TWO LEGAL ISSUES CONFRONTING
NATO AND THE NON-PROLIFERATION REGIME:US Presidential Decision Directive 60
versusPledges of Non-Use of Nuclear Weapons
Made to Non-Nuclear Weapon States

NATO Nuclear Sharing
versusthe Nuclear Non-Proliferation Treaty

John Burroughs
Lawyers' Committee on Nuclear Policy
New York www.lcnp.org
May 3, 1999

Introduction and Summary
This paper addresses 1) the legal status of negative security assurances and exceptions to thoseassurances asserted by the United States in connection with Presidential Decision Directive 60 adopted in
November 1997; and 2) the legal status of NATO nuclear sharing practices.
Those issues deserve serious attention at the 1999 preparatory meeting for the 2000 Nuclear NonProliferation Treaty (NPT) Review Conference and in the process to be initiated within NATO to "consider
options for confidence and security building measures, verification, non-proliferation and arms control anddisarmament”.1
The following conclusions are reached:
Negative Security Assurances:Χ

Assurances of non-use against non-nuclear weapon states parties to the NPT and to regional nuclear
weapon free zone treaties are legally binding, and this should be formally recognized and affirmed by
the nuclear weapon statesΧThe determination of whether a state is in good standing under the NPT and regional treaties andprotected by the assurances is a matter for the International Atomic Energy Agency or otherauthoritative international body and not for the nuclear weapon statesΧThe use of nuclear weapons in reprisal against a chemical or biological attack is barred by theassurances and further could not meet the legal requirements governing reprisals

Χ

Preemptive uses of nuclear weapons against chemical or biological weapon capabilities are similarly
barred, and the United States should impose its statement that it has no policy of such uses on US
armed forces which continue to plan and prepare for such a contingency

1

Washington Summit Communique, 24 April 1999, Press Communique NAC-S(99)64, para.
52. The paragraph further states:
The [North Atlantic] Council will propose a process in December [1999] forconsidering such options. The responsible NATO bodies would accomplish this. We
support deepening consultations with Russia in these and other areas in the Permanent
Joint Council as well as with Ukraine in the NATO-Ukraine Commission and with other
Partners in the EAPC [Euro-Atlantic Partnership Council].

2NATO Nuclear Sharing Practices:Χ

The practices are a prima facie violation of Articles I and II of the NPT because the United States istransferring to non-nuclear weapon states control over nuclear weapons

Χ

The US argument justifying nuclear sharing to the effect that the NPT becomes ineffective in time of
war is extremely dangerous; it undermines the stability of the NPT and of international law generallyΧ

The United States should resolve the serious questions about the legality of nuclear sharing bywithdrawing nuclear weapons from deployment in NATO states, terminating nuclear sharing
arrangements, and renouncing the position that the NPT becomes ineffective in time of war

US Presidential Decision Directive 60 Versus Pledges of Non-Use of
Nuclear Weapons Made to Non-Nuclear Weapon States
Background: The United States and the other declared nuclear weapon states (Russia, China, France,
United Kingdom) have given assurances of non-use of nuclear weapons to non-nuclear weapon states parties
to the Nuclear Non-Proliferation Treaty (NPT) and to regional nuclear weapon free zone treaties. These
include the signing of protocols to the regional treaties,2 adoption of memoranda on security assurances,3 anddeclarations. The most recent declarations were made shortly before 1995 NPT Review and Extension
Conference and referred to in Security Council Resolution 984 (1995). The US declaration stated:
The United States reaffirms that it will not use nuclear weapons against non-nuclear-weapon
States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons except in the caseof an invasion or any other attack on the United States, its territories, its armed forces or othertroops, its allies, or on a State towards which it has a security commitment, carried out orsustained by such a non-nuclear-weapon State in association or alliance with a nuclearweapon State.4
2

Tlatelolco, Rarotonga, and Pelindaba.

3

With Ukraine, Belarus, and Kazakstan.

