The Non-Proliferation Treaty Review
Conference:
Breakthrough or Bust in '05?
A BASIC/ORG project, Briefing 3, February
2005
 
Back to the main page on the
2005 NPT Review Conference.
Turning Security Assurances into a Legally Binding
Instrument
Background
The question of Security Assurances has been linked with the
Non- Proliferation Treaty (NPT) since it was negotiated in the
1960s. Non-Nuclear Weapon States (NNWS) needed to be assured by the
Nuclear Weapon States (NWS) of their security against nuclear
attack. These Negative Security Assurances (NSAs) would be
supported by Positive Security Assurance (PSAs), whereby the NWS
agreed to come to the aid of NNWS facing nuclear aggression or in
the aftermath of such aggression.
On the eve of the 1995 NPT Review Conference, France, Russia,
the United Kingdom and the United States issued 'harmonised'
Security Assurances, with the objective of creating a positive
environment for the Review Conference. The declarations re-affirmed
that the NWS would not use nuclear weapons against NNWS but
qualified them with exemptions that if NNWS, in alliance with
another NWS, attacked the territories, the armed forces or NWS
allies, then the NSAs were declared void.
These Security Assurances were reaffirmed by the unanimous
adoption of United Nations Security Council (UNSC) Resolution 984
on 11 April 1995, giving NNWS recourse to the UN Security Council
in the event of nuclear aggression or the threat of such
aggression.
http://daccessdds.un.org/doc/UNDOC/GEN/N95/106/06/PDF/N9510606.pdf?OpenElement
The 1995 NPT Review Conference noted the unanimous adoption of
UNSC 984 in the Final Document, 'Principles and Objectives for
Nuclear Non-Proliferation and Disarmament', and suggested that
further steps be considered which "could take the form of an
internationally legally binding instrument".
The Final Document of the 2000 NPT Review Conference "calls upon
the Preparatory Committee to make recommendations to the 2005
Review Conference on this issue". Under the 'Plan of Action' or '13
Practical steps towards global nuclear disarmament', the NWS
committed themselves to establish a diminished role for nuclear
weapons in their security policies.
Post 2000 Review Conference developments
2002 PrepCom
During the 2002 Preparatory Committee (PrepCom), concern was
widely expressed about the NWS' continued reliance on nuclear
weapons and the prospect of the development of a new generation of
nuclear warheads and delivery systems. Additionally, there were
calls for the Security Assurances to be made unconditional and
legally binding.
Never viewed as very reassuring, the NSAs have been eroded by
the threat from some NWS to use 'sub-strategic' nuclear weapons to
deter potential aggression against deployed forces overseas or
worldwide 'interests', the refusal of all NWS to declare a 'no
first use' policy and the growing tendency to conflate nuclear,
biological and chemical weapons under the generic and misleading
term 'weapons of mass destruction' (WMD).
More recently, a public and explicit emphasis by the United
States (and implied by other NWS) on using nuclear weapons
pre-emptively in response to the use of biological or chemical
weapons by NNWS has further eroded the NSAs. These strategies of
the NWS not only lower the threshold for the use of nuclear weapons
to new and dangerous levels, but are also a clear breach of the
NSAs to NNWS.
2003 PrepCom
On behalf of the New Agenda Coalition (NAC), New Zealand
submitted a working paper on Security Assurances to the 2003
PrepCom. The paper reviewed the history and significance of NSAs
and attached a draft Protocol or Agreement for debate and
consideration. The paper also quoted the unanimous decision from
the Advisory Opinion of the International Court of Justice,
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.
The paper acknowledged that the negotiation of any
internationally legally binding instrument on Negative and Positive
Security Assurances would need to take a range of factors into
account. It also states that:
The arguments that declarations made by the nuclear-weapon
States are sufficient or that these assurances should only be
granted in the context of nuclear-weapon-free zones are not valid.
The primary undertaking not to aspire to nuclear weapons has been
made under the NPT; it is therefore in the context of or as a part
of this Treaty that security assurances should be given.
http://www.reachingcriticalwill.org/legal/npt/2003statements/Working%20Papers/NACMay1.pdf
2004 PrepCom
During the 2004 PrepCom, Malaysia, on behalf of the Non-Aligned
Movement (NAM) stated that: "The Non-Aligned States Parties to the
NPT also believes that the Third Session of the Preparatory
Committee should also substantially focus on Security Assurances"
and referred back to the decisions of the Final Document of the
2000 Review Conference. The Malaysian delegation specifically
called for "the establishment of a subsidiary body on NSAs at the
2005 Review Conference for further work to be undertaken", as did
other NNWS in their statements.
China submitted a short working paper on security assurances to
the 2004 PrepCom. It called for an international convention on the
no-first-use of nuclear weapons and an international legal
instrument on the threat or use of nuclear weapons against NNWS to
be concluded as soon as possible. It also suggested that:
The Conference on Disarmament in Geneva should re-establish
an ad hoc committee on Negative Security Assurances and start
substantive work and negotiations without delay.
http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/china9.pdf
Future Prospects
Given the substantial and wide ranging support for making
progress on the issue of legally binding assurances to the NNWS, it
is a concern that is likely to gather significant support prior to
and during the 2005 Review Conference.
However, there is continuing resistance by some NWS that is
unlikely to be removed in the foreseeable future. This resistance
is based on the possibility of some NNWS being in non-compliance
with their NPT commitments. Additional reasons put forward by NWS
for not making the NSAs legally binding include potential scenarios
involving:
- the invasion of, or attack against, a NNWS that is allied to a
NWS; or
- if the territory or troops of a NWS were invaded or attacked by
a NNWS in alliance with a NWS.
The drafters of the Protocol or Agreement have taken these
reservations into consideration and accept that, in certain
circumstances, the NSAs would be qualified.
The 2005 Review Conference is again likely to be told by the NWS
that NSAs already exist and are given formal status under the NPT
through the establishment of Nuclear Weapons Free Zones (NWFZ). The
NWS are likely to further argue that if the NSAs became universal
and legally binding there would be no incentive for nations to join
the NWFZs. The UK government, for example, has stated that it
believes "that these commitments already give the NNWS the
assurances they seek". The NAC paper from 2003 clearly contests
this assertion.
Recommendations
We urge that:
1. All States Parties delegations review the statements and
working papers on NSAs since, and including, the 2000 Review
Conference.
2. All States Parties delegations consider the modifications in
nuclear strategy being adopted by some NWS and question their
standing viss- vis existing security assurances.
3. All NWS demonstrate in a clear and unequivocal way how they
have established a diminished role for nuclear weapons in their
security policies since 2000. This could be achieved by a formal
statement at the 2005 Review Conference in the first instance, and
thereafter via annual progress reports submitted to the United
Nations and made publicly available.
4. The Conference on Disarmament in Geneva re-establish an
ad-hoc committee on NSAs in advance of the Review Conference.
5. A subsidiary body on NSAs be established at the 2005 Review
Conference with the aim of developing new assurances that include
provisions that offer more concrete guarantees to NNWS concerning
their sovereignty and territorial integrity.
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