN members informed? Question 4. What constitutes control? Question 5. Does the Treaty apply in time of war? Conclusion and Recommendations
This Research Note is about whether NATO nuclear sharing arrangements may be considered legitimate under articles I and II of the NPT or whether the interpretations given to the international community after the NPT signing ceremony on 1 July 1968 lead to the conclusion that the US and its NATO allies might have, in the words of Leonard Meeker, "negotiated a treaty under false pretenses". Proceedings at the 1995 NPT Review and Extension Conference and the 1997 NPT Preparatory Committee (PrepCom) meeting indicated an urgent need for research on this question. There is clearly no joint understanding among NPT parties that NATO nuclear sharing is legal under articles I and II of the Treaty. While some countries have expressed a need for far more detailed information on NATO nuclear sharing in order to formulate a position, others already take the stance that the US and its NATO allies are in violation of the Treaty. This Research Note provides basic information on:
This Research Note concludes that neither the US nor NATO ever lived up to then US Secretary of Defense, Robert McNamara’s promise "to make every effort to explain both our non-proliferation and our NATO nuclear sharing policies and to demonstrate beyond any reasonable doubt, that there is no conflict between them".2 In contrast, the Research Note concludes that many states parties were unaware of the NATO countries’ unilateral interpretation of the NPT and its meaning when they signed the Treaty. The authors were unable to obtain any evidence that the details of NATO nuclear sharing arrangements or the interpretation had been made available to all NPT parties prior to joining the Treaty. The US still deploys up to 200 nuclear weapons in Europe. A significant proportion of these weapons are intended for delivery on aircraft belonging to non-nuclear-weapon state (NNWS) NATO members in the event of war. NATO’s military strategy, last revised in June 1996, still requires widespread participation of NNWS NATO members in nuclear sharing during peacetime, crisis and war. It still requires several NNWS NATO members to be prepared to receive control over US nuclear warheads in times of war. Under NATO nuclear sharing arrangements, once the US President has given the order to go nuclear, control over US nuclear weapons would be transferred to allied pilots. NATO members argue that nuclear sharing is in compliance with Articles I & II of the NPT, on the basis of an interpretation that the NPT does not apply during war. By retaining the option of first use of nuclear weapons, the US interpretation allows the US to unilaterally decide when the time of "general war" has come and thus unilaterally withdraw from its NPT commitments without prior notice. As NATO enlarges new countries will be eligible to participate in NATO nuclear sharing, making the question of NPT compliance especially relevant, in spite of assurances that NATO does not intend to deploy nuclear weapons in the territory of new member states. This Research Note recommends: Immediate withdrawal of all US nuclear weapons from Europe and termination of nuclear sharing agreements remains the best way to resolve doubts over the legality of NATO nuclear sharing under the NPT. By doing so, all nuclear weapons would be finally removed to the territory of the country owning them. However, if NATO intends to continue the practice of nuclear sharing the onus is on NATO member states to:
NATO members, as a prerequisite for such a discussion should therefore publish and disseminate to all NPT parties:
This Research Note also recommends that NPT parties undertake intensive discussions at the 1998 NPT PrepCom to resolve the problem of NATO compliance with NPT articles I and II. The aim of such talks would be to reach agreement by consensus at the 2000 NPT Review Conference. Consideration should be given to a joint interpretation stating that the NPT is binding during war and peace and that no exceptions to this rule will be construed.