4

S/1995/263 (6 April 1995). The United States’ 1978 declaration stated:

The United States will not use nuclear weapons against any non-nuclear-weapon State
party to the non-proliferation Treaty or any comparably internationally binding
commitment not to acquire nuclear explosive devices, except in the case of an attack on
the United States, its territories or armed forces, or its allies, by such a State allied to anuclear-weapon State or associated with a nuclear-weapon State in carrying out orsustaining the attack.
A/C.1/33/7, annex (17 November 1978). Compare the phrase “any comparably internationally binding3

When signing the non-use protocol to the Pelindaba Treaty, the White House stated in a press briefing that the
protocol “will not limit options available to the United States in response to an attack by an ANFZ [African
Nuclear-weapon Free Zone] party using weapons of mass destruction”.5
Presidential Decision Directive (PDD) 60, a classified document signed in November 1997, is thelatest statement of US nuclear strategy. According to Robert Bell, special assistant to the president for national
security:
The PDD also reaffirmed ... our negative security assurance policy; that is, it is the policy of
the United States, as restated in this PDD, not to use nuclear weapons first in a conflict unlessthe state attacking us or our allies or our military forces is nuclear-capable or not in goodstanding under the NPT or an equivalent regime, or third, is attacking us in alliance with anuclear capability [state].6
Bell also stated that under the PDD:
We have no plans, no planning, no intention, no policy of using nuclear weapons preemptively
to go after, take out, whatever you want to call it, WMD [weapons of mass destruction]
storage or production facilities.... We have every conventional option we need to deal with ourability to target facilities that store or produce weapons of mass destruction. And that is
distinct, then, from the use of such weapons by an adversary in a conflict where our negative
security assurance policy stands.7
As described by Bell, the PDD allows for several loopholes with respect to negative security
assurances. First, US nuclear first use is permissible if a state is nuclear capable or not in good standing under
the NPT or an equivalent regime. Second, it is permissible if a state is attacking in alliance with a nuclear
capable state. Third, it is permissible if a state has previously used chemical, biological or other weapons ofmass destruction. The third loophole was alluded to in Bell’s last quoted sentence and in the US statement
quoted above concerning the protocol to the Pelindaba Treaty, and was stated unambiguously in reporting
about the PDD. According to the Washington Post:

commitment not to acquire nuclear explosive devices” with Robert Bell's reference to "NPT or anequivalent regime” quoted in the text.
5

White House, Press Briefing by Robert Bell, April 11, 1996, cited in George Bunn, "The
Legal Status of U.S. Negative Security Assurances to Non-Nuclear Weapon States.” 4 The
Nonproliferation Review (Spring-Summer 1997, No. 3) 1 (hereinafter “Bunn"), at 11, fn. 116.
6

Robert Bell, “Strategic Agreements and the CTB Treaty: Striking the Right Balance,” 28Arms Control Today (No. 1, January/February 1998) 3, at 6.
7

Id. at 9.

4

Bell said Clinton’s nuclear targeting directive reflects “much greater sensitivity to the threats”
posed by chemical and biological attacks since the previous directive was issued. But headded that it only reiterates what senior administration officials already have said about theissue during the past year - namely, that if any nation uses weapons of mass destruction against
the United States, it may "forfeit” its protection from U.S. nuclear attack under the 1995
pledge [reaffirming negative security assurances].8
In addition to the foregoing exceptions to negative security assurances, and despite Bell's abovequoted renunciation, the United States has given conflicting signals about preemptive use of nuclear weapons
against chemical or biological weapon capabilities. The United States first raised and then denied thepossibility of preemptive use against an alleged Libyan chemical weapons facility.9 Armed forces planningdocuments also refer to the possibility, implicitly or explicitly. For example, an Air Force document, dated
after the PDD was adopted and after Bell's statement, states:
If US objectives are more limited, a counterforce strategy of employment might be more
appropriate. This refers to the use of weapons against the enemy's immediate war-fighting
capability. While there will certainly be long-term effects from the use of a nuclear device
against any target, counterforce strategy focuses on the more immediate operational effect.
Nuclear weapons might be used to destroy enemy WMD before they can be used, or they
may be used against enemy conventional forces if other means to stop them have provenineffective.10

