Lawyers' Committee on Nuclear Policy
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New York, NY 10017
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website www.lcnp.org

April 20, 2000


In official statements in connection with the Nuclear Non-Proliferation Treaty (NPT) and at the United Nations, the United States claims to be in compliance with the Article VI obligation to negotiate nuclear disarmament. For example, a statement on the NPT released by the White House on March 6, 2000 asserted that "the United States is committed to the ultimate elimination of all nuclear weapons" and that "the United States rededicates itself to work tirelessly and expeditiously to create conditions that will make possible even deeper reductions in nuclear weapons, and ultimately their elimination". (The full text of the statement's discussion of disarmament is included as an appendix to this paper.)

However, an examination of authoritative US policy statements made in non-NPT and non-UN, mostly national, contexts reveals:

1) the United States remains committed to the policy of nuclear deterrence and to the maintenance of sizable nuclear forces "indefinitely" or "for the foreseeable future", and reductions contemplated in the START process are viewed as consistent with this commitment;

2) the policy of nuclear deterrence includes a declared policy of massive retaliation against nuclear attack (with an unstated option of a preemptive strike against enemy nuclear forces), and the declared option of first use against an overwhelming conventional attack or threat or use of biological or chemical weapons;

3) while the United States presently intends not to carry out full-scale test detonations, it is committed to maintaining the capability to design and deploy modified weapons with new military characteristics absent full-scale testing and in 1998 deployed such a weapon, and also is committed to maintaining the capability to design and deploy new weapons, including through full-scale testing if deemed necessary.

At the 2000 NPT Conference the United States and Russia will tout the START process. However, while the Duma has approved START II, its implementation is dependent upon highly uncertain US Senate approval of 1997 agreements concerning what tests can be conducted under the Anti-Ballistic Missile (ABM) Treaty. Completion of START III negotiations will depend upon equally uncertain resolution of disputes over US missile defense plans. Russia also is stating that US abrogation or infringement of the ABM Treaty is grounds for Russia's withdrawal from START II. If START II and START III as currently envisaged are implemented, Russia and the United States a decade from now likely each will retain on the order of 2000 deployed strategic warheads plus thousands of additional tactical, spare, and reserve warheads.

Article VI of the NPT provides in relevant part that "[e]ach of the Parties to the Treaty undertakes 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 ..." In its 1996 advisory opinion, the International Court of Justice provided the authoritative legal interpretation of Article VI, concluding unanimously that:

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

The "cessation of the arms race" element of Article VI governs both qualitative and quantitative aspects of nuclear weapons development, production and deployment. It refers, in particular, to a comprehensive test ban, which historically was considered a decisive restraint on weapons development. A declaration by France, Russia, the United Kingdom and the United States made at the Conference on Disarmament in anticipation of the 1995 NPT Review and Extension Conference states that "the nuclear arms race has ceased." CD/1308, 7 April 1995. That manifestly is not true with respect to qualitative development.

US policy statements demonstrating policy commitments in contradiction with Article VI as interpreted by the ICJ are set out below under two headings, the first relating to nuclear disarmament, the second to cessation of the nuclear arms race. Some additional statements of NATO, the United Kingdom, Russia, and France are included under a third heading.

I. US POLICY STATEMENTS IN CONTRADICTION WITH THE ARTICLE VI REQUIREMENT TO BRING TO A CONCLUSION NEGOTIATIONS ON NUCLEAR DISARMAMENT

[N]uclear weapons remain important as one of a range of responses available to deal with threats or use of NBC [nuclear, biological, chemical] weapons against U.S. interests. They also serve as a hedge against the uncertain futures of existing nuclear powers and as a means of upholding U.S. security commitments to U.S. allies. In this regard, U.S. nuclear forces based in Europe and committed to NATO provide an essential political and military link between the European and North American members of the Alliance, and permit widespread European participation in all aspects of the Alliance's nuclear role. Thus, FOR THE FORESEEABLE FUTURE (emphasis added), the United States will retain a robust triad of sufficient nuclear forces ... The Department believes THESE GOALS CAN BE ACHIEVED AT LOWER FORCE LEVELS (emphasis added) .... William S. Cohen, U.S. Secretary of Defense, Annual Report to the President and Congress 2000, Chapter 1, "Defense Strategy," http://www.dtic.mil/execsec/adr2000/chap1.html