NATO's sixteen nations under US leadership have been firm supporters of the NPT. They worked hard to achieve indefinite extension of the NPT in 1995. They continue to emphasize the importance of treaty interpretations which allow no loop holes. NATO countries are committed to exposing possible treaty violations to international criticism, as well as to decisive counter-action. A treaty prohibiting nuclear proliferation is clearly perceived to be in their national interests. However, during the 1995 NPT Review and Extension Conference, serious concerns were raised by other states parties to the treaty as to whether NATO nuclear sharing arrangements are in compliance with the articles I and II of the Treaty. NATO members proposed, that the report of Main Committee I of the Conference should state that, "existing security arrangements are implemented in full compliance with articles I and II of the treaty", or that the "provisions of articles I and II are fully compatible with the commitment undertaken by State parties in existing security arrangements".3 Non-NATO countries were much more critical. Their proposed language for Main Committee I ranged from the Conference "taking note, that among State parties there are various interpretations of the implementation of certain aspects of articles I and II which need clarification", to "grave concern" about NATO nuclear sharing and the Conference being "convinced that such acts run counter to the spirit and letter of the Treaty".4 Seven out of eight draft proposals for language highlighted the fact that there is no joint interpretation of articles I and II. They either called for clarification and additional information or more generally reminded all states parties to ensure, that they live up to their commitments under articles I and II. Nuclear sharing was discussed again during the 1997 Preparatory Committee (PrepCom) meeting. China, Russia and Belarus raised the subject of NATO enlargement. China and Russia suggested that states with nuclear weapons deployed outside their borders should withdraw all these weapons home. The South Africans were even more explicit, stating their concern, in both open and closed sessions of the PrepCom, "about the non-proliferation implications of the plans for the expansion of NATO and the proposals which have been made for a dialogue in Europe on the future role of nuclear deterrence in the context of the European Defence Policy. The planned expansion of NATO would entail an increase in the number of non-nuclear-weapon States which participate in nuclear training, planning decision-making and which have an element of nuclear deterrence in their defence policies."5 This kind of criticism is likely to intensify as NATO proceeds with the process of enlargement. NATO has repeatedly stated that it does not intend to station nuclear weapons on the territory of new members and has now clarified in the NATO-Russia Founding Act that it will not construct new nuclear storage facilities in these countries. However new members will be eligible to join the NATO Nuclear Planning Group and its subordinate bodies, participate in nuclear consultation during crisis and exercises, and enter into nuclear cooperation agreements with the US. This Research Note examines the US and NATO
interpretation of NPT articles I and II and attempts to ask the necessary
questions about compatibility of NATO nuclear sharing and articles I and
II. Question 1: Nuclear sharing or proliferation? During the late 1950s and 1960s, there were intense discussions within NATO on what form of nuclear sharing to establish within the Alliance. Some European allies - Germany among them - pressed the US to allow them some kind of participation in nuclear planning, decision-making and command and control. However, the declared nuclear-weapon states (NWS) wanted to limit access to nuclear weapons by other parties. As a compromise, the system of "nuclear sharing" was established in NATO in the mid-1960s, which in its basic functions has remained unchanged ever since. The Nuclear Planning Group was formed which allowed European NATO allies participation in nuclear decision making as well as discussions about the Alliance’s nuclear policy and doctrine. Six NNWS members of NATO have bilateral nuclear cooperation agreements, Programs of Cooperation, with the US. All NATO members are parties to a 1964 NATO nuclear cooperation agreement. (See Annex 1.) European NATO-allies were allowed to politically veto the use of those nuclear weapons that were under NATO command. However, they could not order their use. The US National Command Authority (NCA) retains the launch codes for use of US weapons in Europe. Thus the US NCA has "positive control" over all these weapons: they cannot be armed without the US President giving the order. During the Cold War large numbers of different types of nuclear weapons were deployed in NATO Europe. In recent years, the number of US tactical nuclear weapons deployed in Europe has been substantially reduced. Currently only air-launched B61 bombs remain. It is likely that less than 200 of these weapons are now deployed: in the United Kingdom and in the six NNWS members of NATO which are parties to bilateral Programs of Cooperation with the US: Germany, Belgium, The Netherlands, Italy, Greece and Turkey. Under NATO nuclear sharing agreements, a significant proportion of these weapons is deployed for use on aircraft belonging to non-nuclear NATO countries, in the event of war. The six NNWS members of NATO mentioned above each currently maintain one Air Force unit equipped with dual capable aircraft fully trained and ready for the conduct of NATO nuclear missions. The following units are all earmarked for nuclear missions: German Tornado fighter-bombers at Buechel Air Base, Dutch F-16 aircraft at Volkel Air Base, Belgian F-16 Falcons at Kleine Brogel, Greek F-16s at Araxos, Turkish F-16s at Incirlik and Italian Tornados at Ghedi Torre.6 In peacetime, all US weapons remain under custody of US forces. However in 1969 the then Chairman of the Joint Chiefs of Staff, General Earle G. Wheeler told the Senate Armed Services Committee that: "All [nuclear] weapons in NATO with the exception, of course those possessed by the British, are under our custody and control at all times, and will remain so until there is a war, at which time the President can authorize the release of these weapons to our allies."7 In other words, once the President has
given the order to go nuclear, control over some US nuclear weapons is
handed over to NATO Allies. After the order has been given and the
aircraft has taken off with the weapon armed and on board, the weapon is
no longer under national US command and control. Instead, the allied pilot
now has full control over the weapon (or weapons) and has sole
responsibility for delivering the weapon to its (predetermined) target.
