Treaty on the Non-Proliferation of Nuclear Weapons (NPT)

Security Assurances Against the Use or Threat of Use of Nuclear Weapons: Is Progress Possible at the NPT Prepcom?

Jean du Preez

Jean du Preez, Director for the International Organizations and Nonproliferation Program at the Center for Nonproliferation Studies, Monterey Institute for International Studies, is a former South African diplomat who participated in both the 1995 NPT Review and Extension Conference and the 2000 NPT Review Conference.


The 2003 Preparatory Committee (PrepCom) meeting for the 2005 Review Conference of the states parties to the nuclear Non-Proliferation Treaty (NPT) is meeting at the end of April amid renewed fears over the use of nuclear weapons. These fears were in part triggered by recent statements made by senior US and UK government officials over the continued usefulness of nuclear weapons against states or non-state actors that present a chemical and biological weapons threat. Regarding the United States, the leaking of the Bush administration's Nuclear Posture Review in January 2002 and the release of its new National Defense Strategy that provide for pre-emptive strikes, including with nuclear weapons, further heightened this fear. In addition, many NPT parties remain concerned over the lack of progress toward nuclear disarmament and the "backtracking" by some of the nuclear weapons states (NWS) on their existing commitments not to use or threaten to use nuclear weapons against non-nuclear weapons states parties (NNWS) to the Treaty. Concerns exist that the lack of commitment by some NPT parties -- both NWS and NNWS -- to their Treaty obligations and related commitments undermines the security that the Treaty provides to states that chose not to pursue the nuclear weapons option, to join the Treaty as NNWS, and to fully comply with its obligations.

In addition to their Treaty obligations to eliminate nuclear weapons, the five NWS have all made unilateral pledges, reaffirmed by the Security Council in 1995 and embedded in the protocols to the four existing nuclear-weapons-free zones, not to use or threaten to use nuclear weapons against NNWS. These so-called "negative security assurances" have played a key role since the inception of the NPT in convincing states not to pursue a nuclear weapons option, but rather to join the Treaty as NNWS. The reaffirmation of these assurances by the Security Council, shortly before the 1995 NPT Review and Extension Conference, formed a key basis for the important decision by all states parties to extend the Treaty indefinitely. Although both the 1995 and 2000 Review Conferences underscored the importance of securing NNWS against the use or threat of use of nuclear weapons, very little progress has been made to effectively assure NNWS in this regard. Many states believe that the only effective way to ensure such assurance is through legally binding commitments under the Treaty.

The 2000 Review Conference agreed that legally binding security assurances by the five NWS to the NNWS parties would strengthen the regime and called on the PrepCom to make recommendations to the 2005 Review Conference in this regard. At the 2002 PrepCom meeting many NPT parties stressed that efforts to conclude a universal, unconditional, and legally binding instrument on security assurances to NNWS should be pursued as a matter of priority. Also, views were expressed that such an instrument could take the form of a protocol to the Treaty. Pending the outcome of negotiations on security assurances, the NWS were called upon to honor their unilateral commitments as reaffirmed by the Security Council. The Non-Aligned Movement (NAM), at its recent Heads of State Summit meeting in Kuala Lumpur also stressed that legally binding security assurances would strengthen the regime and in this context emphasized the need for the PrepCom to allocate specific time for deliberations on security assurances in addition to time for nuclear disarmament and the 1995 resolution on the Middle East.

At this year's PrepCom, NPT states parties will for the first time be confronted with the challenge of how to deal with a state party (North Korea) that decided to leave the Treaty and possibly develop nuclear weapons. In this regard, it is encouraging that the United States and North Korea have agreed to bilateral discussions to resolve this crisis with the involvement and support of China, Japan, and the Republic of Korea. One of the critical issues for North Korea in these discussions will be its demand for a "non-aggression pact" with the United States, which is likely to include assurances against the threat of use of nuclear weapons by the United States. It is against this backdrop, that the NPT states parties need to consider how security assurances by the NWS against the use or threat of nuclear weapons would continue to be a critical incentive to NNWS parties to remain in full compliance with their Treaty obligations.

