The Treaty on the Non-Proliferation of Nuclear Weapons
Author(s): Edwin Brown Firmage
Source: The American Journal of International Law, Vol. 63, No. 4 (Oct., 1969), pp. 711-746
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2199482
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THE TREATYON THE NON-PROLIFERATION
OF
NUCLEARWEAPONS
By EdwinBrownFirmage*
THz Num
On March 13, 1969, the United States Senate by a vote of 83 to 15 consented to the ratificationof a treaty described as "the most important
internationalagreementbroughtbefore the U. S. Senate since the North
Atlantic Pact" 1 and "the most importantinternationalagreementlimiting nuclear arms since the nuclear age began." 2 Assuminga timelyentry
into force,the Treaty on the Non-Proliferationof Nuclear Weapons may
delay incarnationof the specterwhich"haunted" John F. Kennedy:
I see the possibilityin the 1970's of the President of the United
States having to face a world in which15 or 20 or 25 nationsmay have
these [nuclear] weapons. I regard that as the greatestpossible danger
and hazard.8
The consequencesof nuclear diffusion,and by inferencethe basic prophylactic purposes of any treaty banning proliferation,were seen by
President Kennedy:
I ask you to stop and think for a momentwhat it would mean to
have nuclear weapons in so many hands, in the hands of countries
large and small, stable and unstable, responsible and irresponsible,
scatteredthroughoutthe world. There would be no rest for anyone
then, no stability,no real security,and no chance of effectivedisarmament. There would only be the increased chance of accidental
war and increasednecessityfor the great powers to involve themselves
in what otherwisewould be local conflicts.4
To be effective,
a non-proliferation
treatymust prohibitboth the production of nuclear weapons by presentlynon-nuclear-weaponstates and the
acquisitionof nuclear weapons by states which do not have the capacity to
produce their own. The formerproblemis increasinglyacute as nations
continueto develop peaceful applicationsof nuclear energy. Over 40 nonnuclear-weaponstates have operatine nuclear reactors. Ninety-ninenew
*
Universityof Utah Collegeof Law.
1 Statementof SenatorJohnSparkman,Hearingson the Treatyon the Nonprolifera-
tion of Nuclear Weapons before the Senate Committeeon Foreign Relations,90th
Cong.,2nd Sess. at 2 (1968).
2 Message fromPresidentLyndonB. Johnsonto the Senate on the Treaty on the
Non-Proliferation
of NuclearWeapons,July9, 1968; 62 A.J.I.L. 954 (1968).
3 "Text of PresidentKennedy'sNews Conference
on Foreign& DomesticAffairs,"
New York Times (Westerned.), p. 4, col. 7, March22, 1963.
4 Hearingson the ArmsControland Disarmament
Act Amendments
beforethe House
Committee
on ForeignAffairs,90thCong.,2nd Sess. at 28 (1968).
711
712
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nuclear power units have been recentlyannounced. Since plutonium is
boththe by-productof nuclear reactorsused for peaceful purposes such as
generationof electricpower or desalination,and the ingredientof nuclear
weapons, a dilemma is posed: How do we reap the benefitsof peaceful
application of nuclear energy and avoid the specter of proliferationof
nuclear weapons? Conservativeestimatesproject that by 1985 there will
nuclear power reactorsproducing enough plutoniumas a bybe sufficient
product to peaceful endeavorsto produce 20 nuclear bombs a day.5 This
potentially uncontrolledproduction of plutonium will result without or
beyond any planned program directed at the production of nuclear
weapons. The possibility for clandestine production of such weapons
is obvious.
Many nationspresentlypossess the capacity to produce nuclear weapons.
The limitingfactorsrelate much more to technologicaland industrial capacity ratherthan theoreticalknowledge. If decisionsare made by certain
states to produce or otherwiseacquire nuclear weapons, a geometricrise
in the numberof nuclear-weaponstates mighttake place due to the snowballing effectsuch decisionswould have upon potential enemiesin various
areas of regionaltension.
The AtomicEnergy Commissionhas reportedthat manynationscould independentlyproduce a few "rudimentarynuclear explosive devices" with
unsophisticatedmeans of delivery. Seven nations6 have the capacity to
manufacturenuclear weapons and relativelysophisticateddeliverysystems
within five to ten years from the time of a national decision to do so.
Sixteen others7 possess slightlyless capacity but could also produce such
weapons and means of deliveryroughlywithinthe same time span.
Without questionthe major purposes of the treatyrelate to the prevention of nuclear war. However,a not inconsiderableaccomplishmentof the
treaty,if it is successful,will be the preventionof the diversionof badly
5 Nuclearreactorsare fueledwithnaturaluranium. Plutonium,a major elementin
of this process. See Speech by Under
nuclearweapons,is producedas a by-product
Secretaryof State Nicholas Katzenbach,April 26, 1968, 1968 Proceedings,American
Societyof InternationalLaw 274.
"By 1985 the world's peacefulnuclearpowerstationswill probablybe turningout
plutoniumfor the productionof tens of nuclearbombs everyday.
enoughby-product
This capabilitymustnot be allowedto resultin the furtherspreadof nuclearweapons.
wouldbe nuclearanarchy,and the energydesignedto lightthe world
The consequences
couldplungeit into darkness." Message fromPresidentLyndonB. Johnson,note 2
above.
6 Australia,Canada, Federal Republicof Germany,
India, Italy, Japan and Sweden.
of Nuclear Weapons,note 1 above,
Hearings on the Treaty on the Nonproliferation
at 31.
7 Argentina,
Hungary,Israel, NetherAustria,Belgium,Brazil, Chile,Czechoslovakia,
lands, Pakistan,Poland, South Africa,Spain, Switzerland,United Arab Republic,and
Yugoslavia. Ibid.
numbersand names of nationspotenFor otherprojectionson worldmegatonnage,
tiallycapable of joiningthenuclearclubin thenexttwentyyears,see Kahn and Wiener,
"The Perils of Nuclear Proliferation,"
The Year 2000 (1967); Sir JohnCockcroft,
and David Inglis, "The Outlookfor Nuclear Explosives," in Unless Peace Comes
(N. Calder,ed., 1968).
1969]
TREATY ON NON-PROLIFERATION OF NUCLEAR WEAPONS
713
needed resourcesinto weapons production.8 SecretaryGeneralU Thant, at
the request of the General Assembly, appointed a body of experts to
determinethe costs of nuclear weapon development.9 The findingsof this
body were that a moderate program involving the manufacture of 100
20-kilotonplutoniumdevices over ten years would cost $188 million. Gaseous diffusionplants and developmentof thermonuclearweapons would
be much more expensive. The biggestexpense by far is not the explosive
device but the deliveryvehicle. While the treaty does not prohibit delivery vehicles possessingno bombs,warheads or other explosive devices,
presumablymost states will not produce a sophisticateddelivery system
withoutnuclear teeth. 30-50 jet bombers,50 MRBM's and 100 plutonium
warheads cost $1.7 billion. 20-30 thermonuclearweapons, 100 IRBM's
and 2 nuclear submarinescost $5.6 billion. French expendituresfor nuclear militarycapacity in 1969 are estimatedat $8.4 billion.'0
THE PAST 11
The firstattemptto negotiate an agreementcontrollingatomic energy,
the Baruch Plan,12 proposed an internationalauthority,the International
Atomic DevelopmentAgency, to own or control all "dangerous" atomic
materialsfromthe miningprocess throughmanufacturingto the finished
product. The IADA would have possessedsweepinginspectionrightsinto
thoseaspects of atomic energywhichwere not to be given it by monopoly.
The United States offeredto destroyits nuclear weapons and give its informationand equipmentto the IADA.
While the United States was by this proposal offeringto give up a tremendous (though temporary) strategic advantage, its monopoly of nuclear weapon-s,the Soviets saw this proposal as an attemptto insure that
they would never possess nuclear capacity. Since the IADA was to be a
United Nations organ, and since Western Powers at that time controlled
8 See the comparativestatisticson worldmilitaryexpenditures
at p. 733 below.
9 United States Arms Controland DisarmamentAgency,InternationalNegotiations
on the Treatyon the Nonproliferation
of NuclearWeapons93-94 (1969) (hereinafter
cited as InternationalNegotiations).
10
Ibid.
11The best analysisof earlyU. S. arms controlnegotiationsis in Bechhoefer,
Postwar NegotiationsforArmsControl(1961). For an analysisof ther8le of armscontrol
and disarmament
in Sovietforeignpolicy,see Larson,Disarmamentand Soviet Policy,
1964-1968 (1969), and Edwards,Arms Controlin InternationalPolitics (1969). For
an analysis of postwarattemptsto curb the proliferationof nuclear weapons,see
Firmage,"Anarchyor Order? The Nth CountryProblemand the InternationalRule
of Law," 29 MissouriLaw Rev. 138 (1964).
12 See Departmentof State, 1 Documentson Disarmament:1945-1956 (Pub. No.
7008). The BaruchPlan: Statementby the UnitedStates Representative
[Baruch] to
the UnitedNationsAtomicEnergyCommission,
June 14, 1956, pp. 7-16 (1960). For
the best accountof the originof the BaruchPlan, see Departmentof State (Pub. No.
2702), The InternationalControlof Atomic Energy: Growthof a Policy (1946).
Also see Departmentof State (Pub. No. 3161), The InternationalControlof Atomie
Energy: Policy at the Crossroads(1948); (Pub. No. 2498), The Acheson-Lilienthal
Report(1946).
714
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a preponderantmajority of the votes in every United Nations organ, the
betweenthis and outrightUnited States control.
Soviets saw littledifference
The negotiationson the Baruch Plan centeredupon the chronologyof
nuclear disarmamentby the United States and inspectionunder the IADA,
the United States insisting upon inspection before disarmament,the
U.S.S.R. demandingnuclear disarmamentprecedinginspectionand control.
While this prolonged debate continued,technologicaldevelopmentswere
renderingthe plan untenable. In 1949 the Soviets exploded their first
atomic bomb,to be followedin 1954 by a hydrogendevice. As stockpiles
bombsmultiplied,the conceptof international
of nuclear and thermonuclear
ownershipas a preventionof proliferationbecame increasinglyimpossible
of accomplishment.Following the Soviet explosion of a hydrogendevice,
internationalownershipwas dropped from the arms control proposals of
theUnited States.
In the same year in whichthe Baruch Plan was proposed,Congressacted
to insure that the one state then possessing nuclear weapons would not
spread such weapons to othernations. The MeMahon Act 13 and the legislation which succeeded it, the Atomic Energy Act of 1954, as amended in
1958,14prohibittransferof nuclear weapons in foreigncommerce. These
statutes permittedinternationalco-operationin peaceful uses of atomic
energy,and the transferof fissionablematerial and certain non-nuclear
parts for nuclear weapons to an ally who had made "substantial progress
in the development"of nuclear weapons.'5 This exceptionwas aimed primarily at the United Kingdom which,togetherwith Canada, had participated in the Manhattan Project. The basic prohibitionupon the "transfer" of nuclear weapons was to becomea centralpart of the Treaty on the
Non-Proliferationof Nuclear Weapons.
While our firstproposal lookingtoward a multilateraltreatyprohibiting
the transferof nuclear weapons was part of a package offeredin 1957,16as
early as 1954 the Federal Republic of Germanyundertooknot to manufacture nuclear weapons in its territoryupon becoming a member of
NATO and the Western European Union.17
PresidentEisenhower's Atoms for Peace Speech 18 led to the creationof
the InternationalAtomic Energy Agency (IAEA) in 1956."' The IAEA
13
Atomic Energy Act of 1946, 60 Stat. 755-775, 42 U.S.C.A. ??2011-2296.
14 AtomicEnergyAct of 1954,as
amended,42 U.S.C. 2121; 72 Stat. 276.
i5 Ibid. at 591(c), 42 U.S.C. 52121(c) (1964).
16 Department
of State, Documentson Disarmament:1957-1959,Proposals for Partial Measuresof Disarmament868-870.
17 Final Act of the Nine-PowerConference,
London,Sept.-Oct.,1954: ProtocolIII
to the Treatyof Brusselscreatingthe WesternEuropean Union. 49 A.J.I.L. Supp.
134 (1955).
18 U.N. GeneralAssembly,
Records443 (1953).
8thSess.,Official
19International
AtomicEnergyAgencyStatute,1956,8 U. S. Treaties1093; T.I.A.S.,
No. 3873; 276 U.N. TreatySeries 3 (1956); 51 A.J.I.L. 466 (1957). For analysesof
the Statute,See Bechhoeferand Stein, "Atoms for Peace: The New International
AtomicEnergyAgency," 55 Mich. Law Rev., 747 (1957); Firmage,note 11 above;
Stoessinger,"The InternationalAtomicEnergy Agency: The First Phase," 13 ITnt.
Organization394 (1959).
1969]
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ON NON-PROLIFERATION
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WEAPONS
715
is a United Nations organ with powers relatively autonomous from its
parent body. It is composedof most of the MemberStates of the United
Nations, including the United States and the Soviet Union. Its purposes
are to promotethe peaceful application of atomic energyand prevent diversionof fissionablematerialfrompeaceful purposes to nuclear weaponry.
This Agency is charged with the responsibilityof administeringthe safeguards systemof the Treaty on the Non-Proliferationof Nuclear Weapons.
