2. Background
NPT: Nuclear disarmament versus non-proliferation
Disagreement between the five nuclear weapon states parties to the NPT and many non-nuclear weapon states over the commitment by the nuclear weapon states to the nuclear disarmament pillar11 of the treaty has long plagued NPT review cycles, and indeed helped precipitate the TPNW. This chronic divide in the NPT on the emphasis afforded to non-proliferation over nuclear disarmament will be placed in particularly stark relief during the upcoming review. This is because March 2020 marked 50 years since the NPT entered into force and 25 years since its indefinite extension, milestones that are not inconsequential for a treaty that is an essential bulwark against the spread of nuclear weapons and is thus fundamental to global security. Under the NPT, almost all of the international community of states legally bound themselves never to acquire nuclear weapons. They undertook that obligation in the expectation that existing nuclear arsenals would in due course be eliminated (hence the original intention that the treaty would have a duration of 25 years). In the half-century of the treaty’s existence, considerable reductions have indeed been made, but these have plateaued in recent years.12
NATO and nuclear weapons
Nuclear weapons form part of the arsenals of five states within the NPT, and three outside (India, Pakistan and North Korea). One non-NPT state – Israel – may also possess a nuclear weapon capability but does not officially confirm this.13 As already noted, all other countries renounced the acquisition of nuclear weapons by becoming party to the NPT. Many of this latter group, however, have formed military alliances with nuclear weapon states. One such alliance is NATO,14 three members of which possess nuclear weapons.15 NATO was established in 1949 under the North Atlantic (or Washington) Treaty. It functions as a transatlantic security and defence community, consisting of 30 European and North American countries that have committed themselves to advancing their individual and collective security.
As a legal matter, NATO Allies are bound by the UN Charter, since all NATO members also belong to the UN. Indeed, Article 7 of the North Atlantic Treaty stipulates that the UN Security Council retains ‘primary responsibility’ in matters of international peace and security, and that the North Atlantic Treaty does not affect its member states’ existing rights and obligations under the UN Charter.16 Neither the UN Charter nor the North Atlantic Treaty makes specific reference to nuclear weapons.
The members of NATO are also governed by non-legally binding but politically influential policy documents such as the 2010 NATO Strategic Concept.17 Under this concept, NATO aims to ‘create the conditions for a world without nuclear weapons’. This objective is linked to NATO’s commitment to seek ‘a safer world’, and to the goals of the NPT.18 Notably in this respect, NATO states that there has been a more than 90 per cent reduction in the number of nuclear weapons committed to NATO defence since the height of the Cold War (i.e. since the early 1980s).19 It is also clear that NATO allies view the NPT as a ‘cornerstone’ of global nuclear non-proliferation efforts, and an essential basis for the pursuit of nuclear disarmament.20
NATO states that there has been a more than 90 per cent reduction in the number of nuclear weapons committed to NATO defence since the height of the Cold War.
Nonetheless, the 2010 Strategic Concept states that NATO is committed to remaining ‘a nuclear alliance’21 for as long as nuclear weapons exist, but that it will do so at the ‘lowest possible level’.22 The Strategic Concept notes that the ‘circumstances in which any use of nuclear weapons might have to be contemplated are extremely remote’. It also takes the view that ‘an appropriate mix of nuclear and conventional capabilities’ should remain the basis of NATO’s approach to deterrence.23 NATO sees nuclear weapons, however, as ‘the supreme guarantee of the security of the Allies’.24
Although just three of NATO’s members possess nuclear weapons, the Alliance seeks to ensure the ‘broadest possible participation of Allies in collective defence planning on nuclear roles, in peacetime basing of nuclear forces, and in command, control and consultation arrangements’.25 In this sense, the 27 NATO member states that have renounced the option to acquire nuclear weapons under the NPT actively participate in consultations and exercises involving nuclear weapons, and otherwise prepare for and facilitate the potential use of nuclear arms by the Alliance.26 Moreover, all members of NATO, with one exception, attend meetings of the Nuclear Planning Group (NPG), where members formulate the Alliance’s policy on nuclear posture, irrespective of whether they possess nuclear weapons.27 The exception is France, which has chosen to remain outside the NPG in pursuit of its own national nuclear strategy.
Notably, too, five NATO states (Belgium, Germany, Italy, the Netherlands and Turkey28) currently host forward-deployed nuclear weapons in Europe on behalf of the US (in some cases maintaining aircraft to ensure that US nuclear weapons stationed in Europe can be used by Allied forces if deemed necessary).29 While NATO neither confirms nor denies the number or exact location of these weapons, it has been estimated that the US deploys somewhere between 150 and 240 air-delivered nuclear weapons at six air force bases in the five host countries.30 Although sometimes called into question, the compatibility between these hosting arrangements and the NPT has been defended on the basis that these arrangements were well known at the time the treaty was negotiated.31 Because of space constraints, this aspect will not be addressed in this paper.
11 The NPT’s three pillars also include peaceful uses of nuclear technology and, for our current purposes, non-proliferation. In the aftermath of the launch by US President George W Bush of the Proliferation Security Initiative (PSI) in May 2003 during the Iraq War, a number of non-nuclear weapon states questioned the emphasis being placed on non-proliferation in NPT meetings at the expense of the nuclear disarmament pillar.