This paper provides background on the security assurances issue in the context of the pledges by the NWS, the role of the Security Council, the Conference on Disarmament (CD), and developments at the 1995 NPT Review and Extension Conference as well as the 2000 Review Conference. The paper attempts to identify possible ways in which the NPT state parties could approach this important issue at the upcoming PrepCom and at the 2005 Review Conference.

Historical Perspective: The Early Days of the NPT

Security assurances against the use or threat of use of nuclear weapons against NNWS have been raised since the NPT was first negotiated. States which were preparing to forego the nuclear weapons option for their own security wanted to ensure that they would not be left vulnerable to attack or threat of attack by NWS. Prior to the conclusion of the Treaty negotiation process in the mid-1960s, the NNWS, in particular the non-aligned states (those states not part of Cold War security alliances), sought means to protect themselves against the possible use or the threat of nuclear weapon use in return for their obligation not to develop nuclear weapons themselves. Although some NNWS sought security within strategic alliances such as NATO and the Warsaw Pact, others looked towards international arrangements to ensure their security. In that context, these states called for the elimination of nuclear weapons altogether, and as long as that had not been achieved, for international security assurances against the use or threat of nuclear weapons. Despite the strong push by NNWS during the Treaty's negotiations to include a guarantee against the use or threat of nuclear weapons, the Soviet Union, United Kingdom, and United States took the position that the matter should be pursued "in the context of action relating to the United Nations, outside the Treaty itself but in close conjunction with it." The desire by the NNWS not to be threatened by nuclear weapons did, however lead to the inclusion of a disarmament component in the Treaty. Article VI requires the NWS "to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."

Toward the end of the Treaty negotiations, the Security Council, acting on an initiative sponsored by the Soviet Union, United Kingdom, and the United States adopted Resolution 255 (1968)[1] recognizing that the Council "would have to act immediately to provide assistance, in accordance with their obligations under the United Nations Charter," to a state victim of an act of nuclear weapons aggression or object of a threat of such aggression. This commitment, defined as a positive security assurance, was in principle welcomed by the NNWS, but many non-aligned states indicated that such commitment fell short of their expectations and continued to express the need for a "negative" assurance -- that is, the need for a legally binding commitment by the NWS not to use nuclear weapons against countries not possessing such weapons.

Security Assurances and Nuclear-Weapons-Free Zone Treaties

Nuclear-weapons-free zones (NWFZs) have made and continue to make important contributions to strengthen the international nuclear nonproliferation regime, and to support global efforts aimed at achieving the total elimination of nuclear weapons. The role of NWFZs to strengthen the security of the states that belong to such zones was recognized when the Treaty was drafted and was embedded in Article VII of the Treaty.[2]

In addition to nuclear nonproliferation, disarmament, and the peaceful use of nuclear energy, negative security assurances constitute one of the main pillars of NWFZ treaties. NWFZs considerably strengthen and increase the obligations of NNWS to the NPT to refrain from acquiring nuclear weapons and to develop and use nuclear energy solely for peaceful purposes.[3] By signing and ratifying the relevant protocols to these treaties, NWS in turn undertake legally binding commitments to respect the status of these zones and not to use or threaten to use nuclear weapons against states parties to such treaties.

Negative security assurances have been granted by the NWS to all the states in the NWFZ of Latin America and the Caribbean[4] (Treaty of Tlatelolco) and the South Pacific[5] (Treaty of Rarotonga) in terms of the respective protocols to those treaties. Additional Protocol II to the Tlatelolco Treaty (signed and ratified by all five NWS) calls on the NWS (1) to respect the denuclearized status of the zone; (2) not to contribute to acts involving violations of obligations of the parties; and (3) not to use or threaten to use nuclear weapons against the contracting parties. Protocol II of the Treaty of Rarotonga calls on the NWS not to use or threaten to use nuclear explosive devices against any party to the Treaty or against each others' territories located within the zone. China signed this protocol in 1967, the Soviet Union in 1986, while the other three NWS signed it in 1996 (after France has ceased nuclear weapon testing in the zone). All five NWS have since ratified the Protocol. Protocols containing security assurances by the NWS are also part of the NWFZ in South East Asia[6] (Treaty of Bangkok) and in Africa[7] (Pelindaba Treaty). The protocol to the Bangkok Treaty, also calls on the NWS not to use or threaten to use nuclear weapons against any party to the treaty or to use nuclear weapons within the zone (which appears to include large areas of international waters), but none of the NWS has yet signed the Protocol. The NWS are mainly concerned over the possible passage of nuclear-armed naval vessels through international waters covered by the zone. Consultations between ASEAN[8] and the NWS are on going to resolve these concerns. Although all five NWS signed the security assurance protocol (Protocol I) to the Pelindaba Treaty, only China, France, and the United Kingdom have ratified it thereby committing themselves not to use or threaten to use a nuclear device against any party to the treaty or any territory within the zone for which a state party is internationally responsible. Russia has not ratified Protocol I in light of its apparent concerns over the status of the Indian Ocean island archipelago of Diego Garcia (controlled by the United Kingdom and believed to be used as a base for US nuclear weapons), while the United States argued that it maintains the right to use nuclear weapons in the case of the use of chemical weapons by an African state (supposedly referring to its concerns over states such as Libya). The draft Central Asian Nuclear-Weapon-Free Zone Treaty -- which will hopefully soon be adopted -- also requires the NWS to commit themselves not to use or threaten to use nuclear weapons against the five Central Asian parties to the treaty.