ArticlesIII and XII of the IAEA Statute provide for a systemof safeguards to prevent diversionof nuclear material. The safeguards system
applies mandatorilyto specifiedtypes of fissilematerial and facilitiessupplied a beneficiarystate by the Agency (or by another state which has
delegated safeguards functionsto the Agency, as has the United States
in its bilateral agreementssince 1962). Under Articles III and XII, the
Agency has extensivepowers over its projects or bilateral or multilateral
projects under IAEA safeguards,including: (1) access to all records of
the project; (2) limitedcontrolover by-products;(3) a given numberof
inspectionsin the recipient states by IAEA inspectorsat the Agency's
own timing; (4) the rightto suspend or terminateassistanceon the ground
of non-compliance;and (5) the duty to report non-complianceto the
Security Council and the General Assembly.20
Another method of impeding proliferationof nuclear weapons is the
creationof nuclear-freezones. The firstsuch proposal was made by Polish
Foreign Minister Rapacki for a denuclearized zone in central Europe.21
Like so many other proposals concerningthis crucial area, the plan was
a victim of cold war tension. The extent to which the world has been
forcedto retreatfromthe major battlefieldsof the cold war to findsuitable geographyto denuclearizeis seen by the fact that the firstnuclear-free
zone was createdin Antarcticaby treatyin 1959.22 The 1967 Latin American Nuclear Free Zone Treaty23 will create a nuclear-freezone in that
area. The 1967 Outer Space Treaty 24 includes an agreementforbidding
the placementof nuclear weapons "in orbit around the Earth" or their
installation"on celestialbodies" or theirstationing"in outer space."
A major advanee toward the accomplishmentof effectiveinternational
See Firmage, note 11 above, at 144-147.
See Address by the Polish Foreign Minister (Rapacki) to the General Assembly,
Oct. 2, 1957, in Documents on Disarmament: 1957-1959, note 16 above, at 889; Note
and Memorandum from the Polish Foreign Minister (Rapacki) to the American Ambassador (Beam), Feb. 14, 1958, Ibid. at 944; News Conference Remarks by the
Polish Foreign Minister (Rapacki) Regarding an Atom-Free Zone in Central Europe,
Nov. 4, 1958, ibid., at 1217.
22 The Antarctic Treaty, Dec. 1, 1959, 12 U. S. Treaties (1961) 794; T.I.A.S., No.
4780; 402 U.N. Treaty Series 71 (1959); 54 A.J.I.L. 477 (1960).
23 U.N. Doc. A/C.1/946 (1967).
The United States and the United Kingdom signed
Protocol II providing that both states would respect the treaty's aims not to use or
to threaten to use nuclear weapons against the parties.
24 Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, T.I.A.S.,
No. 6347 (1967); 61 A.J.I.L. 644 (1967). See Larson, note 11 above, at 145-147, for
an analysis of Soviet strategy on the treaty.
20
21
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laws proscribingnuclear proliferationwas made in the 1963 Partial Test
Ban Treaty.25 This treatyprohibitednuclear weapons tests in the atmosphere, in outer space, and under water. It was directed not only at the
eliminationof atmosphericpollution and radioactivefall-outbut, perhaps
more importantly,at impeding the developmentof nuclear weapons by
making nuclear weapons-testingmore costly and difficult.
NEGOTIATING THE TREATY
Both the United States and the Soviet Union included non-proliferation
proposals withintheir disarmamentpackages in 1957.26 In 1958 and 1959
Ireland introducedresolutionsin the General Assemblysupportingan internationalagreementprohibitingthe transferof nuclear weapons.27 A
similar Irish resolutionwas passed by the General Assemblyin 1961.28
From 1957 throughthe summerof 1966, the major differencebetween
Soviet and U. S. drafts of a non-proliferationagreementconcerned the
permissibilityof nuclear sharing arrangementswithina regional organization such as NATO. The United States demanded that provisionbe made
in any non-proliferation
agreementthat a conceptsuch as the Multilateral
Force (MLF) be permittedif the total numberof states or organizations
possessing nuclear weapons were not to be therebyincreased. That is,
nuclear weapons would not be transferredto a regional organizationunless a nuclear-weaponstate within that grouping transferredits entire
nuclear force to such a regional organization. The United States argued
that no proliferationwould occur in that the numberof entitiespossessing
nuclear weapons would remain constant. The United States draft treaties
submittedto the Eighteen-NationDisarmament Committee (ENDC) at
Geneva in August, 1965,29 and March, 1966,30 would have allowed such a
regional force, while the Soviet draft of September,1965,31would not.
However, eventswithinthe United States and in Europe soon eliminated
this major point of difference.
The United States had proposed the MLF as a means of partially fulfillingany feltneed of West Germanyforthe possessionof nuclear weapons,
while at the same time avoiding proliferationor independentGerman con25 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and
Underwater, Aug. 5, 1963, 14 U. S. Treaties (1963) 1313; T.I.A.S., No. 5433; 480
U.N. Treaty Series 43 (1963); 57 A.J.I.L. 1026 (1963).
27 U.N. Doe. A/Res/1380 (XIV)
26 See note 16 above.
(1959).
28 General Assembly Res. 1664 (XVI),
U.N. General Assembly, 16th Sess., Official
Records, Supp. 17, at 5, U.N. Doe. A/4980/Add. 1 (1961); Department of State, Documents on Disarmament: 1961, at 693.
29 U. S. Proposal Submitted to the Eighteen-Nation Disarmament Committee: Draft
Treaty to Prevent the Spread of Nuclear Weapons, Aug. 17, 1965. International Negotiations, note 9 above.
30 U. S. Proposal Submitted to the Eighteen-Nation Disarmament Committee:
Amendment to the U. S. Draft Treaty to Prevent the Spread of Nuclear Weapons,
March 21, 1966, ibid. at 140.
81 State Department, Documents on Disarmament: 1965, Soviet Draft Treaty on the
Nonproliferationof Nuclear Weapons, Sept. 24, 1965, at 443-446.
1969]
TREATY ON NON-PROLIFERATION OF NUCLEAR WEAPONS
717
trol. The receptionof this proposal by our European allies, however,was
mixed. Basic problemsof ultimate control over such a force seemed to
many to be insuperable. And in the United States, the debate over the
Pastore Resolution32 commendingthe President's effortsto negotiate a
non-proliferation
agreementgave conclusiveevidencethat the Senate would
not amend the Atomic Energy Act 3 (which prohibitsthe "transfer" of
nuclear weapons in foreign commerce) to allow United States nuclear
weapons to be transferredto any proposed MLF. With this timelyscuttling of the MLF fleet,the major Soviet objection to the United States
draft treatywas eliminated.
During the next year intensiveprivate negotiationstook place between
William Foster, Director of the Arms Control and DisarmamentAgency
and our representativeat Geneva, and Ambassador Roshchin of the
U.S.S.R., Co-Chairmenof the ENDC. While frequent consultationsoccurredbetweenthe major parties and theirrespectiveallies, and with other
membersof the ENDC, the negotiationsthemselvesoccurred bilaterally
ratherthan withinthe ENDC.
On August 24, 1967, the United States and the Soviet Union had agreed
upon identical texts of a draft treaty and submittedthe same, minus a
safeguards article, to the ENDC.34 The failure of agreementon a safeguards article came about because of the existence of two international
safeguards systems,that of the IAEA and the European Atomic Community (Euratom). It has been United States policy to work towards a
"single, worldwidesystemof safeguards,"35 but Common Market countries feared an abandonment of Euratom and consequently a blow to
eventual European unity if the IAEA were to performall safeguards
functionswithinCommonMarketcountries. The United States was caught
betweenits own goal of a single, world-widesafeguards system,and the
desire of its European allies to preservea role for Euratom.
The debate on inspectionresultedin strangedoctrinalbedfellows. West
Germanyand otherCommonMarket countrieswanted inspectionby Euratom to avoid industrial espionage and a possible weakening of European
integration;the Soviet Union, which for years had proposed various methods of self-inspectionin its disarmamentschemes,now, quite understandably if not consistently,opposed Euratom inspectionas constitutingselfinspection for Common Market countries.36 The U. S. draft treaty of
August, 1965,37 provided that states would "cooperate in facilitatingthe
application of International Atomic Energy Agency or equivalent international safeguards on all peaceful nuclear activities." 38 There was no
Soviet equivalent in its correspondingdraft,but they had supported the
proposal of East Germany,Poland, and Czechoslovakia to accept IAEA
82
S. Res. 179,89thCong.,2d Sess., 112 Cong.Ree. 10802 (1966).
See note 14 above.
Departmentof State, Documentson Disarmament:1967, at 338-341; 62 A.J.I.L.
308 (1968).
85 See note 1 above,at 6.
88 See Larson,note 11 above,at 150,
87 See note29 above.
38 Ibid.
88
84
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safeguardson all their peaceful nuclear activitiesif the Federal Republic
of Germanywould do the same.89 The Soviet Union regularly attacked
the Federal Republic on its rejection of this proposal and on other issues
during the negotiatingprocess.40
On April 27, Foreign MinisterBrandt suggested before the Bundestag
the creationof a "control system" by whichthe IAEA would reach agreementwith Euratom on verificationproceduresby which the formerwould
satisfy itself that the latter was adequately performingthe safeguards
functions.41 This suggestionwas close to the formula eventually agreed
upon.
One strikingfeature of the negotiationof the treaty was the degree of
collaborationbetweenthe United States and its European allies throughout
the process. The safeguards article reflectsthat collaborationin a particularlystrikingway. Prior to the presentationof the firstU. S. draft
treaty of August, 1965, our NATO allies had been carefully consulted
throughthe North Atlantic Council. This body gave prior assent to the
submission of the first draft.42 After talks in October, 1966, between
President Johnson,SecretaryRusk and Foreigu MinisterGromyko,a new
draft was submittedto our NATO allies in December. Prior to the negotiationsleading to the August, 1967, draft,Mr. Foster made a tour of
the European capitals-Bonn, Rome, Brussels, and The Hague-to work
out a compromiseon a safeguards article. Following intensive negotiationsat othercapitals and in Washington,D. C., safeguardsproposals were
presented to the North Atlantic Council. The United States then presentedwhat amountedto a NATO draft to the Soviet Union. The Soviets
in turn presenteda safeguardsdraft article based largely upon the NATO
draft of April 20, 1967. The Soviet proposal was presentedto the North
Atlantic Council and to all Alliance membersand Euratom. On January
18, 1968, a revised draft treaty containing Article III, the safeguards
provision,was presentedto the 13th Session of the ENDC. The safeguards
provisionshad been approved by the NorthAtlantic Council the preceding
November.43
The draft of January 18 included,in addition to the safeguards article,
new articles (V, VI, and VII) insuring the benefitsof peaceful nuclear
explosions to the non-nuclear-weaponstates, obliging the nuclear-weapon
states to "pursue negotiationsin good faith" toward nuclear disarmament,and recognizingthe right of states to conclude agreementscreating
regional nuclear-freezones.44
As early in the treaty negotiationsas 1966, non-nuclear-weaponstates
had demanded guarantees from nuclear-weaponstates insuring freedom
states agreed
fromnuclearintimidationor attackif the non-nuclear-weapon
to the treatyprohibitions. President Johnsonand Ambassador Goldberg
89 International
note9
Negotiations,
40Ibid. at 57.
42 Ibid. at 29.
above,at 70.
41
43
Ibit. at 71.
Ibid.
44 RevisedDraft Treatyon the Nonproliferation
of NuclearWeapons,Jan. 18, 1968,
ibid. at 150, 153.
1969]
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promisedthat some sort of guarantee would be given. Premier Kosygin
suggestedan article in the treatycommittingnuclear-weaponstates to refrain fromuse of nuclear weapons against states having no such weapons
on their territories.46The wording of this proposal had the usual and
obvious purpose of attemptingto isolate the Federal Republic of Germany
from NATO defense strategy. The U.A.R., Mexico, and Burma backed
the Soviet proposal.4
India, understandablyconcernedabout a nuclear China, gave noticethat
it would not sign the treatyunless adequate securityguarantees were included. External AffairsMinisterChagla told Parliament that India had
a "special problemof securityagainst nuclear attack or nuclear blackmail"
and would not sign withoutadequate assurances by the nuclear Powers.48
The United Arab Republic, with the support of Rumania and Switzerland, proposed an amendmentincorporatingthe proposal of the Soviet
Union that the nuclear-weaponstatesundertake"not to use, or threatento
use, nuclear weapons against any non-nuclear-weaponState Party to this
" 49 Canada opposed
Treatywhichhas no nuclear weapons on its territory.
this thinly-veiledattemptto force nuclear weapons out of Germanyand
Germanyout of NATO. The Canadian proposal called for parallel declarations by the nuclear-weaponstates coupled with a United Nations resolution,50which was the solution finally adopted. On March 7, 1968, the
Co-Chairmenand the United Kingdompresentedto the ENDC a tripartite
statementon securityassurances in the formof a draft Security Council
resolution."'
On March 11, the Co-Chairmenintroduceda joint draft treaty to the
ENDC, incorporatingsuggestionsby the United Kingdom and Sweden.
The preamblewas revisedto include referenceto the Partial Nuclear Test
Ban Treaty clause pledging effortstoward a comprehensivetest ban. Article VI was strengthenedat Sweden's insistence,broadeningthe commitments of the nuclear-weaponstates to seek nuclear and conventionaldisarmamentagreements.52The ENDC sent its report,with the Tripartite
Proposal on Security Assurances and the draft treaty attached, to the
Twenty-SecondGeneral Assembly and the United Nations Disarmament
Commissionon April 24.
The draft treaty became the center of a major debate in the General
Assembly. On May 1, the United States, the Soviet Union, and 18 other
statessubmitteda resolutionendorsingthe treaty. Japan, Brazil and India
all raised serious objections. Japan was critical of its disproportionate
impact upon nuclear-weaponstates as contrastedwith non-nuclear-weapon
met. The treatywould
states. Securityproblemswere still not sufficiently
only remain effectiveif substantial progress was quickly made by the
nuclear-weaponstates toward nuclear disarmament.58Brazil (later to ab46 Ibid.
Ibid. at 73.
48Ibid.
Ibid. at 74.
50 Ibid. at 89-90.
49 Ibid. at 89.
51 Ibid. at 112.
52Ibid. at 113; 62 A.J.I.L. 817 (1968).