12 The maximum global inventory of nuclear weapons of various kinds reached almost 70,000 at the height of the Cold War in 1986. As of January 2019, the total global inventory of nuclear weapons was estimated at 13,865. See SIPRI (2019), SIPRI Yearbook 2019: Armaments, Disarmament and International Security, Oxford: Oxford University Press; and Fedchenko, V. (2016), ‘Is there hope for nuclear disarmament?’, SIPRI WritePeace blog, 26 September 2016, https://www.sipri.org/commentary/blog/2016/there-hope-nuclear-disarmament (accessed 17 Oct. 2019).
13 India, Israel and Pakistan have not joined the NPT, while North Korea withdrew from it in 2003. China, France, Russia, the UK and the US are the other five states possessing nuclear weapons; all are NPT parties.
14 North Atlantic Treaty Organization (NATO) (2019), ‘Member countries’, https://www.nato.int/cps/en/natohq/topics_52044.htm (accessed 11 Oct. 2019).
15 France, the UK and the US. These states were estimated by SIPRI to have approximately 300, 200 and 6,185 nuclear arms respectively as of January 2019. Of the three, only the UK and the US make any parts of their nuclear force available to NATO, and only the US specifically earmarks nuclear weapons to NATO. See SIPRI (2019), SIPRI Yearbook 2019.
16 Article 7, 1949 North Atlantic Treaty.
17 NATO (2010), Active Engagement, Modern Defence: Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, https://www.nato.int/nato_static_fl2014/assets/pdf/pdf_publications/20120214_strategic-concept-2010-eng.pdf (accessed 11 Oct. 2019); NATO (2018), ‘Strategic Concepts’, https://www.nato.int/cps/en/natohq/topics_56626.htm (accessed 1 Oct. 2019).
18 NATO (2010), Active Engagement, Modern Defence: Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, para. 26.
19 NATO (2019), ‘Arms control, disarmament and non-proliferation in NATO’, https://www.nato.int/cps/en/natohq/topics_48895.htm (accessed 11 Oct. 2019).
20 For example, see the Netherlands’ Statement to the United Nations General Assembly First Committee, 6 October 2017, https://undocs.org/
A/C.1/72/PV.6 (accessed 11 Oct. 2019).
21 According to some experts, NATO states’ individual nuclear policy evolved into an Alliance policy over time, and NATO ‘never described itself as a nuclear alliance prior to 2010’. See, Egeland K. (2019), ‘Spreading the Burden: How NATO Became a ‘Nuclear’ Alliance’, Diplomacy & Statecraft, 31(1), pp. 143–167, doi: 10.1080/09592296.2020.1721086 (accessed 31 Mar. 2020).
22 NATO (2010), Active Engagement Modern Defence: Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, para. 26.
23 Ibid., para. 14.
24 Ibid., para. 18.
25 Ibid., para. 19.
26 Eide, S.-I. L. (2014), A Ban on Nuclear Weapons: What’s In It for NATO?, International Law and Policy Institute, http://nwp.ilpi.org/wp-content/uploads/2015/03/PP05-14-NATO-and-a-BAN.pdf (accessed 11 Oct. 2019).
27 NATO (2019), ‘Nuclear Planning Group (NPG)’, http://www.nato.int/cps/en/SID-24A1E2F6-99731ECC/natolive/topics_50069.htm (accessed 11 Oct. 2019).
28 The US has withdrawn nuclear weapons once held in Greece and the UK, and from one base in Germany. See Panda, A. (2019), ‘Why Are U.S. Nuclear Bombs Still in Turkey?’, New Republic, 15 October 2019, https://newrepublic.com/article/155381/us-nuclear-bombs-still-turkey (accessed 28 Nov. 2019).
29 The 2018 US Nuclear Posture Review, under the Trump administration, asserts that modernizing dual-capable fighter bombers ‘will maintain the strength of NATO’s deterrence posture and maintain our ability to forward deploy nuclear weapons’. See US Department of Defense (2018), Nuclear Posture Review, https://media.defense.gov/2018/Feb/02/2001872886/-1/-1/1/2018-NUCLEAR-POSTURE-REVIEW-FINAL-REPORT.PDF (accessed 11 Oct. 2019).
30 See Joyner, D. (2017), ‘The Treaty on the Prohibition of Nuclear Weapons’, EJIL: Talk! Blog of the European Journal of International Law, 26 July 2017, https://www.ejiltalk.org/the-treaty-on-the-prohibition-of-nuclear-weapons/ (accessed 11 Oct. 2019).
31 See for example Kotch, J. B. (1967), ‘NATO Nuclear Arrangements in the Aftermath of MLF: Perspectives on a Continuing Dilemma’, Air University Review, 18(3), pp. 78–87, cited in Alberque, W. (2017), The NPT and the Origins of NATO’s Nuclear Sharing Arrangements, IFRI, https://www.ifri.org/sites/default/files/atoms/files/alberque_npt_origins_nato_nuclear_2017.pdf (accessed 17 Oct. 2019).