Commitments given by NWS in the context of NWFZs are, however, not sufficient in their application. The primary undertakings by NNWS not to aspire to nuclear weapons have been made under the NPT. The NPT is the only treaty adhered to by almost all states thereby establishing a global norm. Although NWFZ play an important role in strengthening the security of states that belong to such zones, these zones remain complementary instruments to the NPT. Pending the total elimination of nuclear weapons, only the NPT can provide security against the threat or use of nuclear weapons against NNWS parties to the Treaty.

Nuclear Weapon State Pledges and Security Council Resolutions

Just prior to the 1995 NPT Review and Extension Conference, the five NWS made, and in some instances updated, unilateral pledges, thereby establishing criteria for the granting of negative and positive security assurances to NNWS. However, four out of the five NWS qualified their pledges not to use or threaten to use nuclear weapons against NNWS. Only China gave an unconditional assurance not to be "the first to use nuclear weapons against non-nuclear weapon States or nuclear-weapons-free zones at any time or under any circumstances" against NNWS of the NPT or NNWS that have entered into any comparable internationally recognized commitment not to manufacture or acquire nuclear explosive devices.[9] France, the Russian Federation, the United Kingdom, and the United States issued similar statements, also reaffirming that they would not use nuclear weapons against NNWS parties to the NPT. But they qualified their assurances by excluding cases of invasion or any other attack on their respective countries, territories, armed forced or other troops, or against their allies or a state toward which they have security commitments, carried out or sustained by such state in alliance or association with a NWS.[10] Shortly before the 1995 Conference, these four NWS issued a similar joint declaration in the CD underlining the importance of their harmonized security assurances -- both positive and negative -- given to NNWS parties to the NPT.[11] A further qualification in some of the unilateral declarations by the NWS, most notably those of the United States and the United Kingdom, was that those assurances were not regarded as applicable if any beneficiary is in material breach of its NPT nonproliferation obligations.

These pledges by the five NWS were formally acknowledged by the Security Council in Resolution 984 (1995) adopted just prior to the 1995 NPT Review and Extension Conference, marking the first real politically binding commitment on both "positive" and "negative" security assurances. This resolution, considered by many States as an effort by the NWS to secure support for the indefinite extension of the Treaty, went further in some aspects than Security Council Resolution 255 (1968). For the first time, the Council recognized the legitimate interest of NNWS parties to the NPT in receiving assurances that the Council, and in particular its permanent members, would act immediately in the event that NNWS became victims of an act of nuclear weapons aggression. In doing so, the Council called on United Nations members to respond to a request by a victim of a nuclear weapons attack and to provide technical, medical, scientific, or humanitarian assistance. In furtherance of the bargain embedded in the NPT, the Council also urged all states to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control, thereby linking the need for security assurances with the provisions of Article VI of the Treaty.

Although these declarations were welcomed by a number of states, the majority of NNWS considered that in substance the updated security assurances had failed to address their main concerns. These concerns related to the fact that the NATO states and the Russian Federation kept the option of first use of nuclear weapons open as part of their doctrine of deterrence. Furthermore, some NNWS objected to the conditions attached, which exempted countries in nuclear alliances at the time of an attack, and which required agreement of the Security Council before action against a nuclear aggressor could be taken.