53 International Negotiations, note 9 above, at 118.
46
47
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[Vol. 63
stain on the vote on the resolution) criticizedthe draft treaty on several
grounds: first,the developmentof peaceful nuclear explosive devices was
denied the non-nuclear-weapon
states; second, no "tangible commitment"
to nuclear disarmamenthad been made by the nuclear-weaponstates; third,
such states were not obliged to place their peaceful nuclear activities
under IAEA safeguards; and finally,the securityassurances were inadequate, and formal obligationsby the nuclear-weaponstates not to use or
threaten to use nuclear weapons against non-nuclear-weaponsignatory
states were indispensable.54 India (also later to abstain) announced that
it would not sign. Ambassador Husain criticizedthe treaty for not providing for a cut-offin productionof fissionablematerials (the prevention
of so-called "vertical proliferation") and the absence of any requirement
thatnuclear-weaponstatesaccept the safeguardsprovisionsof Article III.55
India also consideredArticle VI inadequate; to insure that the nuclearweapon statesunderstoodthe link betweenArticleVI and the durabilityof
the treaty,AmbassadorHusain stated that his governmentfavoredthe proposal suggestedby Italian Foreign MinisterFanfani on July 29, 1965, that
non-nuclear-weapon
states would declare a "moratorium" on the acquisition of nuclear weapons for a specifiedtime,to be made a permanentrenunciationonly if the nuclear-weaponstates reached agreementon nuclear
weapons disarmamentwithinthat time.56
The sponsorsof the May 1 draft resolutionpresenteda revised draft on
May 28, emphasizingthe need for sharing the benefitsof peaceful nuclear
activitiesand the necessityfor quick agreementamong the nuclear-weapon
statesfor furthernegotiationson nuclear disarmament. Twentyadditional
states joined as co-sponsorsof the resolution.57 On May 31 the United
States and the Soviet Union submitteda final draft treaty meetingsome
of the objections raised in the General Assemblydebate.58 On June 12,
the General Assemblyadopted the revised resolutionby a vote of 95 to 4,
with21 abstentions.59
The United States, the Soviet Union, and the United Kingdom submitted
to the Security Council their proposal for security assurances after the
Assemblyhad approved the resolutioncommendingthe treatyto the Member States. France abstained from voting on the ground that the only
real securityguarantee against nuclear blackmail or aggressionlay in nuclear disarmament. India took the same position,and in addition stated
its belief that the Security Council had the responsibilityto guarantee
54
Ibid. at 118-119.
The United States had previously agreed to accept IAEA safeguards upon "all
nuclear activities in the United States-excluding only those with direct national security significance." Department of State, Documents on Disarmament: 1967, at 614615. The United Kingdom subsequently made a similar declaration. The Soviet Union
did not.
56 See note 39 above, at 19, 119.
57 Ibid. at 122-123.
58Ibid. at 123.
59 Ibid. at 125. The Soviet Union, the United Kingdom, and the United States all
supported the resolution; Albania, Cuba, Tanzania and Zambia voted against it.
Brazil, Burma, France, India and Spain were among the 21 countries which abstained.
55
1969]
TREATY ON NON-PROLIFERATION OF NUCLEAR WEAPONS
721
any state against nuclear attack or blackmail,whetheror not the state was
partyto the treaty. The vote in the Council was 10-0, with 5 abstentions.60
The Treaty on the Non-Proliferationof Nuclear Weapons was signed by
over 50 countries,including the United States, the Soviet Union, and the
United Kingdom,on July 1, 1968, at Moscow, Washington,and London.
It will enter into force when instrumentsof ratificationhave been submittedby the United States, the Soviet Union, and the United Kingdom,
plus 40 othergovernments.6'
THE TREATY 62
The key articlesof the treatyare I and 11.63
60
Ibid. at 127-128. AbstainingwereAlgeria,Brazil, France,India, and Pakistan.
61Ibid. at 129.
62 Paragraphs one to three of the preambleexpressthe importanceof preventing
the proliferation
of nuclearweapons. Paragraphsfourand fivestate the need of and
in the safeguardssystemof the InternationalAtomicEnergyAgency. Paraconfidence
graphssix and sevendeclarethe goal of sharingpeacefuluses of nuclearenergyand
nuclearexplosionsforpeacefulpurposes. The need forfurther
progresstowardnuclear
disarmament
is emphasizedin paragraphseight and nine. The last paragraphof the
preamblereaffirms
the principlesof the United Nations Charterregardingthe use of
forcein international
relations:
"Preamble:
"The States concludingthis Treaty,hereinafter
referredto as the 'Parties to the
Treaty';
"Consideringthe devastationthat wouldbe visitedupon all mankindby a nuclear
war and the consequentneed to make everyeffortto avertthe dangerof such a war
and to takemeasuresto safeguardthesecurityof peoples,
"Believing that the proliferationof nuclear weapons would seriouslyenhancethe
dangerof nuclearwar,
"In conformity
with resolutionsof the United Nations General Assemblycalling
forthe conclusionof an agreementon the prevention
of widerdissemination
of nuclear
weapons,
"Undertakingto cooperatein facilitatingthe applicationof InternationalAtomic
EnergyAgencysafeguardson peacefulnuclearactivities,
"Expressing theirsupportfor research,development
and otherefforts
to furtherthe
application,withinthe framework
of the InternationalAtomicEnergy Agency safeguards system,of the prineipleof safeguardingeffectively
the flow of source and
special fissionablematerialsby use of instruments
and other techniquesat certain
strategicpoints.
"Affirming
the principlethat the benefitsof peaceful applicationsof nucleartechnology,includinganytechnological
by-products
whichmaybe derivedby nuclear-weapon
States fromthe development
of nuclearexplosivedevices,shouldbe available forpeaceful purposesto all Parties to the Treaty,whethernuclear-weapon
or non-nuclear-weapon
States,
"Convincedthat,in furtherance
of this principle,all Parties to the Treatyare entitledto participatein the fullestpossibleexchangeof scientific
information
for,and
to contribute
alone or in cooperationwithotherStates to, the furtherdevelopment
of
the applieationsof atomieenergyforpeacefulpurposes,
"Declaring theirintentionto achieveat the earliestpossible date the cessationof
the nucleararms race and to undertakeeffective
measuresin the directionof nuclear
disarmament,
"Urging the cooperationof all States in the attainmentof this objective,
"Recalling the determination
expressedby the Parties to the 1963 Treatybanning
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Article I deals with the obligations of nuclear-weaponstates.64 Such
states undertake"not to transfer" nuclear weapons, or controlover them,
"to any recipientwhatsoever." This prohibitionincludes,of course,transfer by one nuclear-weaponstate to another. Second, nuclear-weaponstates
are obliged to refrainfromaiding non-nuclear-weaponstates in manufacturing or otherwiseobtainingnuclear weapons. Third, these prohibitions
apply to nuclear explosive devices designed and intended for peaceful as
well as weapons purposes. This is necessarydue to the similarityin function and in technologyused in the manufacture of nuclear explosives
whetherfor peaceful or weapons purposes.
The completeprohibitionon transferof nuclear explosives would seem
to preclude transferto internationalorganizationssuch as the IAEA. It
has been suggested65 that the IAEA could fulfillthe injunction of Article
V that the peaceful benefitsof nuclear explosions be made available to
states on a non-discriminatory
basis. While it is likely
non-nuclear-weapon
that the IAEA will have a role in establishinginternationalstandards for
the performanceof such services and could in addition performadministrativefunctionsin this area, the IAEA would seem to be precluded from
nuclear weapon tests in the atmosphere in outer space and under water in its Preamble
to seek to achieve the discontinuance of all test explosions of nuclear weapons for all
time and to continue negotiations to this end,
"Desiring to further the easing of international tension and the strengtheningof
trust between States in order to facilitate the cessation of the manufacture of nuclear
weapons, the liquidation of all their existing stoekpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a treaty
on general and complete disarmament under strict and effectiveinternational control,
"Recalling that, in accordance with the Charter of the United Nations, States must
refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations, and that the establishment and
maintenance of international peace and security are to be promoted with the least diversion for armaments of the world's human and economic resources,
"H ave agreed as follows:"
63 X'ARTICLE I
"Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any
recipient whatsoever nuclear weapons or other nuclear explosive devices or control over
such weapons or explosive devices directly,or indireetly; and not in any way to assist,
encourage, or induce any non-nuclear-weaponState to manufacture or otherwise acquiLre
nuclear weapons or other nuclear explosive devices, or control over such weapons or
explosive devices."
'ARTICLE II
"Each non-nuclear-weaponState Party to the Treaty undertakes not to receive the
transfer from any transferorwhatsoever of nuclear weapons or other nuclear explosive
devices or of control over such weapons or explosive devices directly,or indirectly; not
to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices;
and not to seek or receive any assistance in the manufacture of nuclear weapons or
other niuclearexplosive devices. "1
I are defined as those states which have manufactured
64 "I Nuclear-weapon states"
and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.
65 Note, "I The Nonproliferation Treaty and Peaceful Applications of Nuclear Explosions, "1 20 Stanford Law Rev. 1030, 1035-1037 (1968).
1969]
TREATY ON NON-PROLIFERATION OF NUCLEAR WEAPONS
723
actual possessionof nuclear explosivesinsofaras theywould be transferred
froma nuclear-weaponstate.66
states. Such
Article II deals with the obligationsof non-nuclear-weapon
states are prohibitedfromreceivingthe "transfer" of nuclear weapons or
othernuclear explosivedevices,or controlover them,fromany transferor.
Second,such statesmustnot manufacturenuclear weapons or othernuclear
explosivedevices or receiveany assistance in manufacturingsuch weapons
or devices.
Articles I and II prohibittransfer"or control" over nuclear explosive
devices. The meaning of "control" or "access," the term preferredby
the Soviet Union, was the cause of a five-yeardeadlock beforefinal agreementwas reached betweenthe Soviet Union and the United States, according to Mason Willrich, a formermemberof the United States Delegation
to the ENDC.67 The issue behind the semanticswas the potential role of
West Germanyin NATO. The Soviets were adamant on the question of
no "access" by West Germanyto nuclear weapons, throughMLF or any
other institution. The United States was equally firmregarding NATO
agreement,on planning for
control,unhinderedby any non-proliferation
nuclear defense. United States custody of nuclear weapons and release
arrangementscould not be interpretedto violate any agreementuntil an
actual release had been accomplished. The Soviets finallyagreed to wording permittinga continuationof NATO planning and participationbased
on the status quo. This would require no change in United States or
West German participationin NATO but would preclude the creation of
a Multilateral Force.68
66 A nuclear-weapon
nuclear
state wouldbe prohibitedby Art. I fromtransferring
explosivedevicesto the IAEA, since the language of Art. I, unlikeArt. II, precludes
transfer"to any recipientwhatsoever,"withoutregardfor a status of statehoodor
treatymembership.
67 Willrich,"The Treatyon Non-Proliferation
of Nuclear Weapons: Nuclear TechnologyConfronts
WorldPolitics," 77 Yale Law J. 1447,1465 (1968). See also Willrich,
forNuclearArmsControl(1969).
Non-Proliferation
Treaty: Framework
68 SecretaryRusk,testifying
beforethe Senate Foreign RelationsCommittee:"IThe
treatydeals only with what is prohibited,not with what is permitted. It prohibits
of nuclearweaponsor controloverthem,meaning
transferto any recipientwhatsoever
bombsand warheads. It also prohibitsthe transferof othernuclearexplosivedevices,
because a nuclearexplosivedevice intendedfor peaceful purposescan be used as a
weaponor can be easily adapted for such use. It does not deal with,and therefore
does not prohibit,transferof nucleardeliveryvehiclesor deliverysystems,or control
so long as suchtransferdoes not involvebombsor warheads.
overthemto any recipient,
and planningon nucleardefenseso long as
It does not deal withallied consultations
no transferof nuclearweaponsor controloverthemresults. It does not deal witharof nuclearweaponswithinallied territory
rangements
for deployment
as these do not
involveany transferof nuclearweaponsor controlover themunless and until a decisionweremade to go to war,at whichtimethe treatywouldno longerbe controlling.
And, it does not deal with the problemof European unity,and would not bar successionby a new federatedEuropeanstate to the nuclearstatus of one of its former
components.A new federatedEuropeanstate wouldhave to controlall of its external
securityfunctions,
includingdefenseand all foreignpolicymattersrelatingto external
security,but wouldnot have to be so centralizedas to assumeall governmental
func-
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However,while a Multilateral Force is not permittedunder the treaty,
an interpretationhas been made by the United States, distinguishingbetween "transfer," the key word of Articles I and II, and "succession."
The formeris prohibited,while the latter, which could involve an integrated European state emergingfromseveral now in existence,is not.69
"Nuclear weapons" are definedto include nuclear warheads for missiles,
or nuclear bombs. This term has not been interpretedto include nonnuclear explosive devices which may become part of nuelear explosive devices, such as deliverysystems,or nuclear power reactors in Polaris submarines. The Nassau agreement,wherebythe United States makesavailable
Polaris missiles without warheads to the United Kingdom, is thus not
affectedby the treaty.70
Article III 71 containsthe safeguardsprovisions. Its purpose is to verify
tions. While not dealingwithsuccessionby such a federatedstate, the treatywould
bar transferof nuclearweapons (includingownership)or controlover themto any
recipient,includinga multilateralentity." See Hearings on the Treatyon the Nonproliferation
of NuclearWeapons,note 1 above,at 5-6.
69
Ibid.
71 i ARTICi
70
III
Ibid.