8

R. Jeffrey Smith, "Clinton Directive Changes Strategy On Nuclear Arms," Washington Post,
December 7, 1997. See also Edward Warner III, Assistant Secretary of Defense (Strategy and Threat
Reduction), prepared statement before the Strategic Forces Subcommittee, Senate Armed Services
Committee, Hearing on Nuclear Deterrence, March 31, 1998, at 9, quoted in J. Medalia, "Nuclear
Weapons Production Capability Issues," Congressional Research Service Report to Congress, June
1998, at CRS-14:
If any nation were foolish enough to attack the U.S., its Allies, or friends with chemical
or biological weapons, our response would be swift, devastating, and overwhelming.
As Secretary Perry said in 1996, we are able to mount a devastating response without
using nuclear weapons. Nevertheless, we do not rule out in advance any capability
available to us.
9

See Stephen I. Schwartz, "Miscalculated Ambiguity: US Policy on the Use and Threat of Useof Nuclear Weapons," Disarmament Diplomacy (February 1998, No. 23) 10, at 11, available atwww.acronym.org.
10"Nuclear Operations," Air Force Doctrine Document 2-1.5 (15 July 1998), at 8-9 (emphasis

supplied).

5Legal analysis: Negative security assurances are legally binding. Protocols to nuclear weapon freezone treaties are treaty instruments. Memoranda of agreement have a legally binding form.11 Assurances
made in the form of declarations are also binding because they were made with the intent of inducing nonnuclear weapon states to agree to the indefinite extension of the NPT. 12 In its advisory opinion, theInternational Court of Justice concluded that "[a] threat or use of nuclear weapons should also be compatible... with specific obligations under treaties and other undertakings which expressly deal with nuclear
weapons.”13 Nonetheless, the United States has not yet accepted that its 1995 declaration is legallybinding.14 The United States instead may view the declaration as “politically binding”,15 recognizing theobligation but holding that only “political" consequences, for example condemnation in international forums,
would follow from a violation, not “legal” consequences such as might be imposed by an international court.
According to George Bunn, the distinction “could make a difference to nuclear strategists planning possible
future uses of nuclear weapons or making recommendations for nuclear use to a president in time of war”.16
The Principles and Objectives for Nuclear Non-Proliferation and Disarmament adopted by the 1995
NPT Review and Extension conference provide thatfurther steps should be considered to assure non-nuclear-weapon States not party to theTreaty against the use or threat of use of nuclear weapons. These steps could take the form of
an internationally legally binding instrument.17
Whether or not other “further steps” regarding negative security assurances are taken, the United States andthe other declared nuclear weapon states should formally recognize and affirm the existing declarations aslegally binding. However, questions about the legal status of the declarations must not obscure that in affirming
11

Bunn at 7.

12

See id. at 8-11. A unilateral declaration can be binding in a negotiating context, or when otherstates have relied upon the declaration to their detriment. After France declared its intent to stop
atmospheric testing, the International Court of Justice dismissed as moot Nuclear Tests Case
(Australia and New Zealand v. France) 1974 ICJ Rep. 253, and in so doing, found that thedeclaration was an assumption of a binding obligation. The negative security assurances may also haveattained the status of binding customary international law. See Bunn at 10.
13

Legality of Threat or Use of Nuclear Weapons, General List No. 95 (Advisory Opinion of
8 July 1996), para. 105(2)(D) (emphasis supplied).
14

Bunn at 11.

15

See id. at 8, 10-11.

16

Id. at 11.

17

Para. 8, NPT/CONF. 1995/32 (Part I), Decision 2.