Shortly after the adoption of Security Council 984, the Group of 21 (NAM and associated members of the CD) issued a joint statement stating that the text of the NWS joint declaration did not take into account any of the formal objections by NNWS on the "restrictive, restrained, uncertain, conditional and discriminatory character of the guarantees already provided."[12] China also responded by restating its assurance not to be the first to use nuclear weapons, and called for the early conclusion of an international convention on no-first use as well as for security assurances.[13]

Advisory Opinion of the International Court of Justice

The International Court of Justice in 1996 rendered a historical Advisory Opinion on the "Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict" in response to General Assembly Resolution 49/75K.[14] It concluded unanimously that the threat or use of force by means of nuclear weapons, that was contrary to Article 2, paragraph 4 of the United Nations Charter and did not meet the requirements of Article 51, was unlawful and that such threat or use of nuclear weapons should be compatible with international law applicable in armed conflict.[15] According to the Court's Opinion, the threat or use of nuclear weapons would generally be contrary to the principles and rules of humanitarian law.[16] The Court could, however, not conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in extreme circumstance of self-defense, in which case the existence of a sovereign state would be at stake.[17] Following the Court's opinion, the General Assembly adopted several resolutions[18] with strong support by the majority of states. In doing so, the General Assembly recognized the need for a multilaterally negotiated and legally binding instrument to assure NNWS against the threat or use of nuclear weapons. The General Assembly also called upon all states to commence multilateral negotiations leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat, or use of nuclear weapons and providing for their elimination.

Security Assurances and the Conference on Disarmament

The possibility of addressing security assurances in the CD was raised following the 1995 Review and Extension Conference, in which several delegations agreed that the harmonized security assurances provided by NWS in Security Council Resolution 984 (1995) were useful but not sufficient. Many had hoped for a legally binding commitment. Some delegations believed that the 1995 NPT Conference opened the way for renewed negotiations in an ad hoc committee of the CD. By the end of its 1996 session, there was general agreement within the CD to address the issue in the framework of an ad hoc committee.

In both 1996 and 1997, the CD was unable to establish an ad hoc committee on security assurances. The members of the Group of 21 (G-21) non-aligned countries,[19] including two parties outside of the NPT (India and Pakistan) argued that for non-discriminatory negotiations on the issue, negative security assurances should be dealt with in the CD. South Africa, on the other hand, stated that the appropriate venue for discussion of security assurances was the strengthened review process of the NPT and that, therefore, it opposed the establishment of an ad hoc committee on the item in the CD. The South African argument was that security assurances would serve to encourage those states outside of the NPT, which were considering joining. In 1998, the CD re-established the ad hoc committee, discussing the nature and scope of negative security assurances, but failed to begin negotiations on a legally binding commitment.[20] At its 1999 session, the CD was unable to establish an ad hoc committee on the issue, partly due to the challenges presented as a result of the nuclear tests by India and Pakistan in 1998.

These developments demonstrated that while the CD has been considered a competent body for negotiations on various disarmament concerns, it is not the appropriate venue to address the issue of security assurances. Rather, this issue should be considered within the NPT context, thereby strengthening the Treaty and the nonproliferation regime.

Negative Security Assurances at NPT Review Conferences

Although the issue of negative security assurances has been a prominent feature at recent NPT Review Conferences, no concrete progress has been made to address the concerns by NNWS over the use or threat of use of nuclear weapons against them. At the 1990 Review Conference, several proposals resulted in language in the draft Final Document. Although the Final Document as a whole did not achieve agreement, it included consensus language in paragraph 7 under the heading "Security Assurances"[21] that recognized the need for effective arrangements that could be included in an international legally binding instrument to assure NNWS parties to the Treaty against the use or threat of use of nuclear weapons. It also recognized that such an instrument would strengthen the security of NNWS and offer additional incentives to NNWS to adhere to the Treaty. The same paragraph recognized that the participation of all NWS, including those that were not parties to the Treaty at the time, would contribute to ensuring its maximum effectiveness. This reference, of course, refers to China and France, which had since joined the Treaty as NWS, and not to nuclear weapons capable states that remain outside of the Treaty, i.e., India, Pakistan, and Israel. The Treaty defines a NWS as "one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967."[22]