"1. Each non-nuclear-weapon
State Party to the Treatyundertakesto accept safeguards,as set forthin an agreementto be negotiatedand concludedwith the InternationalAtomicEnergyAgencyin accordancewith the Statute of the International
AtomicEnergyAgencyand the Agency'ssafeguardssystem,for the exclusivepurpose
of verification
of the fulfillment
of its obligationsassumedunderthis Treaty with a
viewto preventing
diversionof nuclearenergyfrompeacefuluses to nuclearweapons
or othernuclearexplosivedevices. Proceduresforthesafeguardsrequiredby thisarticle
shall be followedwithrespectto sourceor specialfissionable
materialwhether
it is being
produced,processedor used in any principalnuclearfacilityor is outside any such
facility. The safeguardsrequiredby this article shall be applied on all source or
special fissionablematerialin all peaceful nuclear activitieswithinthe territoryof
suchState, underits jurisdiction,or carriedout underits controlanywhere.
"2. Each State Partyto the Treatyundertakes
not to provide: (a) sourceor special
fissionablematerial,or (b) equipmentor materialespeciallydesignedor preparedfor
the processing,use or productionof special fissionablematerial,to any non-nuclearweapon State for peacefulpurposes,unless the source or special fissionablematerial
shall be subject to the safeguardsrequiredby this article.
"3. The safeguardsrequiredby this article shall be implemented
in a mannerdesignedto complywithArticleIV of this Treaty,and to avoid hamperingthe economic
or technological
of the Parties or international
development
cooperationin the fieldof
peacefulnuclearactivities,includingthe international
exchangeof nuclearmaterialand
equipmentfor the processing,use or productionof nuclearmaterialfor peacefulpurposes in accordancewiththe provisionsof this articleand the principleof safeguarding set forthin thePreambleof the Treaty.
"4. Non-nuclear-weapon
States Party to the Treaty shall concludeagreementswith
the InternationalAtomic Energy Agency to meet the requirements
of this article
eitherindividuallyor togetherwithotherStates in accordancewiththe Statute of the
InternationalAtomicEnergyAgency. Negotiationof such agreements
shall commence
within180 days fromthe originalentryinto force of this Treaty. For States deof ratifieation
positingtheirinstruments
or accessionafterthe 180-dayperiod,negotiation of such agreements
shall commence
not later than the date of such deposit. Such
agreementsshall enterinto force not later than eighteenmonthsafter the date of
initiationof negotiations."
1969]
TREATY
ON NON-PROLIFERATION
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WEAPONS
725
compliancewith treatyprovisionsthat nuclear materialsused for peaceful
statesnot be divertedto nuclear weaponry.
purposesby non-nuclear-weapon
Non-nuclear-weaponstates agree to accept safeguards upon source or
special fissionablematerial "in all peaceful nuclear activities,within the
territory"of the state, "under its jurisdiction,or carried out under its
controlanywhere." These safeguardsare applied for the sole purpose of
verification
of compliancewithtreatyobligations. The safeguardsare to be
set forthin agreementsto be "negotiated and concluded" with the IAEA
in accordance with its Statute and safeguards system.
Paragraph two of ArticleIII prohibitsthe parties fromprovidingsource
or special fissionablematerial,or equipmentor materialfor processing,use
or production of special fissionablematerial to any non-nuclear-weapon
state for peaceful purposes,unless subject to safeguards.
Paragraph three of Article III insures that safeguards will not unduly
hamperthe peaceful developmentof nuclear power by non-nuclear-weapon
states in accordancewith Article IV.
Paragraph four prescribesthe manner in which safeguards agreements
are to be concluded. Non-nuclear-weaponstates may conclude such agreementsindividuallyor multilaterally(i.e., Euratom) in accordancewiththe
Statute of the IAEA. Negotiationson agreementsare to commencewithin
180 days after the treaty's entry into force and be concluded within 18
monthsafterthe initiationof negotiations.
The safeguardssystemof the treatyis not designedto insure compliance
with the provisionsof Articles I and II relating to non-transferand reception of nuclear weapons.72 Nor will it detect a clandestine weapons
production system apart from non-nuclear-weaponstates' programs of
peaceful uses of nuclear energy. Further, the safeguards systemis not
applicable by treatyprovisionto peaceful nuclear activitywithinnuclearweapon states. What the safeguards are designed to accomplish is the
verificationof compliance with treaty prohibitionsagainst diversion of
fissionablematerial from peaceful nuclear programs to nuclear weapons
programsor othernuclear explosivesprogramswithinnon-nuclear-weapon
states.
Thoughlimitationsexist regardingthe scope of the safeguardsprovisions
of the treaty,they will still have profound effectupon the non-nuclearweapon states. Since safeguards are applied "on all source or special
fissionablematerialin all peaceful nuclear activities" withinthe territory
or under the jurisdictionor controlof such states,the entirepeaceful nustates will be covered.
clear industryof the non-nuclear-weapon
states were
Throughoutthe negotiatingperiod many non-nuclear-weapon
critical of the proposed safeguards provisions as being discriminatory,
since only the non-nuclear-weaponstates were to be affectedby the safeguards provisions. Sweden, Canada, Rumania, Brazil, India, the Federal
Republic of Germanyand Spain made especial objectionsupon this point.73
While Article III does not require the application of safeguards to the
72 See
Willrich,77 Yale Law J., note67 above,at 1447-1480.
above,at 101.
73 International
note9
Negotiations,
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peaceful nuclear activitiesof nuclear-weaponstates, on December 2, 1967,
President Johnsonannounced that the United States would accept IAEA
safeguards upon "all nuclear activities in the United States-excluding
only thosewith directnational securitysignificance."74 The United Kingdom announcedtwo days later that it would do the same.75 The U.S.S.R.
has made no similar commitment.
With the voluntaryplacement of the peaceful nuclear industryof the
United States and the United Kingdom under the IAEA safeguards system,togetherwith the application of that systemto the peaceful nuclear
industriesof all non-nuclear-weapon
states parties to the treaty,a giant
step will have been taken toward the creation of a body of international
law governingthe conduct of the world peaceful nuclear industry. This
must be recognizedas a major beneficialresult of the treaty. One major
purpose in United States sponsorshipof the IAEA at its beginningwas
to effectthis very purpose.76 In large measure,the safeguards systemof
the IAEA was based upon the safeguards provisionsof United States bilateral agreementswith states receivingour aid in developingtheir peaceful nuclear industries.77 Now this goal of world-widerecognitionand
application of standardized internationalregulationsto the peaceful nuclear industries of the world is within reach. That this is absolutely
essentialif nuclear anarchyis to be avoided is seen fromthe fact that total
nuclear generatingcapacity by 1980 is estimatedto be 300,000 megawatts.
As of 1967, only 65 reactorsin 29 countrieshaving a total thermalcapacity
of 3,200 megawatts,had safeguardsagreementsapproved by the Board of
Governorsof the IAEA.78 This representedless than 8%o of the thermal
capacity of civilian reactorsthen operating.
The IAEA safeguardssystem79 includesan intricatesystemof accounting
and inventoryreportingby the recipientstate to the IAEA, coupled with
IAEA access to specifiedlocations where nuclear facilities exist to permit
physical verificationof the reports.80 The frequencyof inspectionsis determinedby the potential military significanceof the facility. If the
reactoris capable of producingmorethan 60 kilogramsof plutoniumper
year it is open to inspectionby the Agency withoutadvance notice.81 The
IAEA safeguards system includes a review of the design facility, disclosure of accountingrecords,a systemof reportsto the Agency,physical
74Department
of State, Documentson Disarmament:1967, at 614-615; for a commenton this matter,see Hearingson the Treatyon the Nonproliferation
of Nuclear
Weapons,note 1 above,at 11.
75 Department
of State,Documentson Disarmament:1967,at 616.
76 See Firmage,note 11 above,at 152-154.
77 Ibid.
78 Statement
by theDirector-General,
IAEA, Sept. 26, 1967,to theGeneralConference.
79For the SafeguardsDocument,see IAEA, GC(IX)/294 (1965). For an analysis
of the backgroundand contentof both the IAEA and United States safeguardssystems,see the statementof Dr. Glenn T. Seaborg, Chairmanof the Atomic Energy
in theHearingson the Treatyon theNonproliferation
Commission,
of NuclearWeapons,
note 1 above, at 97, 99-105. See also "Analysis of IAEA Safeguards System,"
ibid. at 277.
80Ibid.
81IAEA, GC(IX)/294 (1965), Annex,par. 57.
1969]
TREATY
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727
inspectionfor verification,provisionfor numbersof physical inspections,
and seals upon the core of the reactor to detect diversion.
The relationshipbetweenthe IAEA and Euratom caused some delay in
negotiationand debate betweenthe United States, the Soviet Union, and
the four Common Market countries participating in the negotiations.82
The United States has always favoreda single systemof safeguards. However,the CommonMarketcountriesfearedthat the eliminationof Euratom
with its similar safeguardssystemwould do damage to eventual European
integration. The Soviets viewed Euratom inspection as self-inspection
for the CommonMarket countries. The issue was resolved by allowing
memberstates of Euratom to utilize the option in Article III providing
for agreementto be made with IAEA "together with other States in
accordance with the Statute" of the IAEA. The Statute provides for
"relationship agreements" between the IAEA and organizationssuch as
Euratom which provide the same servicesregardingsafeguards provisions
as the IAEA. However,to meetthe Soviet objections,provisionwas made
in Article III that any agreementbetweena state or groups of states must
allow the IAEA in effectto monitorthe Euratom safeguards,which must
also be in harmonywith the IAEA Statute and safeguards system. The
IAEA-Euratom relationship,while yet to be worked out in detail, was
describedby the United States at the ENDC:
In order to avoid unnecessaryduplication,the IAEA should make
appropriate use of existing records and safeguards, provided that
undersuch mutually-agreedarrangementsIAEA can satisfyitselfthat
nuclear material is not divertedto nuclear weapons or other nuclear
explosive devices.83
Article IV 84 insures that nothingin the treaty shall be interpretedas
affectingthe right of all parties to use nuclear energy for peaceful pur82 See analysisabove, at p. 717. See also the remarksof William Foster,Director,
U. S. Arms Controland DisarmamentAgencyand our representative
at ENDC, in
InternationalNegotiation,note 9 above,at 70-73, 81-82, 101-103.
83 Statement
of ACDA DeputyDirector,AdrianFisher,Jan. 18, 1968,ENDC/PV.357,
at 14, 17. See also Mr. Fisher's testimony,
Hearings on the Arms Controland DisarmamentAct Amendments,
note 4 above, at 61-62. In addition,see "AEC Comparisonof Euratomsafeguardsystemand the IAEA System,"Hearingson the Treaty
on the Nonproliferation
of NuclearWeapons,note 1 above,at 266.
84 " 1 ARTICLEIV:
"1. Nothingin this Treaty shall be interpretedas affectingthe inalienableright
of all thePartiesto theTreatyto developresearch,
and use of nuclearenergy
production
for peacefulpurposeswithoutdiscrimination
and in conformity
with ArticlesI and
II of this Treaty.
"2. All the Parties to the Treatyundertaketo facilitate,and have the rightto participate in, the fullestpossible exchangeof equipment,materialsand scientificand
technologicalinformationfor the peaceful uses of nuclear energy. Parties to the
Treaty in a positionto do so shall also cooperatein contributing
alone or together
with other States or internationalorganizationsto the furtherdevelopmentof the
applicationsof nuclear energyfor peaceful purposesespeciallyin the territoriesof
States Party to the Treaty,with due considerationfor the needs
non-nuclear-weapon
of the developingareas of the world."
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poses, withinthe limitationsof Articles I and II. Nuclear-weaponstates
are encouragedto aid the developmentof peaceful applications of nuclear
states parties to the treaty,with "due
energywithinnon-nuclear-weapon
consideration"for the needs of developingareas.
In previous draftsthe hortatorylanguage of Article IV was in the preamble. This article is too general to impose specific duties upon the
nuclear-weaponstates. During the ENDC discussions on the draft of
August 24, 1967,Mexico,along withthe United Arab Republic and Sweden,
favored a provisionin the treaty imposing a "duty" upon the nuclearweapon states to aid non-nuclearweapon states in the developmentof
peaceful applications of nuclear energy.85 Canada and the United Kingdom argued that the term"duty" was too broad and could be interpreted
to mean that a nuclear-weaponstate would be forced to respond to any
request by any non-nuclear-weaponstate.86 The new Article IV which
appeared in the January 18, 1968, draft representeda degree of compromise,as the language remainedhortatory,but was made slightlymore concreteand was movedfromthe preambleto the body of the treaty.87
Article V 88 provides that the benefitsof peaceful nuclear explosive debasis and at the lowest
vices be made available on a non-discriminatory
Departmentof State,Documentson Disarmament:1967,at 394-395.
InternationalNegotiations,
note9 above,at 83.
87 For a shortdescription
of presentand possible futurepeaceful uses of nuclear
energyand nuclearexplosions,see the speechby formerSecretaryof State Dean Rusk,
FordhamUniversityClub of Washington,D. C., May 2, 1968, "Gaining the Full
Measure of the Benefitsof the Atom," reprintedin 58 Dept. of State Bulletin 632
(1968).
There has not been the development
of peacefuluses of nuclearenergywithinthe
underdeveloped
areas that suchnationsexpectedafterPresidentEisenhower's"Atoms
forPeace" speech. The soundconceptof peacefulapplicationsof nuclearenergywas
oversoldto the extentthat developingnationsthoughtthat theycould be broughtinto
the industrial20th centurywithoutgoing throughthe stages of industrialization
that
Westernnationshave experienced. The realizationthat a significantindustrialbase
mustfirstbe had beforemeaningfuluses of atomicenergycould be enjoyedhas produced understandable
disillusionand hostility. However,genuineattemptsto aid the
developingnations in their applicationof nuclear energyfor peaceful purposes are
being made. From 1958 to 1963 the ratio of researchcontractfundsgrantedby the
IAEA to institutesin developingcountriesrose from23% to 65%. In 1966, 75%oof
all researchcontractfunds of the Agencywere awarded for researchin developing
countries.IAEA, GC(XI)/362 (1967) AnnexB, par. 19.