This is clearly a form of nuclear proliferation, if under very special
circumstances. Question 2: Would such a step violate the NPT? The "release" of US nuclear weapons to NATO allies would appear to be in direct breach of articles I and II of the NPT. However, at both the 1995 NPT Conference and the 1997 NPT PrepCom, NATO members continued to argue that NATO nuclear sharing arrangements are fully compatible with the Treaty. In fact the argument about whether NATO nuclear arrangements are compatible with the NPT dates back to the negotiation of the Treaty itself. The question of NATO nuclear sharing arrangements was at the center of US-Soviet negotiations on articles I and II of the NPT. Originally, the US State Department discussed the creation of a Multilateral Force (MLF) which would have involved some type of "joint ownership, manning, and command of a NATO strategic force".8 Meanwhile the Soviets strongly opposed both the MLF and the existing NATO nuclear arrangements. In May 1966, President Lyndon Johnson is reported to have instructed the State Department and the Department of Defense "to seek new forms for nuclear coordination within NATO that might be less objectionable to the Soviets than an MLF".9 The compromise language for Articles I and II which was eventually agreed was intended, by the US, to close the option of an MLF, but not to preclude the existing NATO sharing arrangements, including the newly formed Nuclear Planning Group. During the negotiations the US informed the Soviet Union that a Treaty interpretation indicating that allied consultation and "two-key" arrangements would not be barred, was essential for its allies. The Soviets were told that an interpretation to this effect would be made public during Senate hearings on the Treaty. They were told that if they publicly disagreed with this interpretation the US would have to reconsider its position of support for the treaty.10
The key document on the US interpretation of Articles I and II is entitled Questions on the Draft Non-Proliferation Treaty asked by US Allies together with Answers given by the United States. (See Annex 2.) The Questions and Answers were enclosed with a letter from Secretary of State, Dean Rusk, to President Johnson. The letter and the Questions and Answers were then transmitted to the Senate on 9 July 1968, along with other relevant documents, for consideration during the Senate ratification hearings on the NPT. This interpretation was thereby made public on 9 July 1968, eight days after the NPT signing ceremony at which the first 56 nations had signed the Treaty. The Questions and Answers were designed to give an interpretation of the NPT which allowed NATO nuclear sharing, based on the idea that the treaty "deals only with what is prohibited, not with what is permitted". They indicate four areas that the Treaty "does not deal with" and therefore, in the US view, does not prohibit. The answer to question one specifies that the Treaty prohibits the transfer of nuclear bombs, warheads or nuclear explosive devices, but "does not deal with, and therefore does not prohibit, transfer of nuclear delivery vehicles or delivery systems or control over them". This interpretation was intended to allow continued cooperation on development of delivery systems under the Programs of Cooperation and continued allied procurement of missiles, artillery systems and aircraft capable of delivering US nuclear weapons. The answer to question two states that the NPT "does not deal with allied consultations and planning on nuclear defense so long as no transfer of nuclear weapons or control over them results". This answer was designed to allow information exchange within NATO’s system of nuclear sharing, including NNWS participation in Programs of Cooperation, drafting target plans, obtaining information about how different weapons would be used against different targets and.the work of the Nuclear Planning Group. The third answer states that the NPT "does not deal with arrangements for deployment of nuclear weapons within allied territory as these do not involve any transfer of nuclear weapons or control over them unless and until a decision were made to go to war, at which time the treaty would no longer be controlling". This answer, that the NPT "would no longer be controlling" once a decision has been made "to go to war", is crucial to the US interpretation. The US definition of "control", as meaning that the weapons cannot be launched without the decision of the US President, is also critical. By definition, the US President would never take the decision to launch US nuclear weapons at any time short of war. Thus "control" over US nuclear weapons would only be transferred to NATO allies in the event of war, when the US considered that the Treaty was no longer binding. However, the implication of this interpretation is that the use of US nuclear weapons by allied forces would be illegal under the NPT, if the Treaty was binding in wartime. Three issues arise from the Questions
and Answers. The first is the question of which states were informed
of them, how and when they were informed, and whether they can be
considered to have consented to these interpretations. The second results
from weaknesses in the US definition of "control". The third
concerns the question of when the Treaty is considered to be