6the negative security assurances as longstanding US policy the United States has recognized their importanceto the integrity and viability of the NPT. The same considerations support excluding or severely limiting
asserted exceptions to the negative security assurances, as discussed below.
1) Protected states: The determination of whether a state is nuclear-capable or not in good standing
under the NPT or an equivalent regime is not a matter for unilateral US determination but must be based on adetermination by the International Atomic Energy Agency (IAEA) or other authoritative body. For example,
the United States cannot reserve the right to use nuclear weapons against Iraq on the ground that it is not ingood standing under the NPT now that the IAEA has found Iraq to be presently in compliance. Also,“equivalent regime” must be understood to refer to a regime regulating nuclear weapons such as a nuclear
weapon free zone treaty, not to the regimes prohibiting chemical and biological weapons. Negative security
assurances were given in connection with the NPT, not the Chemical Weapons Convention (CWC) or the
Biological Weapons Convention (BWC).
2) Reprisals: The US reservation of the option of using nuclear weapons in reprisal for prior use ofchemical, biological or other non-nuclear weapons of mass destruction must be rejected. With the exceptionof the statement made in connection with the Pelindaba Treaty, the negative security assurances included nosuch qualification and, as just noted, are an integral part of the NPT regime, not the CWC and BWC regimes.
A reinforcing consideration is that a nuclear use would end more than 50 years of non-use and tend tolegitimize the possession and use of nuclear weapons, and thereby significantly, perhaps fatally, undermine thenon-proliferation regime.
Even aside from the bar posed by negative security assurances, the use of nuclear weapons in reprisal
would be virtually impossible to justify legally. In the event of a chemical attack, chemical weapon use inreprisal is ruled out by the CWC, which requires that states “never under any circumstances” use such
weapons. While the use of biological weapons is prohibited by the Geneva Protocol of 1925, reaffirmed by
the BWC, there is no similarly clear prohibition on their use in reprisal. Nonetheless, their development andpossession is prohibited by the BWC, and a prohibition of reprisals is a strong inference on that ground alone.
The United States is apparently not considering executing biological reprisals to biological attacks.18
However, the United States is considering, indeed threatening, the use of nuclear weapons in reprisal tochemical or biological attacks, as well as to nuclear attacks. The doctrine of reprisal offers little support forthat posture.
A reprisal has classically been defined as an otherwise illegal act, taken in response to an enemy'sprior illegal act, executed with the intent of causing the enemy to cease such acts. The International Court ofJustice observed that like self-defense, the right of recourse to reprisals is “governed inter alia by theprinciple of proportionality”.19 Thus, like self-defense, reprisal would warrant only measures which are18

See Bunn at 12.

19

Legality of Threat or Use of Nuclear Weapons, para. 46.

7

proportional to the armed attack and necessary to respond to it.20 The risk of escalation and effects on theenvironment must be taken into account in assessing proportionality, and the requirement of proportionality
incorporates humanitarian law protecting combatants against unnecessary suffering and non-combatants
against direct or indiscriminate harm.21 Humanitarian law must be obeyed in all circumstances, as the ICJ's
opinion reflects. The ICJ concluded that “[a] threat or use of nuclear weapons should also be compatible withthe requirements of international law applicable in armed conflict, particularly those of the principles and rulesof humanitarian law ...”22 The ICJ also observed that “fundamental” rules of humanitarian law are“intransgressible”.23 Finally, the ICJ formulated the principle barring the infliction of indiscriminate harm inemphatically categorical form, paralleling the above-quoted language of the CWC in the use of the word
“never”: “States must never make civilians the object of attack and must consequently never use weaponsthat are incapable of distinguishing between civilian and military targets”.24
Thus a nuclear reprisal must meet requirements including the following: 1) it must be necessary, i.e.
there must be no less dangerous means of causing the enemy to desist from further chemical or biologicalattacks; 2) it must be proportionate, i.e. must not be excessive in relation to the scale of the prior attack and tothe objective of causing the enemy to cease such attacks, taking into account the risk of escalation andenvironmental consequences; 3) it must not target or indiscriminately harm civilians, or cause unnecessary
suffering to combatants. It is extremely difficult to conceive of scenarios, even one where a preceding
biological attack had caused casualties in the hundreds of thousands, where all of these requirements could be
met. The advisory opinion of the International Court of Justice is in accord. While reaching no definitive
position regarding an extreme circumstance of self-defense in which the very survival of a state is at stake, theCourt concluded that threat or use of nuclear weapons is generally illegal. Even in the unlikely case where achemical or biological attack placed the survival of a state at risk, with its conventional capabilities the UnitedStates would have no need to ignore the presumptive illegality of use of nuclear weapons.
20

See id., para. 41.

21

Id., paras. 30, 42, 43.

22

Id., para. 105(2)(D).

23

Id., para. 79.