[T]he fundamental purpose of US nuclear forces is to deter the use of weapons of mass destruction (WMD), particularly nuclear weapons, and to serve as a hedge against the emergence of an overwhelming conventional threat. Credible and capable nuclear forces are ESSENTIAL FOR NATIONAL SECURITY (emphasis added). Deterrence of employment of enemy WMD, whether it be nuclear, biological, or chemical, requires that the enemy leadership believes the United States has both the ability and will to respond promptly and with selective responses that are credible (commensurate with the scale or scope of enemy attacks and the nature of US interests at stake) and militarily effective. - US Joint Chiefs of Staff, Doctrine for Joint Nuclear Operations, Joint Pub 3-12 (Dec. 1995), p. V

We can achieve a lot in terms of reductions, we can achieve a lot in terms of improving security, we can limit the nuclear danger by going down to a level of 2,000 to 2,500 WITHOUT JEOPARDIZING . . . OUR INTERESTS WITH RESPECT TO NUCLEAR DETERRENCE (emphasis added), [State Department spokesman James P.] Rubin said yesterday [January 27, 2000, in explaining US rejection of a Russian offer to cut deployed strategic warheads to 1,500 from negotiated but not yet entered into force or implemented START II levels of 3,000 to 3,500]. - Steven Mufson, "Russia: Cut Arsenals to 1,500 Warheads, US Prefers 2,000 to 2,500 Units," Washington Post, January 28, 2000, p. 17

FOR THE FORESEEABLE FUTURE (emphasis added), we will continue to need a reliable and flexible nuclear deterrent. .... [N]uclear deterrence, far from being made wholly obsolete, remains an essential, ultimate assurance against the gravest of threats. ...[W]e will continue to maintain nuclear forces of sufficient size and capability to hold at risk a broad range of assets valued by [hostile] political leaders. - Statement of Undersecretary of Defense Walter Slocombe before the Internal Security, Proliferation and Federal Services Subcommittee of the Senate Governmental Affairs Committee on February 12, 1997, quoted in Office of the Secretary of Defense, Nuclear Weapons Systems Sustainment Programs (updated, 16 June 1998), http://www.defenselink.mil/pubs/dswa/

[Presidential Decision Directive 60, adopted in November 1997, affirms] that the U.S. will continue to rely on nuclear arms as a cornerstone of its national security for the 'INDEFINITE FUTURE' (emphasis added).... [According to Robert Bell, special national security assistant to President Clinton, nuclear weapons] are still needed to deter 'aggression and coercion' by threatening a response that 'would be certain and overwhelming and devastating' [and] the directive still allows the United States to launch its weapons after receiving warning of attack - but before incoming warheads detonate - and also to be the first to employ nuclear arms in a conflict. - R. Jeffrey Smith, "Clinton Directive Changes Strategy on Nuclear Weapons," Washington Post, 7 December 1997, based on interview with Robert Bell

On August 11, 1995, when I [President Clinton] announced U.S. support for a "zero yield" CTBT, I stated that: "... As part of our national security strategy, the United States must and will retain strategic nuclear forces sufficient to deter any future hostile foreign leadership with access to strategic nuclear forces from acting against our vital interests and to convince it that seeking a nuclear advantage would be futile. In this regard, I consider the maintenance of a safe and reliable nuclear stockpile to be a SUPREME NATIONAL INTEREST (emphasis added) of the United States...." - September 22, 1997 letter from President Clinton transmitting CTBT ratification package to the Senate

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