As previously noted, the issue of security assurances featured prominently at the 1995 Review and Extension Conference; earlier in the year, the Security Council had acknowledged the unilateral assurances given by the five NPT NWS. While the NWS believed that this acknowledgement[23] by the Security Council would greatly facilitate the indefinite extension of the Treaty, the majority of NNWS considered that the unilateral declarations did not address their main concerns and that the Security Council resolution itself had some shortcomings (see earlier reference to the G-21 statement in the CD). Most of the discussions on the issue took place in main Committee I, where a working group on security assurances was established (chaired by Ambassador Richard Starr of Australia). The working group identified several approaches to resolve the difficulties associated with the issue. Although the CD was referred to as one means for negotiating security assurances, several non-aligned states supported a Nigerian proposal for a special conference to be held. However, since both India and Pakistan are members of the CD, some states argued that such a conference should be open only to NPT states parties. In addition, Egypt wanted more elaborate security assurances for NNWS parties to NWFZs and a collective commitment by the NWS to remedy the fundamental shortcomings of UNSC 984. Mexico also proposed that pending agreement on a protocol, more should be done in the UN Security Council and General Assembly. No agreement could be reached in the working group, and ultimately in Main Committee I. However, five distinct proposals emerged for further negotiations to improve on the assurances provided by the NWS in Security Council Resolution 984 (1995):

  • conclusion of a protocol to be attached to the Treaty, to be negotiated at a special conference or in the CD -- advocated with slight variations by Mexico, Nigeria and by 12 other non-aligned States;
  • conclusion of an international legal instrument on no-first use -- advocated by China;
  • a multilateral treaty on negative security assurances (based on the unilateral declarations by the NWS) -- advocated by Sweden;
  • a proposal for a collective commitment by the NWS to remedy the fundamental shortcomings of Security Council Resolution 984 -- proposed by Egypt; and
  • more elaborate security assurances to NNWS of the NWFZs -- also proposed by Egypt.

The issue was also addressed in Main Committee II in the context of NWFZs, where states parties called on those NWS who have not yet done so to sign the relevant protocols to the Bangkok Treaty and to adhere to the future African nuclear-weapon-free zone treaty.

While no agreement could be reached on the Final Document of the 1995 Review and Extension Conference -- mainly due to differences over the implementation by the NWS of their Article VI obligations -- the Conference did adopt, as part of the package leading to the agreement on the indefinite extension of the Treaty, language on negative security assurances in the "Principles and Objectives for Nuclear Non-Proliferation and Disarmament."[24] In doing so, it noted both the Security Council's Resolution 984 (1995) and the unilateral declarations by the NWS. The document also stated that further steps should be considered to assure NPT NNWS against the use or threat of use of nuclear weapons and that these steps could take the form of an international legally binding instrument. Paragraph 8 of the 1995 "Principles and Objectives for Nuclear Non-Proliferation and Disarmament" reads as follows: "Noting United Nations Security Council resolution 984(95), which was adopted unanimously on 11 April 1995, concerning both negative and positive security assurances, further steps should be considered to assure non-nuclear weapon States parties to the Treaty against the use or threat of use of nuclear weapons. Theses steps could take the form of an internationally legally binding instrument."

During the preparatory phase for the 2000 Review Conference, specific proposals were made by Myanmar, Nigeria, and Sudan in the form of a draft protocol aimed at providing comprehensive and unconditional negative security assurances to NNWS parties to the NPT. At the 1999 PrepCom, South Africa submitted a proposal and provided complete text for a draft protocol to the NPT on the prohibition of the use or threat of use of nuclear weapons against NNWS parties to the Treaty. This proposal emphasized that negotiations of legally binding security assurances within the context of the Treaty as opposed to other forums, such as the CD, would provide incentives to states outside the Treaty to join, and to states inside the Treaty to fully comply with their nonproliferation obligations. The draft protocol to the Treaty not only recognized the significance of Security Council Resolution 984 (1995) and the unilateral security assurance statements by the NWS, but it identified the states that would provide security assurances (NWS parties to the NPT); the states that would be the beneficiaries of security assurances (NNWS parties to the Treaty); any qualifications to the security assurances (based on the qualifications in the unilateral declarations by four of the five NWS); and provisions on the mandatory actions to be undertaken by the Security Council if a beneficiary of security assurances were the subject of a threat of use or use of nuclear weapons.[25]

