A new role for the Security Council in Nuclear Disarmament

“The nuclear powers could…expand the amount of information they publish about the size of their arsenals, stocks of fissile material and specific disarmament achievements. The lack of an authoritative estimate of the total number of nuclear weapons testifies to the need for greater transparency.” UN Secretary-General Ban Ki-moon[i]

To be sure, it is a modest call to action. Obviously we need nuclear weapon states (NWS) to disarm, not just to provide more information about their arsenals. But, in fact, dramatically improved transparency (linked to verification) will be central to progress in nuclear disarmament, and the UN Security Council must finally rise to the transparency challenge issued by the Secretary-General.

For the spreading and welcome calls for nuclear abolition (most recently Global Zero, http://www.globalzero.org/) to bear fruit the UNSC’s permanent five (P5) will have to embrace with rather more enthusiasm than they have shown to date the principle of openness with regard to their weapons programs and intentions for disarmament. To be fair they have made some progress. The Nuclear Non-Proliferation Treaty review process has extracted some limited transparency concessions from the P5.

The 1995 agreement to extend indefinitely the NPT rested fundamentally on the principle of “permanence with accountability.” Accountability was to be strengthened through refinements to the review process, and at the 2000 Review Conference a new reporting requirement was added. Step 12 of the Final Document’s “practical steps” to implement the Treaty’s disarmament provisions called for “regular reports.”

The reporting requirement was framed by the demands of three internationally agreed nuclear disarmament decisions:

· “cessation of the nuclear arms race” (Article VI of the NPT);[ii]

· “reduction of nuclear weapons globally, with the ultimate goals of eliminating those weapons” (Paragraph 4[c] of the 1995 Decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”);[iii] and

· the “obligation to achieve a precise result—nuclear disarmament in all its aspects” (the advisory opinion of the International Court of Justice of 8 July 1996).[iv]

The P5 have certainly resisted the idea that they are actually obliged to report on their actions, and progress, in meeting those three objectives. China and Russia are the only ones to have submitted formal reports (once in 2005). The others have refused to submit reports that they specifically identify as being in response to the 2000 agreement on reporting, but, at the same time, all five regularly report generally and informally to NPT review process meetings (including annual preparatory committees) by circulating national statements, working papers, fact sheets, and other background material. And it must be said that such reporting, while it varies considerably, has increased in detail and scope since 2000.

The principle of mutual accountability has been slow in developing within the NPT. The degree to which the reporting obligation is honored by the P5 is the degree to which they actually regard themselves as accountable to other States Parties to the Treaty – and to date it’s clear that the idea that they are beholden to any other state in these matters has clearly not caught on. Non-nuclear weapon States Parties to the Treaty on the other hand see reporting as a formal and essential expression of accountability to other States Parties. They expect reporting to become much more detailed and systematic and to mature into an effective tool by which States Parties can assess each other’s compliance with Treaty obligations.

What the nature and extent of reporting should be has received some discussion[v] in the context of the NPT along the following lines:

1. General assessments of developments and trends relevant to the implementation of the Treaty;

2. Information on details of national nuclear holdings and doctrines, for example:

• transfers or acquisition of nuclear materials,

• holdings of fissile materials,

• nuclear facilities of all kinds (military and civilian),

• holdings and production/dismantling of nuclear weapons (including the numbers, types, and yields of warheads, as well as numbers and types of delivery vehicles),

• operational status of all weapons held, and

• nuclear weapons doctrines (including security assurances) and policies to govern the use of those weapons;

3. descriptions of disarmament policies, initiatives and programs;

4. identification of advocacy and diplomatic priorities;

5. information on agreements reached and commitments undertaken;

6. regular declarations of dompliance – annual public assurances to other signatories, on an article-by-article basis, of their full compliance with the Treaty.

Accountability is the fundamental point of reporting, and reporting even at current minimal levels has at least begun to help States to better understand the approaches and activities of other States in the NPT and to generate a general attitude that each owes the others an accounting of what they are doing to implement and strengthen the disarmament and nonproliferation regime.

Even though the NPT now calls for regular reporting, it lacks the institutional infrastructure to even receive such reports, much less formulate responses to them. That’s where the Security Council could come in.

The Council has on more than one occasion called on all States to meet the requirements of the Treaties they have signed, and reporting is one means of recording and assessing compliance. In the absence of a permanent secretariat for the NPT to receive reports, the “regular reports” of NPT States could and should go directly to the Security Council. The Secretary-General should then be tasked to compile and assess them and then report annually to the Council on the state of progress toward meeting the international community’s agreed nuclear disarmament objectives.

Until resolution 1540[vi] the Security Council had never requested or received reports on nuclear weapons and disarmament, to serve as the basis for an assessment of progress in pursuit of the objectives set by Articles 11 and 26, which mandate the General Assembly and the Security Council to pursue the regulation and reduction of arms (it has, of course, received reports on specific horizontal nonproliferation situations on its agenda, such as that in Iraq).[vii] The Council’s resolution 487, on 19 June 1981, in response to Israel’s attack on Iraq’s nuclear research reactor called on Israel to place its nuclear facilities under safeguards and asked the Secretary-General to inform the Council of implementation of the resolution but was not followed up. Nor has the Council called for any updates on progress in meeting “the need for all Member States to fulfill their obligations in relation to arms control and disarmament,” as its 1992 Summit statement put it.

