John Burroughs and Andrea Pistocchi*

At the outset of the nuclear age, what might be called a vertical model of a regime of non-possession of nuclear weapons was popular. The emphasis was on coercion and on international control of nuclear materials. The underlying framework was that of world government. Fifty years later, while retaining vertical elements, the model Nuclear Weapons Convention (NWC) places more emphasis on horizontal elements.

Horizontal elements include a process of development and entrenchment of a norm of non-possession within national societies and governments. This would go hand in hand with the cultivation of greater respect than now exists for the role of international law and institutions in building global security. Related to this, there is an assumption that states’ conduct typically (not always) is guided by good faith and commitment to international cooperation. There is also some reliance on voluntarism and incentives. Notably, states can choose to agree to an optional protocol to the model NWC prohibiting the possession of nuclear reactors. In so doing, they would be obligated to provide assistance to states moving away from dependence on nuclear energy. The idea is to promote decreased use of nuclear technology which provides a foundation for weapons programs.

The model NWC also contains elements of coercion and vertical control, by providing for sanctions for non-compliance to be imposed by the Conference of States Parties or, in serious and urgent cases, the UN General Assembly and Security Council. The Security Council would have the authority under the UN Charter to direct use of force against non-complying states in situations posing a threat to the peace. Given that the permanent members of the Security Council are now also the five NPT-declared nuclear weapon states, increasing the legitimacy of the Security Council through wider representation and/or a restricted veto would be a highly appropriate, perhaps necessary, complement to the creation and sustaining of a nuclear weapon free world. For the Security Council to be able to act effectively with respect to non-permanent members violating the NWC, it will need to be seen as a voice and instrument of the entire international community. This means that it must be more representative, and also that it be able, at least in principle, to act vis a vis the permanent members if necessary.

In its early phases, however, the NWC would likely also be based on two power-related factors. First, for most states, their compliance in part would be based on the expectation that the most powerful states, especially the former nuclear weapon states, simply would not allow them to acquire nuclear weapons. This indeed is already the situation under the NPT, and the dynamic would be boosted in a nuclear-weapon-free world because the most powerful states would have a much greater interest in preventing other states from acquiring nuclear weapons.

Second, for the most powerful states, their compliance would be based in good part, not on sanctions or use of force applicable to non-compliance or incentives for compliance provided by the NWC regime, but rather on their assessment that their security interests are better served by a world in which no state has nuclear weapons. Further, the option of renuclearization in response to another state’s renuclearization would remain in the background. Over the longer term, as the norm of non-possession becomes thoroughly entrenched and NWC and other international institutions strengthen, these power-related factors would recede in significance.

The preference embodied in the model NWC for a framework of states cooperating through international institutions rather than a framework of world government is found in a wide range of present-day international initiatives. Thus the Organization for the Prohibition of Chemical Weapons monitors states’ implementation of their obligation of non-possession under the Chemical Weapons Convention, but does not own or control dangerous chemicals. An outstanding example of sophisticated integration of national and international measures is the newly established International Criminal Court (ICC). Under the principle of complementarity, the ICC prosecutes alleged perpetrators of genocide, crimes against humanity, or war crimes only when a national legal system has proved unable or unwilling to do so.

Peaceful collective measures

In an effective compliance regime, peaceful collective measures can include "carrots" (incentives or rewards for participation and compliance) and "sticks" (disincentives or sanctions for non-compliance). Regarding incentives, as already mentioned an optional protocol to the model NWC promotes discontinuance of reliance on nuclear technology and assistance with development of non-nuclear energy sources. The model NWC can be improved, discussion at the Ottawa Roundtable indicated, by development of other kinds of incentives.

Regarding sanctions, it is often overlooked that simple condemnation, by the Conference of States Parties, the General Assembly, or the Security Council, can be powerful because it sets in motion negative political and economic consequence resulting naturally from the diminution of a state's reputation. In addition to condemnation, the model NWC provides that the Conference of States Parties can impose sanctions, and identifies suspension of assistance with non-military nuclear activities as one such measure. Other sanctions related directly to the NWC regime could include, for example, suspension of the right of participation in the Conference of States Parties or (where applicable) the Executive Council.