85
86
88 " ARTICLE V
"Each Party to the Treatyundertakesto take appropriatemeasuresto ensurethat,
in accordancewiththisTreaty,underappropriateinternational
observation
and through
appropriateinternational
procedures,
potentialbenefitsfromany peacefulapplications
of nuclear explosionswill be made available to non-nuclear-weapon
States Party to
the Treatyon a non-discriminatory
basis and that the chargeto such Parties for the
explosivedevicesused will be as low as possible and excludeany chargefor research
and development.Non-nuclear-weapon
States Party to the Treaty shall be able to
obtain such benefits,pursuantto a special internationalagreementor agreements,
throughan appropriateinternational
body withadequaterepresentation
of non-nuclearweaponStates. Negotiationson this subject shall commenceas soon as possible after
the Treaty enters into force. Non-nuclear-weapon
States Party to the Treaty so
desiringmayalso obtainsuchbenefits
pursuantto bilateralagreements."
1969]
TREATY ON NON-PROLIFERATION OF NUCLEAR WEAPONS
729
possiblecost,withoutchargefor researchand development,to non-nuclearweapon states parties to the treaty. Non-nuclear-weaponstates are precluded by Article II from receiving or manufacturingnuclear explosive
devicesfor peaceful as well as for weapons purposes. Article V is a necessary consequenceof that denial, makingavailable to the non-nuclear-weapon
states parties to the treaty the benefitof nuclear explosions for peaceful
purposes. Explosions are to take place under appropriate international
observation. Non-nuclear-weaponstates can obtain such servicespursuant
to internationalagreement,through an internationalorganization or by
bilateralagreementwith a nuclear-weaponstate.
Like Article IV, the general purpose of Article V was expressed in the
preamblein early draftsof the treatybut found its way into the body at
states.
the insistenceof non-nuclear-weapon
The United States proposed in 1966 that the nuclear-weapon states
performpeaceful nuclear explosive services for the non-nuclear-weapon
states.89 The prohibitionin Article II on reception,manufactureor use
of nuclear explosive devices for peaceful as well as weapons purposes was
considerednecessarydue to the similarityin technologyemployedin the
manufactureof nuclear explosives for either purpose. Immediate oppositionto this prohibitionquite understandablyarose, however,on the part
of several non-nuclear-weaponstates, including India,90 Germany,9'and
the United Arab Republic.2
The United States and the Soviet Union had originallyfavoredan agreementseparate fromthe treatyto work out problemsof nuclear explosions
forpeacefulpurposes.93 The only referencein the August 24, 1967, draft94
to insuringthat the benefitsof peaceful nuclear explosive devices be made
available to non-nuclear-weaponstates was in the preamble. Though
Brazil and India registeredstrong oppositionto any prohibitionsagainst
the possessionand use of nuclear explosivedevices for peaceful purposes,95
the Co-Chairmenof the ENDC, the United States96 and the Soviet Union,97
maintainedthat such a prohibitionmust exist if the treatywere effectively
to prohibitthe spread of nuclear weapons. While most delegates agreed
withthe Co-Chairmen,therewas strongfeelingthat thereshould be treaty
specificationof means of sharing the benefitsof devices for peaceful nuclear explosions. Mexico98 and Nigeria 99 made specificproposals for such
a provision.
The revised draft treatyof January 18, 1968,1?0reflectedthe criticism
of ENDC membersin that a new Article V broughtinto the body of the
89InternationalNegotiations,
note9 above,at 63.
91 Ibid. at 63-65.
92 Ibid. at 67.
93Departmentof State,Documentson Disarmament:1967, at 172-176.
94Ibid. at 338-341.
95 Ibid. at 369-370,546-547,436-437.
96 See statement
of ACDA DirectorFoster,ENDC/PV.330,p. 5.
97Department of State,Documentson Disarmament:1967,Statementof Ambassador
518.
Roshchin,
98 Ibid. at 395-401.
99Ibid.at 557-558.
100See International
Negotiations,note 9 above, at 150.
90 Ibid. at 58.
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treatylanguage which had previouslybeen in the preamble. Each party
was obligatedto co-operatein insuringthat potentialbenefitsfrompeaceful nuclear explosive devices be made available to non-nuclear-weapon
parties on a non-discriminatory
basis withoutexpense for the cost of research and development.'0'
The drafttreatyof January,1968, permittedbilateral arrangementsfor
the accomplishmentof peaceful nuclear explosiveservicesdirectlybetween
non-nuclear-weapon
and nuclear-weaponstates,as well as permittingmultilateral arrangements. Several states opposed this permissionof bilateral
arrangementsforsuch serviceson the groundsthat clandestineand perhaps
discriminatoryagreementscould be made if all nuclear explosive services
were not subject to internationalcontrol. Canada,'02 Sweden 103 and the
U.A.R.104 were in agreementwith this objection. The United States and
the Soviet Union refusedto considerthe eliminationof any provisionfor
bilateral arrangements. However,ArticleV was revisedin the drafttreaty
of May 31, 1968,105to incorporatea Mexican proposal that precedencein
placementof wordingbe given to multilateralarrangementsfor peaceful
applications for nuclear explosions,as opposed to bilateral arrangements,
which was grudginglyaccepted by several smaller Powers which satisfied
theirfrustrationat being unable to eliminatethe bilateral option by placing it last in wording.'06 Non-nuclear-weaponstates favoringexclusively
multilateralarrangementsfor the acquisition of nuclear explosive services
have the assurance in the treatythat such benefitswill be made available,
101 The U. S. negotiatingteam was motivatedby an understandable
desireto avoid
any specificand open-endedcommitment
to providenuclear explosiveservicesupon
demandand the technologicalnecessityof forbiddingany nuclearexplosivedevice to
non-nuelear-weapon
states. The positionof such states as India and Brazil against
any provisionprohibiting
peacefulnuclearexplosivedevicesis equally understandable.
Both states continuallymaintainedthat such a provisionwould rendernon-nuelearweaponstatesperpetuallydependentupon nuclear-weapon
statesfor the performance
of
nuclearexplosionsfor peacefulpurposes. The extentof this dilemmacan be seen by
comparingthe statements
made by the representatives
of Brazil and India, whichcontinuedunchangedby the decisionto make provisionfor such servicesa part of the
treaty(see InternationalNegotiations,note 9 above,at 104), withthe followingstatementfromtheSenateForeignRelationsCommittee
Reportrecommending
Senateconsent
to ratification:
"The committee
wishesto recordits concernat the open endedcommitment
implied
in ArticleV. We suggestthat obligationsunderthis provisionshouldbe undertaken
withappropriatecongressional
onlyafterthefullestconsultation
committees
and should
be limitedto projects withinthe capacity of the United States consistentwith its
interests. Moreover,the committeespecificallyreject any suggestionthat article V
constitutesan across-the-board
pledge by the United States to supportforeignand
domesticcommercialresearchand development
projects. As in the case of nuclear
servicesprojects,researchand development
projects shouldbe undertakenonly after
the public interesthas been carefullydefinedby the appropriatecongressionalcomof Nuclear Weapons.,Senate Rep. No. 9,
mittees." Treatyon the Non-Proliferation
90thCong.,2d Sess. 14 (1968).
102 ENDC/PV.358,at 19-20.
o10ENDO/PV.364,at 5-7.
104 ENDC/PV.367,at 12.
105 See International
Negotiations,
note 9 above,at 120, 122.
106 Ibid. at 123-124.
1969]
TREATY
ON NON-PROLIFERATION
OF NUCLEAR
WEAPONS
731
whetherby bilateral agreementwith a nuclear-weaponstate or by agreementwith an internationalorganization,"under appropriateinternational
observationand throughappropriateinternationalprocedures." 107
While opinions vary on the extent of sacrificemade by non-nuclearweapon states in agreeing to forgo the developmentof nuclear explosive
devices for peaceful purposes,108as new uses for nuclear explosions are
discoveredand techniquesare improvedon presentuses with a consequent
loweringof costs,more nations will feel the pressure for the full realization of such benefits. Article V must workwell or this source of pressure
could lead to the eventual breakdownof the treaty. As has been noted,
Brazil was one of several countriesstronglyopposing the provisions of
Article II (and hence the necessityof Article V) prohibitingnon-nuclearweapon countriesfrom possessing nuclear explosive devices for peaceful
purposes. Brazil has shown considerableinterestin linking the Amazon
and the Rio de la Plata by use of nuclear explosives.109Brazil was largely
responsiblefor the inclusionof a provisionin the Latin AmericanNuclear
Free Zone (LANFZ) Treaty11Opermittingparties to carry out explosions
of nuclear devices for peaceful purposes."'1
107 See note 88 above. The general outlinesof U. S. planningfor providingsuch
serviceswerepresentedby Dr. GlennT. Seaborg,Chairmanof the AtomicEnergyCommission,beforethe Senate ForeignRelationsCommittee:
"When particularapplicationsare foundto be feasible,we plan to make a nuclear
explosionserviceavailable on a commercial
basis to domesticusers and to nonnuclear
weapon parties to the NPT. Such a servicewould include the fabricationof the
nuclearexplosivedevice,its transportation
fromthe assemblyplant to the projectsite,
its emplacement
at the preparedsite, and its armingand firing. The servicewould
also includeappropriatetechnicalreviewsof the proposeddetonation,such as those
relatingto healthand safety. The users of the service,whetherit is furnisheddomesticallyor pursuantto articleV, will pay for the servicein accordancewith rates
establishedfor its variouselements.. . . the chargesfor the nuclearexplosivedevices
used in furnishingthe servicewill not include the cost of their researchand development.
II....
The objectivesof the treatycould not permitany observationcontemplated
by the treatyto includeaccess by the observersto the designor internaloperationof
nuclearexplosivedevices. Consequently,
therewill be no transferof nuclearexplosive
devicesor controlover them; nor will the service,in any way, assist, encourage,or
induce any nonnuclearweapon state to manufactureor to otherwiseacquire nuclear
explosivedevices." IIHearings on the Treaty on the Nonproliferation
of Nuclear
Weapons,note1 above,at 104.
108 Speechby Under Secretaryof State NicholasKatzenbach,note 5 above: "Even
an optimisticassessmentof its potentialuses wouldnot justifythe enormousexpenditure of time,moneyand scientific
and technicaltalentrequiredto developnucleardevicesforthispurposealone."
's developingnuclearexHe later spoke of the " economicabsurdityof a country
plosivessolelyforpeacefulpurposes...."
10?Koop, "Plowshare and theNonproliferation
Treaty," 12 Orbis 793, 809 (1968).
110
See note 23 above.
"' Art. 18 of LANFZ states that: "Contractingparties may carryout explosions
of nuclear devices for peaceful purposes-includingexplosionswhichinvolve devices
similarto those used in nuclear weapons-or collaboratewith third parties for the
samepurpose."
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Many other states, including Japan, Australia, and Canada, have expressed deep interestin this use of nuclear energy. While oil and gas
recoveryis probably the most realistic short-termprospect for peaceful
uses of nuclear explosions,many other possibilitiesare now being tested
by the United States Plowshare program."12 From the use of nuclear explosives in the constructionof a sea-level Atlantic-Pacificcanal replacing
the Panama Canal 113 to the use of nuclear explosionsto break copper ore
bodies to permitdirect recoveryof copper,114nations will continueto explore the peaceful uses of nuclear explosions. Nuclear-weaponstates, and
whateverinternationalbody (presumablythe IAEA) is utilized to perform
functionsunder ArticleV, have the responsibilityto see that its provisions
are fairly and adequately met if for no other reason than the likelihood
that the failure to do so could lead to the ultimatefailure of the treaty.
The single most importantprovision of the treaty,however,from the
standpointof long-termsuccess or failure of its goal of proliferationprevention,is Article VI.115 While the basic prophylacticprovisionsare in
Articles I and II, the credibilityand integrityof those provisions will,
in time,be no better than the performanceof the nuclear-weaponstates
under the provisionsof ArticleVI.
ArticleVI obliges all parties to undertakenegotiationsto seek the cessation of the nuclear arms race and accomplishnuclear disarmament.
The compellingneed for compliance with this provision is based first
of all upon its pre-eminentstatus as a prerequisiteto world peace. Whatever the validity in the past of the argumentthat weapons are a manifestationratherthan a cause of war, that positionholds little weightin an
age of weapons of total destruction. JohnF. Kennedy recognizedthis fact.
Men no longerdebate whetherarmamentsare a symptomor a cause
of tension. The mere existenceof modernweapons-ten milliontimes
more destructivethan anythingthe world has ever known,and only
minutesaway fromany targeton earthl-is a source of horror,of discord, and distrust. Men no longer maintain that disarmamentmust
112 For analysesof Project Plowshare,see Hearing on the Peaceful Applicationof
Nuclear Explosives-PlowshareBefore the Joint Committeeon AtomicEnergy,89th
Cong.,1st Sess. (1965); Inglis and Sandler,A Special Reporton Plowshare,Prospects
Uses of Nuclear Explosives,Bulletin of AtomicSciand Problems: The Nonmilitary
entists46-53 (Dec., 1967); Koop, note 109 above; Van Cleave, "The Nonproliferation Treatyand Fission-FreeExplosiveResearch," 11 Orbis 1055 (1968); Note, "The
Nonproliferation
Treaty and Peaceful Applicationsof Nuclear Explosions," note 65
above.
113 This would necessitatean amendment
to the Partial Nuclear Test Ban Treaty.
Dr. Seaborg statedthatprovisionsof the Partial Nuclear Test Ban Treatywouldpermit excavation-type
projectsbut trans-isthmian
canal projectswouldnecessitatetreaty
amendment.See note 107 above,at 105.
114 Koop, note109 above,at 801.
115
"ARTITcLE
VI
"Each of the Parties to the Treatyundertakesto pursuenegotiationsin good faith
on effective
measuresrelatingto cessationof the nucleararms race at an early date
and to nuclear disarmament,
and on a treatyon general and completedisarmament
understrictand effective
international
control."
