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.
John Burroughs
Lawyers’ Committee on Nuclear Policy
Andrea Pistocchi, UN Office
Physicians for Social Responsibility
International Physicians for the Prevention of Nuclear War