The Conference likely could also lawfully call for states to impose economic sanctions, e.g. commodity embargoes, or diplomatic sanctions, e.g. closure of embassies. Sanctions can also be called for by the General Assembly, or mandated by the Security Council. Sanctions can range from relatively limited measures, like restrictions on flights in and out of a country or arms embargoes, to far-reaching ones that may dramatically impact a country's economy and society, like embargoes on key commodities. Increasingly it is understood that sanctions can be targeted at a country’s leadership or elite, for instance by freezing or seizure of individuals’ foreign bank accounts, or restricting flights, a measure which mostly affects the elite.

National implementation and fair criminal prosecution

The model NWC requires States to adopt national legislation implementing the obligations of the Convention. This includes making legislative provision for the prosecution of individual violators of the Convention, and for non-nationals, extradition to the state of nationality. If crimes relating specifically to nuclear weapons are included in the ICC Statute, accused persons could also be surrendered to the ICC for prosecution. However, there are no such specific provisions in the ICC Statute at present, and if later included on the present ICC model, they would concern only use and attempted use of nuclear weapons, not their research, development, or possession.

It is worth considering whether a treaty regime can be constructed under which states are required to prosecute or extradite persons suspected of participating in the research, development, possession, threat or use of nuclear, chemical and biological weapons, and perhaps other weapons like landmines or space-based ground-strike weapons that inflict mass or indiscriminate destruction. Proposals have already been made for a biological weapons regime along these lines. Extradition could be to other states which have a basis for prosecution, or to the ICC or other international tribunal if such crimes were built into their statutes.

Societal verification and whistleblowers

An enormous amount of information, especially but not only in the United States, has found its way into the public realm regarding nuclear arsenals, due to the dedicated work of researchers, the willingness of some government officials and scientists to take risks, and governmental openness policies. In the United States whistleblowers have found some protection, including payment of damages and the opportunity to return to their jobs, when reporting on health, safety and environmental concerns relating to nuclear activities. This is in large part to the efforts of non-governmental watchdog groups. Nonetheless, it remains the case that disclosure of information regarding nuclear weapons is risky because it may be found to violate laws protecting secret or confidential information Those working in military sectors, however, are generally bound by secrecy laws and there are severe penalties provided for violations. In the United States, for example, nuclear weapon scientists are bound by these codes until their death.

The model NWC creates a different paradigm, shifting the balance between individuals and their governments. This is because the drafters judge that whistleblowing — reporting violations of the Convention’s obligations — at the heart of "societal verification" of compliance with disarmament requirements, and societal verification in turn is essential to the success of disarmament. The model NWC requires those with relevant information to report violations, and therefore also expressly provide legal protection for whistleblowers, guaranteed at both the national and international levels. It protects those who supply information to the Disarmament Agency from prosecution, and provides that it is an unlawful employment practice to discriminate against persons have supplied information concerning violations of the Convention or have otherwise opposed such violations. It also provides whistleblowers the status of refugees, so that other states parties would be required to provide them asylum. These are innovative intrusions of an international agency into a national legal system, but they are believed necessary due to the centrality of societal verification to ensuring compliance.

In implementing these or similar provisions in context of an unfolding process of nuclear disarmament, a balance must be struck between secrecy and transparency. The balance must allow the disclosure of information necessary for disarmament to appropriate officials without publicly revealing information that might assist terrorists or hostile states, such as the precise location of nuclear weapons or materials or design information. However, it also true that as disarmament proceeds, the need to handle sensitive information carefully would diminish; when the point of abolition is reached, the possession of warheads or unsafeguarded nuclear materials would be unlawful. How information regarding bomb design would be handled in the latter stages of disarmament remains to be worked out. One can argue that such information must remain secret; one can also argue that to the extent feasible, it should be destroyed (e.g., elaborate computer models), and therefore its illegitimate retention should be reported.

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