"controlling". Question 3. 1968: When were UN members informed? In February 1969, six months after the NPT signing ceremony, then deputy director of the US Arms Control and Disarmament Agency (ACDA), Adrian Fisher, told the Senate Foreign Relations Committee that the Questions and Answers "were made available to key members of the ENDC [Eighteen Nation Disarmament Committee]. They have now been made available to all members of the UN, and an indication that this is the way the United States proposed to proceed. There has been no indication of objections."12 The Questions and Answers had been shown to NATO allies in early April 1967,13 prior to tabling of the draft treaty text at the Geneva based Eighteen Nation Disarmament Committee (the multilateral forum conducting negotiations on the treaty). Despite intensive efforts, the authors of this Research Note were unable to obtain evidence which demonstrated that the contents of the Questions and Answers were distributed to all UN members prior to 1 July 1968, when the first 56 nations signed the NPT or that the Questions and Answers were made publicly available prior to 9 July 1968. Indeed Fisher implies that the US was somewhat selective in revealing the details of its interpretations. He told the Senate Foreign Relations Committee that the Questions and Answers document was "seen by the Soviets and key members of the ENDC before it was made public and there was no objection. In view of the fact it is public, and has been referred to on a public hearing, I assume all countries in the world are on notice of our intention."14 As a consequence, states which were neither NATO members nor "key ENDC-members", may have had no formal notification of the details of the US interpretation prior to the publication of the US Senate ratification hearings - considerably after many states had signed the Treaty. It is likely, for example, that Ireland ratified the NPT on 1 July 1968, without prior information on this interpretation. It is also significant that the US did not deposit its interpretation when it signed the NPT. It is common practice for states to deposit their reservations and interpretations about a treaty upon joining. Eighteen countries did so prior to or upon signing the NPT. The US, however, did not deposit any declaration. Thus the US avoided making additional countries aware of its interpretation. Finally there is the question of how non-NATO members could give informed consent to nuclear sharing arrangements, the details of which remain classified to this day. Fisher explained that the Soviets had not "indicated acquiescence or agreement because they can’t be asked to agree about certain arrangements that we keep secret".15 Back in 1966, then US Secretary of Defense, Robert McNamara had stated that the US was willing, "to make every effort to explain both our nonproliferation and our NATO nuclear sharing policies and to demonstrate beyond any reasonable doubt, that there is no conflict between them".16 However neither the US nor NATO appears ever to have lived up to this commitment. It would therefore have been difficult for non-NATO members to comment on the validity of US interpretations concerning nuclear sharing. At the most, the Questions and Answers were shown to a limited number of nations prior to the opening of the Treaty for signature. They were published later in the volumes on US Senate hearings on ratification of the NPT. Many countries may not have been made aware of these interpretations prior to signing and/or ratifying the Treaty. They would, therefore, have been unable either to consent or object. It is therefore high time for the US to
state publicly which governments were informed and on what dates, about
the contents of the Questions and Answers, so that the public can
make its own judgment about the timeliness and quality of US information
provided before 1 July 1968 and thus the validity of these
interpretations. The question is whether signatories would have objected
had they been aware of the full implications of the US interpretation. Question 4: What constitutes control? All US administrations have consistently argued that NATO shared nuclear command and control is legal because the US guarantees to maintain positive control over all its nuclear weapons at all times. The UNGA, in 1965, had called for a non-proliferation treaty which was "void of loop-holes". However, by interpreting the NPT as dealing "only with what is prohibited" and not with what is allowed, the US introduced a loophole for nuclear sharing. It is this interpretation, outlined in numbers one, two and three of the Questions and Answers, allowing NNWS NATO allies during peacetime to make every preparation for the employment of nuclear weapons during war, almost as if the Treaty did not exist, that other countries are questioning. It is not clear from the Treaty text that there should be such a narrow definition of "control" or that everything that is not explicitly forbidden should be allowed. Even the US definition of "control" poses other questions with regard to the NPT: What precautions has NATO taken to avoid a national pilot (or pilots) leaving NATO air traffic control after take off to execute a mission different from his orders, such as a mission ordered by national rather than NATO authorities? What precautions has NATO taken to ensure all pilots return to their home base if a decision is taken to break-off nuclear operations? To further complicate the situation: To
whom would the control of nuclear weapons be transferred when the decision
is taken, that NATO would go nuclear? Earlier discussions have focused on
the question of whether loading a fully armed nuclear bomb onto an
aircraft piloted by a citizen of a NNWS, would constitute a transfer of
control over the nuclear weapon to that NNWS. This question is legitimate.