The 2000 Review Conference consequently agreed that legally binding security assurances by the NWS to the NNWS to the Treaty would strengthen the regime and called on the PrepCom to make recommendations to the 2005 Review Conference to this effect. In this regard, paragraph 2 under "Article VII and security of non-nuclear weapons States" in the Final Document of the 2000 NPT Review Conference states that: "The Conference agrees that legally binding security assurances by the five nuclear-weapon States to the non-nuclear-weapon States to the Treaty on the Non-Proliferation of Nuclear weapons strengthen the nuclear non-proliferation regime. The Conference calls upon the Preparatory Committee to make recommendations to the 2005 Review Conference on this issue."[26]

Despite the 1995 and 2000 recommendations, no concrete discussions have occurred. Although many states parties at the 2002 PrepCom reaffirmed that the NNWS should be effectively assured by NWS against the use or threat of use of nuclear weapons, that a universal, unconditional, and legally binding instrument on security assurances to NNWS should be concluded as a matter of priority, and that this could take the form of an additional protocol to the Treaty, no concrete proposals were made to this effect. Concern was expressed at last year's PrepCom that recent developments might undermine commitments taken under respective Security Council resolutions.[27] The United States held the view that the issue of security assurances was linked with the fulfilment of NPT obligations.

The issue did, however, generate some debate from another angle. The alleged backtracking by the NWS on their existing unilateral nuclear security assurances given to NPT NNWS and to members of NWFZ treaties is of considerable concern. These concerns were triggered by statements by senior government officials in the United States and the United Kingdom, and in the case of the United States, the leaking of its Nuclear Posture Review and the release of its new National Defense Strategy. These statements and doctrines appear, in the opinion of many, to conflict with existing national negative security assurance commitments. Despite the statement last year by former US CD Ambassador Eric Javits that "there is no change in US negative security assurances towards NPT non-nuclear weapons states" and a similar statement by British government officials, many NPT NNWS interpreted the apparent new US and UK policies on the use of nuclear weapons as implying that there are circumstances in which existing commitments not to use or threaten to use nuclear weapons against NNWS might be inoperative.[28] These concerns would in all likelihood prompt new concrete initiatives at the second session of the PrepCom to address the issue of legally binding negative security assurance in the context of the NPT.

Conclusion

The forthcoming PrepCom and the third PrepCom next year will be faced with the issue of how to consider the issue of negative security assurances to NNWS against the use or threat of use of nuclear weapons with a view to making recommendations to the 2005 Review Conference. Negotiations of negative security assurances within the context of the NPT, as opposed to another forum, would provide a significant benefit to NPT parties and would serve as an incentive to those who remain outside the Treaty, or those who may consider leaving the regime.

Security assurances should only be granted to states that have forgone the nuclear weapons option and not to those who are still keeping their options open. They should therefore not be applicable to non-NPT parties who are aspiring to acquire or develop nuclear weapons in contravention of the Treaty. Security assurances granted to NNWS inside the Treaty will emphasize the basic principle that security is guaranteed by the nuclear nonproliferation regime and not by nuclear weapons. This would strengthen the regime and confirm the validity of the NPT and its indefinite extension. Legally binding security assurances linked to the NPT would build confidence among NPT state parties, addressing concerns over possible scenarios in which some NWS may consider using nuclear weapons. It would also provide incentives to states outside the NPT. As Cuba recently joined the Treaty, the only states, with the exception of the newly recognized state of Timor-Leste, that remain outside the Treaty are three states with nuclear weapons.

