France has ratified the Statute of the International Criminal Court on the purported and wholly insupportable understanding that its war crimes provisions "relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons".5
The 2000 Annual Report of the US Secretary of Defense goes on at some length about the policy of deterrence, stating:
The U.S. nuclear posture also contributes substantially to the ability to deter aggression against the United States, its forces abroad, and its allies and friends. Although the prominence of nuclear weapons in the nation's defense has diminished since the end of the Cold War, nuclear weapons remain important as one of a range of responses available to deal with threats or use of NBC [nuclear, biological, and chemical] weapons. They also serve as a hedge against the uncertain futures of existing nuclear powers and as a means of upholding U.S. security commitments to U.S. allies.
After reaffirming US nuclear participation in NATO, the report then states that "for the foreseeable future, the United States will retain a robust triad of sufficient nuclear forces." It goes on to say that the goals of deterrence can be achieved at lower force levels.6 In other words, and I want to emphasize this point, the US government is perfectly clear that the START process is not going to lead to the end of deterrence in any respect and that the United States is planning to retain force levels sufficient to carry out all the missions it associates with deterrence.
Reflecting the national commitments of the United States, the United Kingdom, and France, NATO's 1999 Strategic Concept says that NATO "will maintain for the foreseeable future an appropriate mix of nuclear and conventional forces based in Europe and kept up to date where necessary" and that nuclear weapons "make a unique contribution in rendering the risks of aggression against the Alliance incalculable and unacceptable".
The Russian National Security Concept of January 10, 2000, states that Russia "should possess nuclear forces that are capable of guaranteeing infliction of the desired extent of damage against any aggressor state or coalition of states in any conditions and circumstances."
There is much more to be said about how the nuclear weapons states are not complying with Article VI and that can be found throughout NGO documents at this NPT Review Conference, so I'm not going to go into that point further. I do want to mention that the Lawyers' Committee on Nuclear Policy has put together a collection of national policy statements showing a commitment to maintaining nuclear deterrence and nuclear forces for the foreseeable future.7
Nuclear Weapons' Distorting Effects on International Law
Now I want to turn, briefly, to a broader question: what is the effect of nuclear weapons on the larger structure of international law? This is something that is perhaps not as familiar to people here today. The ICJ opinion is very carefully written and warrants close reading. Paragraph 98 says:
In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons.
Let me give you a couple of examples. In World War II, the international law governing the conduct of warfare, humanitarian law, was totally inadequate to the kinds of strategic bombing that were being carried out. In Protocol I to the Geneva Conventions, most states in the world sought to rectify this deficiency in international law. Protocol I was concluded in 1977. However, the Red Cross, in order to persuade the United States, France, the United Kingdom, and Russia to go along with these negotiations, had to make a statement essentially to the effect that the negotiations on Protocol I were not intended to broach questions relating to nuclear, chemical and biological weapons. This was the price for getting negotiations underway. Protocol I as negotiated is a comprehensive codification of humanitarian law, among other things protecting civilians from the effects of warfare. It's really quite good. But the aforementioned nuclear weapons states have insisted that provisions of Protocol I not reflecting pre-existing international law do not apply to nuclear weapons. So before the International Court of Justice they argued that the Protocol's prohibitions on reprisals against civilians and on damaging the environment do not apply to nuclear weapons. The United Kingdom and Russia have ratified Protocol I, and France is reportedly poised to do so, but the United States still has not. One of the reasons - not the only reason, but a significant reason - is the Pentagon's fear of the effects of Protocol I on the US nuclear posture. So you can see, as the ICJ said, that nuclear weapons are introducing uncertainty and instability into humanitarian law generally.
We saw the same problem in the summer of 1998 when the Statute of the International Criminal Court Statute was negotiated. The United States, United Kingdom, France and Russia, of course, refused proposals that were supported by most non-nuclear weapon countries in the world that would have expressly criminalized the use of nuclear weapons. This was an ongoing controversy throughout the five weeks of the negotiations. Finally, when it came down to the end, some non-nuclear weapons states said that if nuclear weapons aren't going to be expressly criminalized by the Statute, then we don't want references to the criminalization of chemical and biological weapons, as they are defined in the Chemical Weapons Convention and the Biological Weapons Convention. Fortunately, and I won't go into the details, the ICC Statute as written still does expressly apply to chemical weapons, but whether it does so with respect to biological weapons is in doubt. So again, very distorting and disturbing effects on international law generally. I should add here that while the Statute does not expressly criminalize the use of nuclear weapons, its general provisions on war crimes and crimes against humanity do apply and would make use criminal in most or all circumstances.8
With respect to the United Nations Charter, there is the unfortunate identification of the NPT nuclear weapons states (US, UK, France, Russia, China) with the Permanent Five. I think this is a historical accident. The UN Charter was finalized before the United States even tested a nuclear weapon, but nonetheless this identification has evolved. It means that there is a tendency for elements in some countries to think, "If we want to be a permanent member, we better get some nuclear weapons." Or there's a tendency for elements in Britain or France to think, "If we want to stay permanent members, we'd better not give up our nuclear weapons." The identification of the P-5 with the Nuclear Five also erodes the legitimacy of the Security Council and the United Nations, undermining the central international institutional arrangements for global security.
1 Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Rep. 1997, para. 142; http://www.icj-cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_frame.htm.
2 I.C.J. Reports 1969, p. 47; summary at http://www.icj-cij.org/icjwww/idecisions/isummaries/icssummary690220.htm.
3 André Nollkaemper, Professor of Public International Law, University of Amsterdam; Phon van den Biesen, international lawyer and secretary of IALANA; Martina Siegfried and Marija Davidovic, law students, University of Amsterdam. All worked on a draft application to the International Court of Justice to compel the nuclear weapon states to comply with Article VI, an executive summary of which is available from the Lawyers' Committee on Nuclear Policy.
4 Statement of Ambassador Robert T. Grey, Jr., February 17, 2000 (emphasis added).
5 See "The French 'Interpretative Declaration' Regarding Nuclear Weapons," July 5, 2000, http://www.lcnp.org/global/french.htm.
6 Http://www.dtic.mil/execsec/adr2000/chap1.html (emphasis added).
7 "Policy Statements Contradicting Article VI of the Nuclear Non-Proliferation Treaty," April 20, 2000, http://www.lcnp.org/disarmament/polsta4.htm.
8 See generally "The French 'Interpretative Declaration' Regarding Nuclear Weapons," July 5, 2000, http://www.lcnp.org/global/french.htm; "The International Criminal Court, Weapons Of Mass Destruction, Ngos, and Other Issues: A Report on the Negotiations and the Statute," rev. April 1999, http://www.lcnp.org/global/icc.htm.