1969]
TREATY
ON NON-PROLIFERATION
OF NUCLEAR
WEAPONS
733
await the settlementof all disputes-for disarmamentmust be a part
of any permanentsettlement.116
Second, the economicburden of armamentsis increasingat a time when
the domesticeconomicneeds of nations are becomingincreasinglyacute.
Global expendituresfor militarypurposes rose from$132 billion in 1964,
$138 billion in 1965, and $159 billion in 1966, to $182 billion in 1967.117
This is 40%o more than world-wideexpendituresby governmentson education,'18 and three times the world expenditureson public health.119 It
is estimatedthat since the turn of the centurymore than $4,000 billion
have been spent on wars and militaryexpenditures. If the currentlevel
of militaryspendingcontinues,this will double in 20 years. If the rate of
increase continues,it will double in ten years.120
Military expendituresare increasing in relative as well as in absolute
terms. Such expendituresare increasing faster than the gross national
products of the world,121 and are growing significantlyfaster than the
population. Since 1964 the world has experienceda 7% increase in population and a 38% rise in militaryexpenditures.122
The third and most immediatelyrelevantnecessityfor compliancewith
Article VI, in termsof the treaty,would be the pressuresupon, and consequentlythe reactionsof, the non-nuclear-weapon
party states. The nuclear-weapon states cannot ask of the non-nuclear-weaponstates their
eternal forebearancefrom the acquisition of nuclear weapons while the
formermaintaintheirpositionof immensepower over the latter by reason
of such weapons. The treatywill have continuedadherenceonly if negotiations bring meaningfulagreementsto end the nuclear arms race and
some movementtoward nuelear disarmament.123
The fact that Article VI has its place in the treatyis a testamentto the
tenacityof the non-nuclear-weapon
states in demandingsome formof quid
pro quo fortheirrenunciationof the acquisitionof nuclear weapons. Prior
to the draft of August 24, 1967, India, Brazil, the Scandinavian countries,
Canada, the U.A.R. and Germanybroughtstrongpressureto bear upon the
Co-Chairmento obtain some statementwithinthe treatyregardingnuclear
disarmament.124The United States and the Soviet Union resisted with
equal tenacitythe attemptsto link the treatyto otheraspects of arms control. The Co-Chairmenstated the positionsof their states,based on years
of unproductivedisarmamentnegotiationsupon package proposals which
included the concept of "complete" disarmament,that the present draft
116Public Papers of the Presidents of the United States- John F. Kennedy, 196162, Address Before the United Nations General Assembly, Sept. 25, 1961, at 620.
117 United States Arms Control and Disarmament Agency, World Military Expenditures, Research Report 68-52, at 1 (1968).
118 Ibid.
119Ibid. at 2.
120 Ibid.
121 Ibid.
122 Ibid.
123 See the statements of Lord Chalfont of the United Kingdom and General Burns
of Canada at the ENDC, ENDC/PV, 299, at 7-8, 16.
124 International Negotiations, note 9 above, at 74-75.
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representedthe extent of possible agreementat that time and should not
be delayed pending agreementupon othermatters.'25 The threeaspects of
nuclear disarmamentmentioned most often by the non-nuclear-weapon
states were an agreementending the productionof fissionablematerials (in
nuclear parlance, the " cut-off"),a comprehensivetest ban agreement,and
an agreementhaltingthe productionof deliverysystems.126
The draft of August 24, 1967, representeda moderate advance for the
cause of the non-nuclear-weaponstates in that its preamble called for the
achievementof a "cessation of the nuclear arms race" at the "earliest
possible date."127 But most ENDC membersthought that this concept
should be made more specificand be lodged in the body of the treaty.
Brazil called the August draft"one-sided and discriminatory"for its great
demands upon non-nuclear-weaponstates and minimal demands upon nuclear-weaponstates.28 Mexico proposed an amendmentin the form of a
draft treaty article stating that nuclear-weaponstates agreed to "pursue
negotiationsin good faith" toward agreementson a comprehensivetest
ban, the cessationof the manufactureof nuclear weapons, the elimination
of existingstockpiles,and the eliminationof existingnuclear weapons and
deliverysystems.'29The U.A.R., Canada and Sweden supportedthisamendment. Rumania proposed a similar amendment.'80
The draftof January 18, 1968, representedanotheradvance for the nonnuclear-weaponstates. New Articles VI and VII were added to the body
of the treaty,with the general language being taken from the preamble,
made more specificand added to the treaty as separate articles. Article
VI obliges the parties to "pursue negotiationsin good faith" toward an
agreementendingthe nuclear arms race and the accomplishment
of a treaty
on i'general and completedisarmament."131 This article was based upon
the Mexican amendmentbut deleted the specific topics of disarmament
called for in that amendment. Mrs. Myrdal of Sweden proposed that
Article VI be amended to include "at an early date" in referenceto
futuredisarmamentnegotiations,that the word "nuclear" be added before
"disarmament" and that a referenceto the comprehensivetest ban be included in the preamble. The United Kingdom,Sweden,Mexico,the U.A.R.,
Nigeria, Bulgaria and Canada supported this proposal as amended by the
United Kingdom.'32 This was acceptedby the United States and the Soviet
Union 133 and became part of the joint draft treatyof March 11, 1968.134
As the United States and the Soviet Union make policy decisionsregarding the implementationof ArticleVI, serious considerationshould be given
125
Ibid.
126
Ibid.at 75-76,106.
See the identicaldraftsof the United States and the Soviet Union, ENDC/192
and ENDO/193. International
note9 above,at 146. See also 62 A.J.I.L.
Negotiations,
308 (1968).
128 International
Negotiations,
note9 above,at 86.
129Departmentof State, Documentson Disarmament:1967, at 395-401.
130 17 Congressional
Quarterly303 (Feb. 28, 1969).
131 International
Negotiations,
note 9 above,at 150, 153.
132 Ibid. at 106.
133 Ibid. at 107.
134 Ibid. at 155-158.
127
1969]
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WEAPONS
735
to that topic which generatedthe most heated exchangesbetweenthe CoChairmenof the ENDC and three of its most outspokenmembers,Brazil,
India, and Rumania. These exchanges occurred over the long-standing
issue of the failure of the drafttreatyto halt so-called "vertical proliferation," the growthof fissionablematerialsstockpilesof the nuclear-weapon
states. The United States and the Soviet Union warned that any attempt
specificallyto link the issue of a cut-offof fissionableproductionto the
Non-ProliferationTreaty would indefinitelydelay the latter. India and
the other states restated their position that the treaty would break down
withoutmovementtoward a cut-off.The positionof both sides is rational
and not incompatibleas long as immediateprogressis now made toward
the implementation
of ArticleVI.
Serious movementby the Soviets and the United States toward the implementationof the purpose of Article VI, even prior to the ratification
of the treatyby enough states to bring it into effect,will probably be of
critical effectupon the decisions of key states such as India, Japan and
Germanyon the questionof ratification.
The Soviet Union and the United States mustrealize that the non-nuclearweapon states cannotbe placated by anythingsimilarto the partially ceremonial "firststeps" of the past, denuclearizingAntarctica,the atmosphere,
outer space and under sea, while "vertical" proliferationgoes unchecked
and basic political agreementsconcerningcentralEurope, the U.S.S.R. and
the United States are delayed. The messages to the ENDC from President Nixon and Soviet Premier Kosygin, March 18, 1969, regarding an
agreementbarring nuclear and other weapons of mass destructionfrom
the seabed, while of some substance,cannot be taken as a meaningfulcontributionto the fulfillment
of Article VI. At some point "first steps" of
peripheralimportancemustlead to agreementsof substance. If not, they
are potentiallymore damaging than helpful in that they give the illusion
of progressand allay pressureswhich mightotherwiselead to real accomplishment. The place to begin now mightwell be the negotiationof an
agreementon the cut-off
of fissionablematerialsproductionand the eventual
reductionof existingstockpiles.
Anothersubstantialcontributionto the fulfillmentof Article VI would
be an agreement between the Soviet Union and the United States to
prohibitthe deploymentof anti-ballisticmissile systems. Questions were
raised by Senators Gore, Fulbright and Cooper in hearings before the
Senate Foreign Relations Committeeon the proposed United States ABM
systemas to whethersuch a system"violated the spirit" of Article VI.185
The contrarymay very well be true. It is reportedthat President Nixon
has assured Ambassador Dobrynin that the United States is willing to
negotiateon an ABM limitationwhich could be effectivewell before any
hardware could be placed in Montana or North Dakota.138 If the option
of negotiatingout of the deploymentof ABM systemsby the Soviet Union
135
138
17 Congressional
Quarterly(No. 9) at 303 (Feb. 28, 1969).
JamesReston,New York Times,p. 40 M, cols. 5-8 (March 19, 1969).
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and the United States was a serious motivationbehind the recent decision
to deploysuch a system,the United States mightwell be proceedingtoward
the implementationof Article VI by the most productiveform of negotiations.
Though many mightconsiderthe decisionto proceed toward deployment
of an ABM systemas an obstacle to negotiationwith the Soviet Union, in
the opinionof thiswriterthe oppositeconclusionis morelikelyto be correct.
This is not to say that the actual deploymentof such a systemis militarily
or politicallywise or unwise,workableor unworkable. But as a process of
negotiationit mightbe essential.
Sir William Hayter, formerlyBritish Ambassador to the Soviet Union,
describedthe processof negotiationwith the Soviets:
Negotiationwith the Russians does occur, fromtime to time,but it
requiresno particularskill. The Russians are not to be persuaded by
eloquence or convincedby reasoned arguments. They rely on what
Stalin used to call the proper basis of internationalpolicy, the calculation of forces. So no case, howeverskillfullydeployed, however
clearly demonstratedas irrefutable, will move them from doing
what they have previouslydecided to do; the only way of changing
their purpose is to demonstratethat they have no advantageous
alternative... 137
The Soviets, when faced with the visible and physical evidence that we
intend to proceed with the developmentand deploymentof an ABM system, may well be more amenable to negotiationthan if we were to make
it known that we had made a unilateral decision to avoid such a system.
The notion that our decisionwill be taken as an unfriendlyact with their
consequentrefusal to bargain is contraryto past experience.138The environmentfor negotiatingwith the Soviet Union will be set when both
sides are convincedthat neitherhas anythingto gain by the deployment
of such a system,because both will possess them, thus serving only to
As quoted in Acheson, Sketches From Life of Men I Have Known 105 (1961).
"Historically, the foreign affairs of Russia have developed along lines entirely
differentfrom those of the United States. Our most important foreign relations, historically speaking, have been along the lines of peaceable overseas trade. These have
set the pattern of our thinking on foreign affairs. The Russians, throughout their
history, have dealt principally with fierce hostile neighbors. Lacking natural geographical barriers, they have had to develop, in order to deal with these neighbors, a
peculiar technique (now become traditional and almost automatic) of elastic advance
and retreat, of defense in depth, of secretiveness,of wariness, of deceit. Their history
has known many armistices between hostile forces; but it has never known an example
of the permanent peaceful coexistence of two neighboring states with established
borders accepted without question by both peoples. The Russians therefore have no
conception of permanent friendly relations between states. For them, all foreigners
are potential enemies. The technique of Russian diplomacy, like that of the Oriental
in general, is concentrated on impressing an adversary with the terrifying strength
of Russian power, while keeping him uncertain and confused as to the exact channels
and means of its application and thus inducing him to treat all Russian wishes and
views with particular respect and consideration. It has nothing to do with the cultivation of friendly relations as we conceive them." G. Kennan, Memoirs: 1925-1950
at 560 (1967).
137
138
1969]
TREATY
ON NON-PROLIFERATION
OF NUCLEAR
WEAPONS
737
escalate potentialwarfareto a higherlevel while leaving the relative positions of the two principalsunchanged. Dean Acheson has stated that:
Negotiationshould not be, as some conceiveit, mere talk apart from
action. Negotiationand action are parts of one whole. Action is often
the best form of negotiation. It affectsthe environment,which in
large part is likelyto determinethe outcomeof negotiation. The sputniks were powerfulmovesin negotiation;so was the Marshall Plan.139
The Soviets are more likelyto be impressedby imminentdeploymentthan
by skillful debate or friendlygestures.
The wisdomof ultimatedeploymentof an ABM systemmay well be disputed. The ability of such a system to offerreal protectionto missile
sites or citiesmay be questioned. But the decision to move toward the deploymentof such a systemmay well have made the ultimate necessityof
such deploymentless likely. The answer to this will depend upon the
initiation and the success of negotiationsbetween the Soviet Union and
the United States.140
Anothermajor step toward nuclear arms controlwould be accomplished
by an agreementprohibiting (or reversing) deploymentof the MIRV
systemand its Soviet equivalent. This systemis potentiallymuch more
destabilizingthan ABM.
Article VII 141 provides that nothingin the treaty affectsthe rights of
the parties to conclude regional agreementsestablishingnuclear-freezones.
The essence of this article had firstappeared in language in the preamble.
A Mexican proposal142 that the language be placed in the treaty in the
form of a separate article was accepted by the Soviet Union 143 and the
United States.144
Amendmentprocedures and provision for conferencesof review are
contained in Article VIII.145 Paragraph one, based upon a similar pro139See note 137 above, at 104.
Cf. Departmentof State, Documentson Disarmament:1967, Statementof ACDA
DirectorFosterbeforethe ENDC, Sept. 19, 1967, in defenseof the JohnsonAdministrationdecisionto deploya limitedsystem,at 402.
140
141
" ARTICLE
VII
"Nothing in this Treaty affectsthe rightof any group of States to concluderegional treatiesin orderto assurethe total absenceof nuclearweaponsin theirrespeetive territories."
142 Department
of State,Documentson Disarmament:1967,at 395-401.
143
Ibid. at 515-521.