When considering recommendations to the 2005 Review Conference on legally binding security assurances (as a separate agreement negotiated in the context of the NPT or as a protocol to the Treaty), the types and application of such assurances will need to be taken into account. While all NNWS to the NPT should be potential beneficiaries of negative security assurances, such assurances would only be applied to NPT states that are in full compliance with their Treaty obligations and could in certain circumstances be qualified. States parties would also need to consider the kinds of negative security assurances, i.e., absolute and qualified assurances. The first type always guarantees a NNWS against the use or threat of use of nuclear weapons by a NWS. This kind of security assurances was envisaged by many of the non-aligned states during the initial negotiations of the Treaty. Given the qualifying statements by most NWS on their unilateral declarations, the second type, or "qualified" negative security assurances, is likely to be more acceptable for the NWS. This type of assurance would exclude cases of an invasion or attack on a nuclear weapons state's territory, its armed forces or troops, its allies or on a state towards which it has a security commitment, carried out or sustained by such a NNWS in association or alliance with a NWS (in terms of NATO for example). The same would apply in a scenario where a NNWS initiates an attack outside its security alliance with the support of a NWS. In such a case, the security assurances granted to such a NNWS would also no longer apply. If, however, a NNWS that is member of a security alliance, were on its own to attack, or be attacked by, a NWS while not having the support or assistance of a NWS, then that NNWS would still be covered by the security assurance provided.

Compelling reasons exist why legally binding negative security assurances should be granted only to NNWS parties to the NPT as an incentive not to pursue a nuclear weapons option and to fully comply with their Treaty obligations. However, the reverse logic of this argument should also be considered, especially given current concerns over non-compliance of some NPT parties, most notably North Korea. Some of the unilateral declarations, in particular those of the United States and the United Kingdom, contain additional qualifications that make it clear that that those assurances are not regarded as applicable if any beneficiary is in material breach of its own NPT nonproliferation obligations.

One of the critical issues in resolving the North Korean crisis is how to address Pyongyang's demand for a "non-aggression pact" with the United States. While North Korea was seen to be clearly in non-compliance prior to the now infamous "axis of evil" speech by President Bush, Pyongyang maintains that it has the right to develop nuclear weapons to defend itself against a possible nuclear threat by the United States, stemming from its inclusion in the list of possible target countries. Since the 1994 US/DPRK Agreed Framework explicitly provided for security assurances for North Korea against the threat or use of nuclear weapons, it could be expected that extracting such assurances from the United States would be one of North Korea's main objectives during the upcoming bilateral negotiations. It would, however, be a serious blow to the validity and relevance of the Treaty, if consideration were given to granting security assurances to a state party, such as North Korea, that used nuclear brinkmanship by threatening to develop nuclear weapons (or as some believe has already developed) in order to gain such assurances. If NNWS, especially those that may still be contemplating a nuclear weapons option, come to the conclusion that the only way to extract assurances against the threat or use of nuclear weapons, would be to threaten, or develop nuclear weapons of their own, it would fast erode the main incentive to join or comply with the NPT -- security without weapons.

It is against this backdrop, that the NPT states parties at the 2005 Review Conference will need to consider how to best address the legitimate security requirement of the NNWS, especially those that have forgone the nuclear weapons in good faith and that remain in full compliance with their Treaty obligations. Although it is yet unclear whether any concrete proposals on legally binding negative security assurances will be submitted at the forthcoming PrepCom, there is a general expectation that the NAM states parties, in particular, will emphasize the need for constructive debate on this critical issue. The recent Kuala Lumpur Summit decided that pending the total elimination of nuclear weapons, efforts to conclude a universal, unconditional, and legally binding instrument on security assurances should be pursued as a matter of urgency, and that legally binding security assurances to NNWS parties to the NPT would strengthen the regime. To this end, it emphasized the need for the PrepCom to allocate specific time for deliberations on security assurances in addition to time for nuclear disarmament and the 1995 resolution. In this regard, it is noteworthy to recall that the NAM states parties (heeding the call by their heads of state at the 1998 Durban Summit) insisted on the allocation of specific time at the PrepCom and the establishment of subsidiary bodies at the 2000 Review Conference for discussion on and consideration of proposals on nuclear disarmament and the 1995 resolution on the Middle East. Pressure by the NAM states parties led to the creation of subsidiary bodies to Main Committee I (nuclear disarmament) and Main Committee II (regional issues, including the Middle East) at the 2000 Review Conference. It is of particular significance that the subsidiary body on nuclear disarmament issues resulted in the "unequivocal undertaking" given by the NWS to eliminate their nuclear arsenals and the agreement on the other 12 "practical steps" for systematic and progressive efforts to eliminate nuclear weapons.