However it is not the only question that needs to be answered. In wartime
NATO’s national air force units would be assigned to the Alliance, a
multinational entity. The US interpretation itself states that "the
treaty would bar transfer of nuclear weapons (including ownership) or
control over them to any recipient, including a multilateral entity".17
Yet, no discussion has been taken place whether a transfer of nuclear
weapons to a multinational entity would be legal under the NPT in wartime. Question 5: Does the Treaty apply in time of war? The first detailed US interpretation to be made public, the Questions and Answers, indicates that the Treaty would not be binding once a decision had been made to "go to war". Internal US interpretations at the time and statements by US officials indicate that this was taken to mean "general war". The US government was probably aware that NATO arrangements were in conflict with treaty provisions, so it had created a fallback position. During the NPT negotiations, the US pushed strongly to include wording which - in its interpretation would make the Treaty invalid in times of (general) war. In 1966 Adrian Fisher explained how the US should proceed with respect to the (general) war problem:
As a result of the US position, the preamble of the NPT now states that the general purpose of the Treaty is "to avert such a war". It does not, however, state that the Treaty is no longer controlling under conditions of war. The US interpretation was expressed in the Questions and Answers in very general terms. On 11 July 1968 Dean Rusk explained the US position further, stating: "I think... that this is simply a recognition of what today is almost an element of nature, and that is that, in a condition of general war involving the nuclear powers, treaty structures of this kind that were formerly interposed between the parties would be terminated or suspended."19 Nonetheless the US administration did not provide a clear-cut definition of "general war". Instead, Rusk simply gave an example of a conflict that would not relieve the signatories of compliance:
The US is the only country which has explicitly stated that once a general war has begun, it would no longer feel bound by the NPT. It has thus created a loophole by which it could withdraw from the Treaty without the three month notice period required by NPT article X. In addition, the US approach implicitly creates a loophole for NNWS members of NATO to withdraw from their treaty obligations and receive US nuclear weapons in the event of war. This US interpretation goes significantly beyond the normal right of states to be no longer bound by a treaty if that treaty has already been broken by another party. The US declares itself to be free from all NPT obligations in the event of any state party using nuclear weapons, irrespective of whether a transfer of nuclear weapons to an NNWS has occurred. Furthermore this interpretation allows the US to create the very conditions under which it would no longer feel bound by the NPT. It has been a long standing US and NATO policy to retain the option of using nuclear weapons first. The first use of nuclear weapons by the US and NATO during a conflict would not occur "unless and until a decision were made to go to war". The US view is that "in such circumstances the treaty would not apply, and a nuclear power would be free to transfer nuclear weapons to an ally for use in the conflict".21 While one could argue, that during the Cold
War there was an idea about what constituted a general war, no such
definition exists after the end of the East-West confrontation. Would, for
example, a regional conflict involving weapons of mass destruction
constitute a case in which the NPT is no longer controlling? Such
questions are important because the question of using nuclear weapons in
such conflicts, possibly against NNWS, is highly controversial in the US
strategic community. Conclusion and Recommendations Since the end of the Cold War nuclear sharing arrangements have lost their purpose. These arrangements were designed to ease concerns of European allies that the US would use nuclear weapons in Europe without consulting them. Now that the risk of nuclear conflict in Europe has gone, the arrangements are no longer relevant. Immediate withdrawal of all US nuclear weapons from Europe and termination of nuclear sharing agreements remain the best way to resolve doubts over the legality of NATO nuclear sharing under the NPT. By doing so, all nuclear weapons would be finally removed to the territory of the country owning them. However, if NATO intends to continue the practice of nuclear sharing the onus is on NATO member states to:
NATO members, as a prerequisite for such a discussion should therefore publish and disseminate to all NPT parties:
Recommendations to the 2000 NPT Review Conference The end of the Cold War also raises the question of whether a US interpretation which rests on a Cold War interpretation of "general war" is an appropriate basis for the Treaty regime in the future. The most effective action which NPT members can take to close the loop hole on NATO nuclear sharing is to agree on a joint interpretation that the NPT is binding in times of war and that no exceptions to this rule can be construed. Such an interpretation could be agreed by the parties to the Treaty at the 2000 NPT Review Conference. A clear interpretation, accepted by all parties would clearly strengthen the NPT since not only NATO members, but other states as well, could argue that they are not bound by the Treaty once a war breaks out. NPT members should prepare to initiate this process at the 1998 NPT PrepCom with intensified discussions on the question of compliance of NATO nuclear sharing with the NPT. NPT members can enhance this debate by checking their own archives for details of how and when they were informed of US and NATO intentions for interpreting the Treaty. Only when the evidence is provided can a judgment be made as to whether the current US and NATO interpretation of the NPT is valid and whether it is still relevant after the Cold War. As the debate on NATO enlargement continues the vexed question of NATO nuclear weapons in Europe will move towards centre stage. Whatever the outcome of that question, there is a pressing need for further documentation concerning the question of NATO compliance with the NPT to be made public. Go to Annex 1 and Endnotes |
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