VIII
145 " ARTICLE
144
Ibid. at 513-515.
"1. Any Party to the Treaty may proposeamendments
to this Treaty. The text
of any proposedamendment
shall be submittedto the DepositaryGovernments
which
shall circulateit to all Parties to the Treaty. Thereupon,
if requestedto do so by onethirdor moreof the Parties to the Treaty,the DepositaryGovernments
shall convenea
conference,
to whichtheyshall invite all the Parties to the Treaty,to considersuch
an amendment.
"2. Any amendment
to this Treatymustbe approvedby a majorityof the votes of
all the Parties to the Treaty,includingthe votes of all nuclear-weapon
States Party
to the Treatyand all otherParties which,on the date the amendment
is circulated,
are membersof the Board of Governorsof the InternationalAtomicEnergyAgeney.
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vision in the Partial Nuclear Test Ban Treaty, requires the depositary
to convenea conferenceto consideran amendmentif requested
governments
to do so by one-thirdor more of the parties to the treaty. Paragraph two
provides that an amendmentshall enter into force after ratificationby a
special majoritycomprisedof a majority of the parties to the treaty,including all nuclear-weaponstates parties to the treaty and all parties
which on the date of the amendmentare membersof the Board of Governors of the IAEA. An amendmentwill be of force only between the
parties ratifyingit.
Paragraph threemakes provisionfor a review conferenceto be held five
years afterthe treatyentersinto force. Further conferencesmay be held
at five-yearintervalsif requestedby a majorityof the parties.
The August 24, 1967, draft146 had provided that an amendmentwould
enter into force for all parties after approval of the qualified majority.
Rumania,147 Nigeria 148 and Canada 149 had objected to this on the ground
that consent should be the source of any treaty obligation and without
such consentto an amendmentthe disapprovingstates should not be bound.
This position was accepted by the Co-Chairmen and the draft text of
January 18, 1968, and succeedingdraftsreflectedthe change.
Article IX 150 designates the United States, the United Kingdom and
The amendment shall enter into force for each Party that deposits its instrument of
ratificationof the amendment upon the deposit of such instrumentsof ratificationby
a majority of all the Parties, including the instrumentsof ratification of all nuclearweapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are membersof the Board of Governors of the International Atomic
Energy Agency. Thereafter, it shall enter into force for any other Party upon the
deposit of its instrumentof ratificationof the amendment.
"3. Five years after the entry into force of this Treaty, a conference of Parties to
the Treaty shall be held in Geneva, Switzerland in order to review the operation of this
Treaty with a view to assuring that the purposes of the Preamble and the provisions
of the Treaty are being realized. At intervals of five years thereafter,a majority of
the Parties to the Treaty may obtain, by submitting a proposal to this effect to the
Depositary Governments,the convening of furtherconferences with the same objective
of reviewing the operation of the Treaty."
146Department of State, Documents on Disarmament: 1967, at 338-341.
147 Ibid. at 525-526.
148 Ibid. at 557-558.
149
ENDC/PV.345 at 13.
150 CC
AR.TICLEIX
"1. This Treaty shall be open to all States for signature. Any State which does not
sign the Treaty before its entry into force in accordance with paragraph 3 of this
article may accede to it at any time.
"2. This Treaty shall be subject to ratificationby signatory States. Instruments of
ratification and instrumentsof accession shall be deposited with the Governmentsof
the United States of America, the United Kingdom of Great Britain and Northern
Ireland and the Union of Soviet Socialist Republics, which are hereby designated the
Depositary Governments.
"3. This Treaty shall enter into force after its ratificationby the States, the Governments of which are designated Depositaries of the Treaty, and forty other States
signatory to this Treaty and the deposit of their instrumentsof ratification. For the
purposes of this Treaty, a nuclear-weapon State is one which has manufactured and
exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.
1969]
TREATY
ON NON-PROLIFERATION
OF NUCLEAR
WEAPONS
739
the Soviet Union as depositaries. The treatywill enterinto forceupon the
deposit of instrumentsof ratificationby the depositaries and 40 other
signatories. This article specifieshow states may become parties and provides the proceduresfor ratification,accession and registration. All these
procedureswere taken from correspondingprovisionsof the Partial Nuclear Test Ban Treaty.
Article X,151 again in part based upon the Partial Nuclear Test Ban
Treaty,permitswithdrawalfromthe treaty upon three months' notice if
the party determinesthat "extraordinary events" connected with the
"subject-matterof this Treaty'" have jeopardized the state's "supreme
interests." An additional requirement,not found in the Partial Nuclear
Test Ban Treaty, provides that notice of withdrawal must be given the
Security Council,specifyingthe extraordinaryeventsleading to the necessity of withdrawal. Provision is also made for a conferenceto be held 25
years after the treaty enters into force, when a majority of the parties
will determinewhetherthe treatywill remain in force indefinitelyor for
a fixedperiod or periods.
Although Rumania and Brazil opposed the provision in the treaty requiring a withdrawingstate to submit an explanation to the Security
Council,'52the United States insisted that it remain unchanged for the
reason that withdrawalfromsuch a treatywould affectthe international
peace and securityof otherstates and consequentlyshould be discussed by
the SecurityCouncil.'53
The basic part of the withdrawal provision permittingwithdrawal if
a state's "supreme interests" are jeopardized by events connectedwith
the treaty makes eminentlygood sense. A state whose supreme national
interestsare jeopardized by an agreementwill either violate it clandestinely or repudiate it. A withdrawalprovisionpermitsa less dangerous
"4. For States whoseinstruments
of ratification
or accessionare depositedsubsequentto the entryinto forceof this Treaty,it shall enterinto forceon the date of the
or accession.
of ratification
depositof theirinstruments
shall promptlyinformall signatoryand acceding
"5. The DepositaryGovernments
States of the date of each signature,the date of depositof each instrument
of ratification or of accession,the date of the entryinto forceof this Treaty,and the date of
or othernotices.
receiptof any requestsfor conveninga conference
" 6. This Treaty shall be registeredby the DepositaryGovernments
pursuantto
article102 of the Charterof theUnitedNations."
151 " 1AR.TICLE X
"1. Each Party shall in exercisingits nationalsovereignty
have the rightto withdraw fromthe Treatyif it decides that extraordinary
events,relatedto the subject
matterof this Treaty,have jeopardizedthe supremeinterestsof its country. It shall
give noticeof such withdrawalto all otherParties to the Treaty and to the United
Nations SecurityCouncilthreemonthsin advance. Such noticeshall includea stateeventsit regardsas havingjeopardizedits supremeinterests.
mentof theextraordinary
"2. Twenty-five
yearsafterthe entryinto forceof the Treaty,a conference
shall be
convenedto decidewhetherthe Treatyshall continuein forceindefinitely,
or shall be
extendedfor an additionalfixedperiod or periods. This decisionshall be taken by a
majorityof thePartiesto the Treaty."
152 International
Negotiations,note 9 above,at 90-91, 111.
153 Ibid. at 111.
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[Vol. 63
and provocativemeans to accomplishan end which would be reached in
any event.
The August 24, 1967, draft154 provided that the treatybe of unlimited
duration. Italy and Switzerland objected to this on the ground that the
prospect of scientificadvancementof a "rapid and unpredictable" sort
made it imperativethat the treaty be in force for a specifiednumber of
years, later to be reviewedand amended,with the threat of lapse acting
as a powerfulencouragementfor such amendment.1'5 The present article
representeda compromiseon duration and firstappeared in the January
18, 1968, draft.156
Article XI lists the officiallanguages and texts.'57
SECURITY ASSURANCES
The revised draft of January 18, 1968, did not contain any securityassurances against nuclear blackmail or attack. A number of states, particularlythe Federal Republic of Germany,India and Rumania, had been
demandingsuch securityassurances throughoutthe negotiations. During
the debate on the January18 draft,the Federal Republic supporteda proposal that nuclear-weapon states guarantee non-nuclear-weaponstates
against nuclearblackmail.'58 Rumania proposedthat nuclear-weaponstates
guarantee that they would not launch or threatento launch a nuclear attack upon non-nuclear-weapon
states.'59 The United States respondedthat
the subject was too complicatedto be dealt withby a treatyprovision. Further,the United Nations was necessarilyinvolved.'60
The Co-Chairmenand a representativeof the United Kingdom prepared
a tripartitestatementon securityassurances which was presentedto the
ENDC March 7, 1968, as a draft Security Council resolution.16' Nuclear
aggressionwas held to "endanger the peace and securityof all States."
The SecurityCouncil would declare that it recognizedthat aggressionwith
nuclear weapons "or the threatof such aggression" "would create a situation in which the Security Council and above all its nuclear-weaponstate
permanentmembers," would "act immediatelyin accordance with their
obligations" under the Charter. The draft statementfurtherwelcomed
See note146 above.
Department
of State,Documentson Disarmament:1967,at 527-528,572-574.
International
Negotiations,
note 9 above,at 110.
157 itAnTICLE XI
"This Treaty,the English,Russian,French,Spanish and Chinesetextsof whichare
equally authentic,shall be depositedin the archivesof the DepositaryGovernments.
Duly certified
copiesof this Treatyshall be transmitted
by theDepositaryGovernments
to the Governments
of the signatoryand accedingStates.
"In witnesswhereoftheundersigned,
dulyauthorized,
have signedthis Treaty.
"Done in triplicate,at the citiesof Washington,
London and Moscow,this firstday
I
of Julyone thousandninehundredsixty-eight.
158 International
Negotiations,
note 9 above,at 112.
154
155
156
159
Ibid.
160Ibid.
16iFor the text of the March 7, 1968, draft resolution,see 7 InternationalLegal
Materials570 (1968).
1969]
TREATY
ON NON-PROLIFERATION
OF NUCLEAR
WEAPONS
741
statementsby certainstates that theywould provide assistance "in accordance withthe Charter" in the eventof such attackor intimidation. Finally,
the "inherent right" of individual and
the proposed resolutionreaffirmed
recognizedin Article51 of the Charter.162The reprecollectiveself-defense
sentativesof the United States, the Soviet Union, and the United Kingdom
stated that theirgovernmentswould issue securitydeclarationsin support
of the draft resolution.163On June 19, 1968, the Security Council by a
10-0 vote approved the tripartiteresolutionwith identical wordingas previouslysubmittedby the threePowers to the ENDC.164 France abstained,
on the ground that meaningfulsecuritycould only come after nuclear disarmament,but significantlydid not cast a negative vote.165
Herman Kahn and Carl Dibble have criticizedthe approach to avoiding
nuclear weapons proliferationas manifestin the treatyas tendingto freeze
the super-Powerstatus of the United States and the Soviet Union, at a
timewhenmultipolarinfluenceand trendsare becomingincreasinglystrong.
Further,theyhazarded a prophecya year prior to the finaldraft that the
treatywould "increase inordinatelyUnited States and Soviet obligations
by giving sweepingnuclear guarantees to non-nuclearpowers withoutinthe participationof othersin this new formof 'colcreasing significantly
162
Ibid.
163For the textsof the seeuritydeclarationsof the Soviet Union,the United Kingof
dom and the United States, see Hearings on the Treaty on the Nonproliferation
Nuclear Weapons,note 1 above,at 43.
164"RESOLUTION OF SECURITYAsSURANCESADOPTEDBY THE UNITED NATIONSSECURITY
COUNCIL,JUNE 19, 1968
'The SecurityCouncil
"'Noting with appreciationthe desire of a large numberof states to subscribeto
of nuclearweapons,and therebyto undertakenot
the treatyon the non-proliferation
to receivethe transferfromany transferorwhatsoeverof nuclearweapons or other
nuclear explosive devices or of control over such weapons or explosive devices directly,
or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear
explosive devices; and not to seek or receive any assistance in the manufacture of
nuclear weapons or other nuclear explosive devices.
"Taking into consideration the concern of certain of these states that, in conjunction with their adherence to the treaty on the non-proliferationof nuclear weapons,
appropriate measures be undertaken to safeguard their security,
"Bearing in mind that any aggression accompanied by the use of nuclear weapons
would endanger the peace and security of all states,
"1. Recognizes that aggression with nuclear weapons or the threat of such aggression against a non-nuelear-weaponstate would create a situation in which the Security
Council, and above all its nuclear-weapon state permanent members, would have to
in accordancewiththeirobligationsunderthe UnitedNations Charter;
act immediately
"2. Welcomesthe intentionexpressedby certainstates that they will provide or
supportimmediateassistance,in accordancewiththe Charter,to any non-nuclear-weapon
of nuclearweaponsthat is a victim
state partyto the treatyon the non-proliferation
of an act or an object of a threatof aggressionin whichnuclearweaponsare used;
in particularthe inherentright,recognizedunder Article 51 of the
"3. Reaffirms
if an armed attack occurs against
Charter,of individualand collectiveself-defense
a memberof the UnitedNations,untilthe SecurityCouncilhas takenmeasuresnecespeace and security.I
sary to maintaininternational
165 Also abstaining were Algeria, Brazil, India, and Pakistan.
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lective' security."166 The Report of the Senate Foreign Relations CommitteerecommendingSenate consent to the treaty reacted to the United
States declarationand the Security Council resolutionas if the prophecy
of Kahn and Dibble had come true. In recommendingSenate consent,the
Committeeemphasizedthat the treatywas "separate and distinct" from
the resolutionand declaration:
The committeewishes to make the record clear that support of the
NonproliferationTreaty is in no way to be construedas approval of
thesecurityguaranteemeasuresembodiedin the United Nations resolution or the supportingU. S. declaration.167
As a matterof fact, the Senate committeeneed not be that concerned.