Given the NAM position in this regard, it is conceivable that a subsidiary body on security assurances could be created at the 2005 Review Conference. This would create the environment in which to consider concrete proposals and possibly negotiate a legally binding protocol to the Treaty on the prohibition of the use or threat of use of nuclear weapons against NNWS parties to the NPT.


[1] Adopted by 10 votes to none with Algeria, Brazil, France, India, and Pakistan abstaining.
[2] Article VII of the NPT reads "Nothing in this Treaty affects the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories."
[3] Report of the United Nations Disarmament Commission "Establishment of nuclear weapons free zones on the basis of arrangements freely arrived at among States of the region concerned"(A/54/42).
[4] Treaty for the prohibition of Nuclear Weapons in Latin America and the Caribbean was opened for signature on 14 February 1967.
[5] The South Pacific Nuclear-Free Zone Treaty was opened for signature by the states of the South Pacific Forum on 6 August 1985.
[6] The Treaty on the South-East Asia Nuclear-Weapon-Free Zone was opened for signature on 15 December 1995 as part of the establishment of a zone of peace, freedom, and neutrality in South-East Asia.
[7] The African Nuclear-Weapons-Free Zone Treaty was opened for signature on 11 April 1996.
[8] Association of South-East Asian Nations.
[9] The Chinese Declaration was circulated at the UN General Assembly and Security Council as A/50/155 and S/1995/265.
[10] The Declarations by France, the Russian Federation, the United Kingdom, and the United States were circulated at the UN General Assembly and Security Council as A/50/154-S/1995/264 (France); A/50/151-S/1995/261 (Russia); A/50/151-S/1995/262 (United Kingdom), and A/50/153-S/1995/263 (United States).
[11] CD/1308. Later issued as NPT/CONF.1995/20 of the 1995 NPT Review and Extension Conference.
[12] CD/1312.
[13] A background paper prepared by the United Nations Secretariat on "Developments regarding positive and negative security assurances since the 1995 Review and Extension Conference of the Treaty on the Non-proliferation of Nuclear Weapons" (NPT/CONF.2000/6).
[14] General Assembly Resolution 49/75 K "Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons."
[15] The Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons in Armed Conflict states: "There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons." It also states: "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."
[16] Background paper prepared by the United Nations Secretariat (NPT/CONF.2000/6).
[17] The Court's vote was drawn by seven votes to seven, by the President's casting a vote.
[18] The General Assembly adopted resolutions with the following voting results: 51/45 M; 52/38 O; 53/77 W; 54/54 Q; 55/33 X; 56/24 S and 57/58.
[19] NPT/CONF.2000/1, annex III, NPT/CONF.2000/PC.III/53.
[20] Background paper prepared by the United Nations Secretariat (NPT/CONF.2000/6).
[21] Paragraph 7 under "Security Assurances" in the 1990 NPT Review Conference draft Final Document reads as follows: "The Conference recognises the need for effective international arrangements that could be included in an international legally binding instrument, to assure non-nuclear-weapon States parties to the Treaty against the use or threat of use of nuclear weapons. The conclusion of an international instrument providing for such arrangements would strengthen the security of non-nuclear-weapon States parties to the Treaty and offer additional incentives to other non-nuclear-weapon States to adhere to the Treaty. Participation of all nuclear-weapon States, including those which are not parties to the Treaty, in such an instrument would contribute to ensuring its maximum effectiveness."
[22] Article IX (3) of the Treaty on the Non-Proliferation of Nuclear Weapons.
[23] Security Council Resolution 984 (1995).
[24] NPT/CONF.1995/32, Part I, annex, decision 2, paragraph 8.
[25] Working paper by South Africa on "Security Assurances" (NPT/CONF.2000/PC.III/9).
[26] NPT/CONF.2000/28 (Parts I & II).
[27] Chairman's factual summary annexed to the Report of the Preparatory Committee on its first session (NPT/Conf.2005/PC.I/21).
[28] John Simpson and Tanya Ogilvie-White, "The NPT and its 2003 PrepCom Session: A Regime in Need of Intensive Care," The Nonproliferation Review 10 (Spring 2003).

 

Author(s): Jean Du Preez
Related Resources: NPT, Treaties & Regimes, Nuclear, IONP Pubs
Date Created: April 24, 2003
Date Updated: April 28, 2003
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