24

Id., paras. 78 (emphasis supplied). The categorical humanitarian ban on attacks upon
civilians is also found in the Statute of the International Criminal Court, adopted July 17, 1998 in Rome.
It prohibits “[i]ntentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities” and “against civilian objects”. Art. 5(b)(I) and (ii). While
the Statute does not explicitly ban reprisals against civilians, neither is any exception made for reprisals.
The Statute sets forth the offenses under which individuals would be prosecuted once that court is inoperation. Its substantive provisions were explicitly negotiated on the basis that they would reflect thepresent state of law binding on all states, and the United States participated actively in their negotiation.
While the Statute is not yet in effect, as the required number of states (60) has not yet ratified the
instrument, and while the United States' present position is that it will not sign or ratify the Statute, theStatute nonetheless stands as a consensus-based statement of presently binding law defining war crimes.

83) Preemptive uses: Bell's statement that the US has no policy of preemptive uses of nuclear weapons
against non-nuclear WMD capabilities is to be welcomed, and should be imposed upon US armed services
which continue to plan and prepare for such a contingency. A preemptive use of nuclear weapons against a
non-nuclear weapon state party to the NPT or a regional nuclear weapon free zone would unquestionably
breach negative security assurances and would also fail to comply with the requirements of necessity,
proportionality, and discrimination.25

NATO Nuclear Sharing Versus the Nuclear Non-Proliferation Treaty
Background: Six non-nuclear weapon states, Belgium, Germany, Greece, Italy, The Netherlands, andTurkey, are involved in NATO nuclear cooperation programs conducted pursuant to agreements between
each of those states and the United States.26 The programs include maintenance of dual capable aircraft
prepared for the conduct of nuclear missions and training in nuclear weapons use. On the order of 150
nuclear bombs are reportedly deployed in the cooperating states and the United Kingdom. They cannot be
armed without an order from the United States. In time of war, according to a 1969 statement of the25

Indeed, in general, any first use of nuclear weapons by the United States could not meet therequirements of necessity, proportionality, and discrimination. Both PDD 60 and US negative security
assurances fail to recognize this reality, because they reflect the US policy of possible first use in
response to conventional aggression by a nuclear-armed state or by a non-nuclear weapon state
carrying out such aggression in alliance with a nuclear-armed state. PDD 60 also reaffirms the US
policy of massive retaliation against nuclear attack, failing to recognize that massive retaliation by its very
nature inflicts indiscriminate harm. According to Robert Bell, as reported in the previously cited
Washington Post article concerning the PDD, nuclear weapons “are still needed to deter ‘aggression
and coercion' by threatening a response that ‘would be certain and overwhelming anddevastating’ [and] the directive still allows the United States to launch its weapons after receiving
warning of attack - but before incoming warheads detonate - and also to be the first to employ
nuclear arms in a conflict." (Emphasis supplied.) Compliance with the law requires not only respect
for negative security assurances as described in the text, but also a policy of unconditional no first use
and rejection of the policy of massive retaliation.
26

The Netherlands agreement, for example, refers to the exchange of classified information
pertaining to the “[t]raining of personnel in the employment of and defense against atomic weapons...”and “[d]evelopment of delivery systems compatible with the atomic weapons which they carry.” Article
II, Netherlands, Atomic Energy: Cooperation for Mutual Defence Purposes, 1959. See Martin
Butcher, Nicola Butler, Oliver Meir, Otfried Nassauer, Dan Plesch, Georg Schofbanker and Stephen
Young, Austrian Study Center for Peace and Conflict Research, Berlin Information-centre forTransatlantic Security, British American Security Information Council, Centre for European Security andDisarmament, NATO Nuclear Sharing and the NPT - Questions to be Answered (June 1997), at 14(hereinafter “NATO Nuclear Sharing”). This publication is a valuable source of information andanalysis.