Neither the resolution nor the declaration creates nuclear guarantees,
"sweeping" or otherwise. Rather, the surprise will come if the Federal
Republic of Germanyor India changes its attitude toward the treaty on
the basis of those documents,which do not add or detract one point from
previous commitments.The Security Council resolutionadds no more assurances to non-nuclear-weapon
nations than theywould possess by reason
of the Charter. The operative language of the resolutionrefersto "aggression" or the "threat of aggression" with the use of nuclear weapons
against a non-nuclear-weapon
state. These termsremain undefined. And
the SecurityCouncil is no imorebound to act than it would be by the existing language in the Charter. The veto power remains unaffected. The
in paragraph threeof the resolutionof the "inherent" right
reaffirmation
of collectiveself-defenseunder Article 51 of the Charter obviously adds
nothingnew. The only advantage for non-nuclear-weaponstates had by
reason of the declarationsand resolutionwas the affirmation
of unanimity
by the three major nuclear Powers against nuclear aggression or blackmail. And this goes no fartherthan the mutualityof interestof those
nations.168
166Kahn and Dibble, "Criteria for Long-RangeNuclear ControlPolicies," 55 Calif.
Law Rev. 473, 478 (1967).
167 See SenateRep. No. 9, note101 above,at 10.
168 See the exchangebetweenSenatorMargaretChase Smithand GeneralEarle G.
Wheeler,Chairmanof the JointChiefsof Staff,in Hearingson MilitaryImplications
of Nuclear Weapons before the Senate Comof the Treaty on the Nonproliferation
mitteeon ArmedServices,91st Cong.,1st Sess., at 22 (1969). GeneralWheelerassured
SenatorSmiththatthetreatyin no wayincreasedU. S. securitycommitments.
Paul Nitze,formerDeputySecretaryof Defense,testifiedbeforethe Senate Foreign
Relations Committee,
Hearings on the Treaty on the Nonproliferation
of Nuclear
Weapons,note 1 above, at 56, that the Defense Departmentworkedcloselywith the
Departmentof State and the ACDA on the wordingof the United States declaration
and the U.N. resolution. He agreed that the statementsdo not containany increase
in our securitycommitments.Secretaryof State Rusk and ACDA DirectorWilliam
Foster testifiedthat the SecurityCouncilresolutionand the U. S. declarationdid not
committhe United States to any additionalresponsibilities
otherthan those already
assumedunderthe U.N. Charter,with the veto powerremainingunaffected.See the
questionsof SenatorsSparkman,Pastore,Bennettand Case, note 1 above,at 15-16,34.
SenatorCase asked SecretaryRuskwhetherthe treatyor the declarationand resolution
in any way increasedPresidentialpowerto commitUnited States forcesin the event
of nuclearaggressionor the threatof nuclearaggression. SecretaryRusk responded
1969]
TREATY
ON NON-PROLIFERATION
PROSPECTS
FOR THE
OF NUCLEAR
WEAPONS
743
FUTURE
Key states to watch as barometersindicating whetherthe treaty will
receive sufficient
ratificationsto enter into force-and if it does whether
the "right" statesare parties-are West Germany,Israel, Japan and India.
All could independentlymanufacturenuclear weapons. All have serious
securityproblemsplausiblygeneratingthe need for nuclear defense. What
theydo will be of criticalimportanceto the success of the treaty. A snowballing effectwill followtheiraction in eitherdirection.
Though the People's Republic of China will undoubtedlynot ratify,if
the treaty is ratifiedby a large number of states, China's potential customerswill largely be prohibitedfromreceivingnuclear weapons. States
with the technologicalcapacity to develop nuclear weapons, such as India,
Japan, and Israel, will not be likelybeneficiariesof Chinese aid, regardless
of treatyratification. States closerto China (Albania, NorthKorea, North
Viet-Nam,Cuba) are not technologicallycapable of mountinga nuclear
weapons program.
The possible effectof the treaty upon United States security alliances
has been disputed. The treaty has been described as having "the most
far-reachingand unsettlingeffects,"producing"profound changes" upon
NATO, ineludingthat of denying"to the United States the option of providing nuclear assistance to a European nuclear force." 169 Dr. Robert
Strausz-Hupe',testifyingat the Senate Foreign Relations Committeehearings, maintained that NATO solidarity was endangered by the priority
the United States has given arms control negotiationswith the Soviet
Union.170 He urged the Senate to "reject the nuclear nonproliferation
treaty," and reject as well "the package in whichit and othermeasuresof
arms controlhave been offeredto its scrutiny."171
There can be little doubt that, as Dr. Strausz-Hupe' maintains,172a
major reason for Soviet support for the treatyspecifically,and for Soviet
participationin arms control talks generally,is its possible impact upon
the positionof the Federal Republic of GermanywithinNATO. In addition,the treatyis seen by the Soviets as one morehedge against the eventual
acquisitionof nuclear arms by West Germany.173 This is not to say, however,that Soviet objectiveshave been accomplished,or even furthered,insofar as West Germany's position in NATO is concerned. It is difficult
to see what "profound changes" the treatyhas broughtabout in the position of the Federal Republic and NATO.
First of all, United States law 174 and policy forbidthe transferof nuclear explosive devices of any type to any country,ineluding our NATO
or Presidentialprerogativesaltered by
that neitherwere formaltreatycommitments
or the U. S. declaration. Ibid. 40-41.
the treaty,the SecurityCouncilresolution,
169" Reflections
on the Quarter," 11 Orbis963, 967 (1968).
170 See note1 above,at 129-139.
171 Ibid. at 138.
172 See note169 above,at 967.
173 See Larson, note 11 above, at 148: Maggs, "The Soviet Viewpointon Nuclear
Weapons in InternationalLaw," 29 Law and Contemporary
Problems956, 964-968
(1964).
174 See notes13 and 14 above.
744
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allies. The treaty does not effectany change in this policy.'75 It does
not prohibitthe transferof nuclear deliveryvehiclesor deliverysystems.178
Neitherdoes it affectin any way the NATO Nuclear Planning Group.177
The treaty does not prohibitthe deploymentof nuclear weapons owned
and controlledby the United States within the territoryof its NATO
allies,'78thoughthe 1965 Soviet draft attemptedto accomplishthis.'79 As
Dr. Strausz-Hnupeobserved,the ill-fatedMultilateral Force would be prohibitedby the treaty,for whateveroverkillvalue such a prohibitionmay
have. Since that fleetsank as much fromwell-deservedEuropean scorn
to lamentthe prohibition. But a much
as Americanreticence,it is difflcult
more meaningfulEuropean federationwhich would absorb an existing
nuclear forceof a European state would presumablynot be prohibitedby
175 The followingquestionswere asked by our NATO allies in responseto Arts. I
UnitedStates responsefollowseach question.
and II. The official
underthe drafttreatyl"
Q.1 "What may and whatmay not be transferred
not withwhatis permitted.
A. "The treatydeals onlywithwhatis prohibited,
"It prohibitstransferto any recipientwhatsoeverof 'nuclear weapons' or control
overthem,meaningbombsand warheads. It also prohibitsthetransferof othernuclear
explosivedevicesbecause a nuclearexplosivedeviceintendedfor peacefulpurposescan
be used as a weaponor can be easilyadaptedfor suchuse.
"It does not deal with,and thereforedoes not prohibit,transferof nuclear deliveryvehiclesor deliverysystems,
or controloverthemto any recipient,so long as such
transferdoes not involvebombsor warheads."
Q.2 "Does the draft treatyprohibitconsultationsand planning on nuclear defense
amongNATO members?"
A. "It does not deal with allied consultationsand planningon nuclear defenseso
long as no transferof nuclearweaponsor controloverthemresults."
Q.3 "Does thedrafttreatyprohibitarrangements
forthedeployment
of nuclearweapons
owned and controlledby the United States withinthe territoryof nonnuclear
NATO members?"
A. "It does not deal witharrangements
for deployment
of nuclearweaponswithin
as thesedo not involveany transferof nuclearweaponsor control
allied territory
overthemunlessand until a decisionweremade to go to war, at whichtime the
treatywouldno longerbe controlling." InternationalNegotiations,note 9 above,
at 180.
178 Ibid. See as wellthe comments
of SecretaryRusk,note 68 above.
177 Deputy Secretaryof Defense Paul Nitze, appearingbefore the Senate Foreign
RelationsCommittee,
quotedSecretaryClarkClifford'sstatementto the NATO Nuclear
PlanningGroupministerialmeetingat The Hague in April, 1968:
holdsthe viewthat the entryinto forceof the Nonprolifera"The U. S. Government
withthe workof the NuclearPlanningGroup. The U. S.
tionTreatywillnot interfere
intendsto continueto pursueactivelythe workof the Nuclear Planning
Government
Groupand to seek to findsolutionssatisfactory
to its non-nuclear
partnersin NATO.
It also is the view of the U. S. Government
that the Nonproliferation
Treatywill not
hinderthe furtherdevelopment
of nuclear defensearrangements
withinthe allianee
compatiblewitharticlesI and II of the Nonproliferation
Treaty."
SecretaryNitze added: "We have also assuredour NATO and otherallies that the
withany existingnucleararrangements." Hearings on the
treatywouldnot interfere
Treatyon the Nonproliferation
of NuclearWeapons,note 1 above, at 56.
178 See notes68 and 175 above.
179 Bunn,"The NuclearNonproliferation
Treaty," 1968 Wis. Law Rev. 766, 778.
1969]
TREATY
ON NON-PROLIFERATION
OF NUCLEAR
WEAPONS
745
the treaty.180 Since the treaty prohibitsonly the "transfer" of nuclear
weapons, the successionby a federatedEuropean state to one of its component's previouslynational nuclear forceswould not be proscribed.
The Multilateral Force was mainly designed to placate any European
desire for national nuclear forces while at the same time keeping completely centralized (i.e., American) control over Western nuclear forces
to preservesome degree of restraintand directionin case of nuclear war.
It would seem that the treatybetterachieves the latter goal while removing much of the competitiveimpetusfromthe former. The argumentcan
be made that rather than being a divisive influenceupon NATO, in fact
the treatywill have the opposite effect. Germanyis presentlyforbidden
by a protocolto the Treatyof Brussels 181 fromdevelopingnuclear weapons.
The Treaty on the Non-Proliferationof Nuclear Weapons may serve to
removewhat may be taken as a stigma fromthe Federal Republic by removingthe unique nature of this prohibition.
The degree of collaborationbetween the United States and its NATO
allies 182 duringthe negotiationof the treatywould seem to belie the assertion of Dr. Strausz-Hupe' that the process of such negotiation and the
contentof the treatywill lessen NATO solidarity. It is not doubted,however,thatbilateral arms controlnegotiationsin the past betweenthe Soviet
Union and the United States have caused such divisions.188
NATO is valuable as it contributesto internationalsecurity. It is a
means and should not be treated as if it were an end in itself. It remains
essentiallyunaffectedby the treaty. Most important,no alliance system
can provide protectionfromthe dangers inherentin the possessionof nuclear weapons by a continuallygrowingnumberof states.
There is no questionbut that militaryviewpointson mattersof national
securityconnectedwith the treatywere taken into account at every stage
of the negotiatingprocess. General Earle Wheeler,Chairman of the Joint
Chiefs of Staff,reported to the Senate Armed Services Committeethat
the JointChiefshad made 14 formaltreatyproposals since the negotiations
began. Each resultedin a change in the draft treatyaimed at strengthening the securityinterestsof the United States and its allies. The Joint
Chiefs asked that the treatynot "disrupt any existingdefense alliances"
of the United States; that it not "prohibit deploymentof United States
owned and controllednuclear weapons within the territoryof our nonnuclear NATO allies"; that it not prohibitthe use of nuclear weapons by
the United -Stateswhen its national securityso demanded; and that the
180 Secretaryof State Rusk testified
beforethe Senate ForeignRelationsCommittee
thatthe treatydid not affectthe questionof Europeanunity; that it "would not bar
successionby a newfederatedEuropeanstateto the nuclearstatusof one of its former
components.. . . While not dealing with successionby such a federatedstate, the
treatywould bar transferof nuclearweapons (includingownership)or controlover
themto any recipient,includinga multilateralentity." Hearings on the Treaty on
of NuclearWeapons,note 1 above,at 5-6.
theNonproliferation
181 See note 17 above.
182 See discussionat p. 718 above.
188 See Bechhoefer,
PostwarNegotiationsfor ArmsControl(1961).
746
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of United
treatynot "involve an obligationfor the automaticcommitment
States militaryforces." They also asked for a withdrawalclause and safeguards provisions. GeneralWheelerreportedthat everyrequestwas met.184
It is difficultto see how the extensionto other nations of prohibitionsalreadysubstantiallyupon the United States 185 iS not in our national interest.
The Treaty on the Non-Proliferationof Nuclear Weapons was described
by President Lyndon Johnsonas "a triumphof sanity and of man's will
to survive." 188 Historians of the future may look upon it as one of the
two or three great documentsof the postwar era. Whetherit will be so
regarded will probably depend upon the implementationof Article VI.
The basic prophylacticprovisions,ArticlesI and II, are importantin themselves but are of primaryvalue as instrumentsthroughwhich the world
may gain a few years' respite from uncontrolledproliferationof nuclear
weaponry; years which must be used to control the so-called "vertical
" of the two super-Powers. If Article VI is quickly and
proliferation
effectively
implementedthrough agreementsleading to missile limitation
and stockpile reduction,then the pressures upon presentlynon-nuclearweapon nations to acquire nuclear weapons will diminish. Without such
agreementsthe growing pressures upon select non-nuclear-weaponstates
would seem almostinevitablyto lead to the eventual failure of the treaty.
184Note 168 above,at 14-15. See also GeneralWheeler'stestimony
in the Hearing
of NuclearWeapons,note 1 above, at 12. The
on the Treatyon the Nonproliferation
at the planningsessions,WhiteHouse meetings,the meetings
JCS had a liaison officer
of Principals,and at all ENDC sessions. Ibid. at 57; note 167 above,
of the Committee
at 14-15.
185See notes13 and 14 above
186 See note2 abQve,