The 2000 NPT Review
Conference (RevCon)
14 April - 19 May 2000, New York
Presentations By
Non-Governmental
Organizations (NGOs)
The NPT and the law
Speaker: Mr. Peter Weiss, International Association of Lawyers Against
Nuclear Arms
Distinguished delegates, I thank you for this opportunity to speak to
you.
We lawyers like to
impress each other, not to mention ordinary folk, with references to
arcane Latin phrases. One of these is "de minimis non curat lex",
which may be freely translated as "the law does not concern itself
with trifles." Applied to the subject of this conference, the
opposite sometimes seems to be apposite: "De maximis non curat lex",
"the law has nothing to say about enormous, overwhelming
questions." Questions such as whether ordinarily decent human
beings have a right to base a strategy of national security on the most
gruesome, brutal weapons ever invented, whether one nation may put the
survival of half the world at risk in its own interest, or whether there
is any logic in being abstractly against weapons of mass destruction
while clinging ferociously to the most massively destructive weapons of
all.
But the law does have
relevance to such questions, and today more than ever. During the period
of the cold war, when the two superpowers threatened each other with
total extinction on a daily basis, one might - although one should not
have - forgiven their leaders for not wishing to be bothered with legal
considerations. But in today’s entirely different context, it is
difficult to understand why the rule of law should not be taken
seriously, particularly by those countries which never tire of
proclaiming it. Let me explain briefly why I say the rule of law is
being disregarded by the nuclear weapon states.
The be-all and end-all of
the law of treaties is expressed in another Latin phrase, "pacta
sunt servanda", promises must be kept. The Nonproliferation Treaty
was a solemn pact between the states possessing nuclear weapons and
those which did not. The former said to the latter: "In exchange
for your agreeing not to produce or acquire these weapons, we promise to
negotiate in good faith to get rid of the ones we have." Diplomats
and lawyers for the nuclear weapon states, as well as Russia and the
states members of NATO and those knocking on NATO’s door , do not deny
that this promise was made and remains in effect. But when you listen to
the military and national security strategists of these same countries,
a very different message emerges. It may be summarized as "reduce
nuclear weapons, yes; give them up altogether, never." It is as if
a slave owner were to say to an abolitionist: "Slavery is truly an
evil institution, therefore I promise to provide better food and housing
for my slaves."
The policy statements of
the militaries of the nuclear weapon states and their allies have one
common theme: "Nuclear weapons, while playing a less important role
than during the period of the cold war, are the backbone of our security
strategy and will remain so indefinitely, or for the foreseeable future,
or until the world has achieved a stable security system." When
this latter formulation is used, it is important to ask, "When will
that be?" A selective compendium of such statements has been made
available to delegates which illustrates the complete dichotomy between
the professed and the real attitude of the nuclear weapon states toward
nuclear disarmament. Let me just add one item to this list: Following
the welcome news of the Duma’s ratification of START II, and President
Putin’s desire to arrive at a further reduction to 1500 weapons for
each side in the context of START III, the Washington Post reported that
this number was unacceptable to Pentagon planners, who see 2000 to 2500
weapons as the minimum required for credible, global deterrence.
The legal basis for the
obligation to embark on negotiations aimed, not at the gradual
reduction, but at the complete elimination of nuclear weapons is crystal
clear. It has a variety of sources, including, most importantly, the
following:
-
Article VI of the NPT,
as discussed above;
-
The mandate of the
International Court of Justice to conduct and bring to a conclusion
negotiations for nuclear disarmament in all its aspects; and
-
The laws of war, or
humanitarian law, which predate the Court’s opinion and which
render it impossible for a nuclear weapon to be used in a legal
manner. Here it is important to note that the Court held that
humanitarian law is applicable to every use of nuclear weapons, even
in the exceptional circumstance of self-defense on which the
advocates of nuclear deterrence wrongly rely to justify their
disregard of the Court’s mandate.
No doubt the commencement
of negotiations toward START III will be mentioned as proof that the
obligation to achieve nuclear disarmament is being complied with, but
that would be a willful misreading of the core content of the
obligation. "Reduction" and "elimination" have
entirely different meanings, unless "reduction" is defined as
"reduction to zero." There is, I submit, not a shred of
evidence that such a definition is in the minds of the nuclear weapon
states (with the possible exception of China). Indeed, all the evidence
points squarely in the opposite direction. That, it seems to me, is the
central problem to be addressed by this conference. Civil society
fervently hopes that it will be.
One final comment: Both
Article VI of the NPT and the holding of the World Court emphasize that
negotiations leading to total nuclear disarmament are to be conducted in
good faith. In this respect the following comment by Hugo Grotius, the
father of modern international law, is worth considering:
Good faith should be
preserved …in order that the hope of peace may not be done away
with. … And this good faith the supreme rulers of men ought so much
the more earnestly than others to maintain as they violate it with
greater impunity; if good faith shall be done away with, they will be
like wild beasts, whose violence all men fear.
Peter Weiss
President, International Association of Lawyers Against Nuclear Arms
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