9chairman of the US Joint Chiefs of Staff, release of the weapons to the cooperating states could be
authorized.27 NATO's recently adopted “Strategic Concept” affirms a continuing commitment to nuclear
sharing.28
Article I of the Nuclear Non-Proliferation Treaty provides:
Each nuclear-weapon State Part to the Treaty undertakes not to transfer to any recipientwhatsoever nuclear weapons or other nuclear explosive devices or control over such weapons
or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce
any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or othernuclear explosive devices, or control over such weapons or explosive devices.
Article II imposes the corollary obligation on non-nuclear weapon states not to be the recipient of any suchtransfer or assistance.
In the US view, the NATO nuclear sharing arrangements do not violate Articles I and II because the
NPTdoes not deal with arrangements for deployment of nuclear weapons within allied territory as
these do not involve any transfer of nuclear weapons or control over them unless and until adecision were made to go to war, at which time the treaty would not longer be controlling.29
27

See Testimony of General Earle G. Wheeler, “Military Implications of the Treaty on the NonProliferation of Nuclear Weapons,” Hearing before the US Senate Armed Services Committee, 91-2,
February 27-28, 1969, at 23, quoted in NATO Nuclear Sharing at 5.
28

Press Communique NAC-S(99)65, Washington Summit Communique, April 24, 1999, “TheAlliance∋s Strategic Concept”. At paras. 63 and 64 the document states in part:A credible Alliance nuclear posture and the demonstration of Alliance solidarity andcommon commitment to war prevention continue to require widespread participation by
European Allies involved in collective defence planning in nuclear roles, in peacetime
basing of nuclear forces on their territory and in command, control, and consultation
arrangements. Nuclear forces based in Europe and committed to NATO provide anessential political and military link between the European and the North American
members of the Alliance....
... NATO will maintain, at the minimum level consistent with the prevailing security
environment, adequate sub-strategic forces based in Europe which will provide anessential link with strategic nuclear forces, reinforcing the transatlantic link. These willconsist of dual capable aircraft and a small number of United Kingdom Trident
warheads....
29“Questions on the Draft Non-Proliferation Treaty Asked by U.S. Allies Together With

10

This position was communicated to the Soviet Union, NATO states, and certain members of the Eighteen
Nation Disarmament Committee (the predecessor to the Conference on Disarmament), prior to the opening of
the NPT for signature on July 1, 1968.30 It was made public in hearings before the Senate on July 9, 1968.
The position was never made part of a formal international statement by the United States in connection withsignature or ratification. So far as is known to the Lawyers' Committee on Nuclear Policy, no state made aformal objection to the position in connection with signature or ratification. At the 1995 NPT Review andExtension Conference, many non-NATO states indicated their lack of acceptance of the position, someholding that there is no joint interpretation of Articles I and II, others holding that the NATO nuclear sharing
arrangements violate Articles I and II. At the 1998 NPT meeting preparing for the 2000 Review Conference,
the Non-Aligned Movement, representing more than 100 states, presented a working paper calling pursuant
to Article I for nuclear weapon states to refrain from “nuclear sharing for military purposes under any kind of
security arrangements”, among themselves, with non-nuclear weapon states, and with states not party to the
NPT. 31
Legal analysis: There is a prima facie case that NATO nuclear sharing violates Articles I and II. The
United States is transferring to non-nuclear weapon states control over nuclear weapons. In a non-NATOcontext, the United States likely would not accept the explanation that the control is partial. Further, theUnited States itself has acknowledged that there could be a transfer of control in the event of war, and theUnited States is presently assisting non-nuclear weapon states in acquiring such possible control. The NPT
does not provide that it becomes ineffective in time of war. Nor is there any basis in international law for
maintaining that it does so. The NPT does provide for withdrawal upon three months notice of extraordinary
events that a state regards as having jeopardized its supreme interests, but this is not relied upon by the UnitedStates.
The US argument that the NPT becomes ineffective in time of war is extremely dangerous. As atreaty regulating weapons, it would seem that, if anything, it becomes more relevant in wartime rather than less.
Moreover, the US position promotes instability. The argument could be relied upon by any nuclear weapon
state to justify supplying nuclear weapons to other states, or a non-nuclear weapon state acquiring nuclear
weapons. The question arises, what kind of war triggers ineffectiveness? The United States has indicated thata “general" war involving nuclear weapon states and the use of nuclear weapons would qualify, but this does
not suffice to resolve the question for a wide range of possible conflicts.32 Further, the notion that a treaty
becomes ineffective in time of war undermines international law. In considering, for example, human rights andAnswers Given by the United States”, NPT Hearings, US Senate, 90-2, at 262-263.
30

NATO Nuclear Sharing at 7.