As the Egyptian diplomat Nabil Elaraby put it in 1996, given that the Council Summit (in 1992) concluded that “the proliferation of all weapons of mass destruction constitutes a threat to international peace and security,” it would be reasonable to “expect the Council to look at that statement, adopted at the highest possible level, and see if it should do something about it.”[viii] Lucy Webster, former political affairs officer with the UN office of disarmament, has proposed the appointment by the Secretary-General of a special rapporteur to investigate and submit regular reports to the Security Council on nuclear weapons proliferation.[ix] Other analysts have proposed that the Security Council elaborate benchmarks to help it to determine, according to objective criteria, “whether to designate a situation one of nuclear proliferation, and therefore a threat to the peace, triggering chapter VII.”[x]

Pierre Goldschmidt, the former deputy director general of the IAEA, calls for horizontal nonproliferation enforcement mechanisms that are objective and consistently applied: “The most effective, unbiased, and feasible way to establish a legal basis for the necessary verification measures in circumstances of non-compliance is for the United Nations Security Council (UNSC) to adopt (under Chapter VII of the UN Charter) a generic (i.e. not state -specific) and legally binding resolution stating that if a state is reported by the IAEA to be in non-compliance, a standard set of actions would result” (emphasis in the original).[xi]

A similar mechanism, along with objective benchmarks, is required to assess compliance and define noncompliance regarding Article VI. Goldschmidt points out that resolution 1540 “provides a framework within which nations can question one another about activities that suggest illicit trafficking or other proscribed activity.”[xii] The Security Council could set up a similar mechanism to facilitate the same kind of questioning and accountability for getting first-hand accounts of Article VI compliance efforts. The priority disarmament agenda articulated in the NPT review process essentially defines key current benchmarks for progress and there is no doubt that in the context of the NPT review process, the P5 already have an obligation to outline steps taken toward compliance.

There remains the obvious but critical question of political will. It is true that consensus against horizontal proliferation is well advanced within the P5. But they should also obviously be aware that any moves toward tougher and coercive approaches to horizontal nonproliferation compliance will be increasingly challenged by NNWS members if compliance with Article VI obligations continues to be kept away from multilateral scrutiny.

The Security Council should thus pass a resolution to formalize the understanding that all nuclear proliferation is a threat to international peace and security, and within that to set the framework for regular reports, deliberations on the implications of those reports, and efforts to agree on follow-on undertakings to meet agreed benchmarks.

Transparency is not compliance, but it is a large step toward accountability, which in turn encourages compliance. In the absence of effective legislative, judicial, or enforcement action on disarmament, a Security Council commitment to promoting and formalizing transparency and accountability could still encourage discernable progress toward the “unequivocal undertaking,” agreed by them in 2000, “to accomplish the total elimination of nuclear weapons” as promised in Article VI of the NPT.

[i] UN Secretary-General Ban Ki-moon, in and address to the EastWest Institute (EWI), New York. 24 October 2008.

[ii] Non-Proliferation Treaty, Article VI: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.”

[iii] 1995 NPT Decisions and Resolution, Decision 2: Principles and Objectives for Nuclear Non-Proliferation and Disarmament: 4 (c) “The determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons, and by all States of general and complete disarmament under strict and effective international control.”

[iv] The Advisory Opinion of the International Court of Justice of 8 July 1996 [relevant excerpts]: Paragraph 99: “The legal import of the (Article VI) obligation goes beyond that of a mere obligation of conduct [of negotiations in good faith]; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely the pursuit of negotiations in good faith. Paragraph 100: This two-fold obligation to pursue and to conclude negotiations formally concerns the [then] 18 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community.”

[v] See the Ploughshares report, Transparency and Accountability: Reporting: NPT Reporting 2002-2007 (http://www.ploughshares.ca/libraries/Abolish/NPTreporting02-07.pdf).

[vi] Resolution 1540 requires States to take extensive measures, including reporting, to prevent the diversion of weapons of mass destruction to non-state actors and to “refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.”

[vii] Early on, after the formation of the Atomic Energy Commission in 1946, the Council received reports from the Commission but simply passed them along to the General Assembly. Kono, p. 83.

[viii] Nabil Elaraby, “The Security Council and Nuclear Weapons,” 28 May 1996 presentation to the NGO Working Group on the Security Council, Global Policy Forum, www.globalpolicy.org/security/docs/elaraby.htm.

[ix] Lucy Webster, “The Security Council and Nuclear Weapons,” 28 May 1996 presentation to the NGO Working Group on the Security Council, Global Policy Forum.

[x] Jack I. Garvey, “A New Architecture for the Non-Proliferation of Nuclear Weapons,” Journal of Conflict and Security Law, Volume 12, Number 3, 2007, 339-357.

[xi] Pierre Goldschmidt, “Priority Steps to Strengthen the Nonproliferation Regime,” Policy Outlook, February 2007, Carnegies Endowment for International Peace, www.carnegieendowment.org/files/goldschmidt_priority_steps_final.pdf.

[xii] Peter van Ham and Olivia Bosch, “Global Non-Proliferation and Counter-Terrorism: The Role of Resolution 1540 and Its Implications,” in Global Non-Proliferation and Counter-Terrorism: The Role of Resolution 1540 and Its Implications, eds., Peter van Ham and Olivia Bosch (Brookings Institution Press, Chatham House and Clingendael Institute 2007), 19-20.

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