31

Project on European Nuclear Non-Proliferation, Press Release, “Non-Aligned Movement
Demands an End to NATO Nuclear Sharing,” annex, April 28, 1998.
32

See NATO Nuclear Sharing at 9-10.

11environmental treaties in connection with the legality of threat or use of nuclear weapons, the International
Court of Justice held that those treaties continue to apply during wartime.33
Thus the language of Articles I and II supports illegality. In response, the United States can point to
the following factors: the nuclear sharing practices were in place at the time the treaty was negotiated; thenegotiating history apparently indicates no positive intent to end those practices or objection to the US
position; from opening for signature until entry-into-force, no objections apparently were voiced to theposition; and the practices continued for a quarter century before they were challenged at the 1995 NPT
Review and Extension Conference. Countervailing factors include that the position was not made publicly
available prior to opening of the treaty for signature and that it was not formally communicated in connection
with US signature and ratification.
Also relevant are the object and purpose of the NPT. 34 Its primary object is to prevent the spread of
nuclear weapons beyond those states having possessed and tested them by 1968. Its purpose in preventing
proliferation, as provided by the first and second preambular paragraphs, is to avoid enhancement of dangerof nuclear war.35 Because NATO nuclear sharing was already in place by 1968, it can be argued that it does
not represent proliferation subsequent to the establishment of the NPT regime. But, recent NATO expansion
33

Legality of Threat or Use of Nuclear Weapons, paras. 25, 30

34

The US position is sometimes referred to as the “war reservation”, but it seems doubtful that
it is technically a reservation. A reservation refers to a unilateral statement made by a state when signingor ratifying a treaty whereby it purports to exclude or to modify the legal effect of certain provisions of
the treaty. Art. 2(d), Vienna Convention on the Law of Treaties. Ratification is an international act
whereby a state establishes on the international plane its consent to be bound by a treaty. Art. 2(b). A
reservation must be formulated in writing and communicated to states entitled to be parties to a treaty.
Art. 23(1). If made upon signing it must be formally confirmed upon ratification. Art. 23(2). The
United States made no formal statement on the international plane concerning Articles I and II whensigning or ratifying. Consistent with its conduct, the United States apparently considers its position to be
an interpretation, not a reservation modifying the effect of Articles I and II. If, notwithstanding theforegoing, the US position is considered a reservation, an essential question is whether it is incompatible
with the object and purpose of the treaty (Art. 19(c)), and the analysis in the text is applicable.
35

The NPT begins as follows:

The States concluding this Treaty, hereinafter referred to as the “Parties to the Treaty”,
Considering the devastation that would be visited upon all mankind by a nuclear war
and the consequent need to make every effort to avert the danger of such a war and to
take measures to safeguard the security of peoples,Believing that the proliferation of nuclear weapons would seriously enhance the dangerof nuclear war, ...

12

raising the possibility of additional nuclear cooperation arrangements highlights the problem of accepting theprior arrangements. There are certainly strong arguments that nuclear sharing enhances the danger of nuclear
war. It provides a wider range of options for NATO nuclear use, and serves as a provocation to othernuclear weapon states. It also reinforces the political value of nuclear weapons, thereby promoting
proliferation. More broadly, the ongoing commitment to nuclear sharing, together with NATO’s recently
reaffimed policy of reliance on nuclear weapons including possible first use, is contrary to the general illegalityof threat of nuclear weapons as found by the International Court of Justice as well as the Article VI
requirement of good faith negotiation of nuclear disarmament. On the other side, there are familiar argumentsof “deterrence", “stability”, and incremental progress towards the “ultimate” objective of elimination.
At a minimum, then, there are serious questions about the legality of nuclear sharing. The best way toresolve those questions would be to withdraw US nuclear weapons from deployment in European countries
and to terminate nuclear sharing arrangements. The United States should also unequivocally renounce theview that the NPT becomes ineffective in time of war.

13