Nuclear rights and duties

By Kjølv Egeland 

Article 19 of the nuclear weapons ban currently under negotiation at the UN in New York City raised eyebrows when the first draft of the agreement was released a few weeks ago. The convention, it says, would ‘not affect the rights and obligations of the States Parties [sic] under the Treaty on the Non-Proliferation of Nuclear Weapons.’

Article 19, some worried, would allow the states defined by the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as ‘nuclear-weapon states’ to retain their arsenals.

But does the NPT really grant the nuclear-weapon states a ‘right’ to possess nuclear weapons? The short answer is ‘no’. But it is a bit complicated.

Adopted in 1968, the NPT codifies different rights and duties for its parties depending on their classification as ‘nuclear’ or ‘non-nuclear-weapon states’. While the states that had not exploded a nuclear explosive device by 1 January 1967 are prohibited from manufacturing or otherwise acquiring nuclear weapons, and are obligated to accept IAEA ‘safeguards’ so as to supply confidence that any civilian nuclear installations they run are not used for military purposes, the ‘nuclear weapon states’, that is, the states that had exploded a nuclear device prior to 1967, are committed not to aid or abet non-nuclear-weapon states in acquiring nuclear weapons. All parties are guaranteed a right to use nuclear technology for civilian purposes and committed to pursue negotiations on (1) effective measures for the cessation of the nuclear arms race, (2) nuclear disarmament, and (3) general and complete disarmament.

The wording of the NPT does not explicitly bestow on the nuclear-weapon states a positive right to possess nuclear weapons. On the contrary, the treaty’s inclusion of an obligation to negotiate towards disarmament suggests that the possession of nuclear weapons is at the very least discouraged as a long-term or permanent security strategy. At the same time, however, the treaty falls short of declaring the nuclear-weapon states’ possession of nuclear weapons unlawful. It also does not prohibit the nuclear-weapon states from expanding their arsenals. (Note that the NPT’s name is really quite misleading; the treaty would more appropriately have been called the ‘Treaty on the Non-Proliferation of Nuclear Weapon States’, not the ‘Treaty on the Non-Proliferation of Nuclear Weapons’.)

Although the NPT does not award the nuclear-weapon states a positive right to retain nuclear or other weapons of mass destruction, the treaty’s distinction between ‘nuclear-weapon’ and ‘non-nuclear-weapon’ states has by some been interpreted as an implicit recognition of the former’s ‘right’ to possess nuclear weapons. Former British prime minister Tony Blair, for example, once asserted that the NPT ‘makes it absolutely clear that Britain has the right to possess nuclear weapons.’ The Russian delegation to a recent diplomatic gathering postulated that the NPT makes it clear that ‘the presence of nuclear arsenals in five nuclear powers is completely legitimate.’

Both of these assertions are deceptive. The NPT does not actively grant the nuclear-weapon states a right to possess nuclear weapons. As pointed out above, the issue of the nuclear-weapon states’ possession is largely neglected. Yet this does not mean that the nuclear-weapon states do not, in some other way, enjoy a ‘right’ to possess nuclear weapons.

The idea of negotiating a nuclear non-proliferation treaty gained traction in the late 1950s. The presumption back then was that all states enjoyed a right – a ‘natural right’ – to acquire and possess nuclear weapons. The purpose of the NPT would be to revoke this right for those states that had not yet exercised it. The non-nuclear-weapon states, in the words of the Swedish official Alva Myrdal, would ‘sign away for ever in the non-proliferation treaty their right to test as well as to manufacture any nuclear devices.’ Indeed, this narrowing of the non-nuclear-weapon states’ natural rights was the justification for the inclusion of the treaty’s disarmament obligations as a quid pro quo: The non-nuclear-weapon states commitment to ‘sign away their right’ to develop nuclear weapons ‘must be coupled with a specific and binding commitment on the part of the nuclear-weapon Powers’ to ‘eliminate the stocks of nuclear weapons and their delivery vehicles’, argued Brazilian officials.

The idea that states have ‘natural rights’ emerged from early international legal theorists’ adaptation of the English philosopher Thomas Hobbes’ ideas to international legal affairs. In the pre-legal ‘state of nature’, Hobbes had argued, there existed a ‘natural Right of every man to every thing’. Since international relations took place in an environment similarly unconstrained by the authority of a single sovereign, legal scholars like Emer de Vattel thought states – like men and women in the state of nature – also had a natural right to all things. The task of international law, in this view, is to take away those rights the exercise of which is incompatible with a harmonious international society .

An alternative view is that states have no ‘natural rights’. In this view, the task of international law is not to tell states what they cannot do, but rather to tell them what they can do; states are only permitted to do whatever is explicitly provided for by international treaties or custom. Yet another view would be that while states may have ‘natural rights’, these rights do not extend to ‘all things’. The possession and use of weapons with the capacity to destroy human civilisation, one might think, would be more than a bridge too far.

Today, legal scholars are split on the general question of whether states have a right to do whatever is not explicitly prohibited or whether they only have a right to do what is explicitly sanctioned. Whether the nuclear-weapon states (and those states that are not parties to the NPT) today enjoy a positive right to possess nuclear weapons is and will likely remain a matter of some controversy. Yet it seems reasonably clear that any ‘right’ to possess nuclear weapons does not emanate from the NPT. The NPT, if anything, simply neglects to revoke the ‘natural nuclear rights’ of those states that had exploded a nuclear device by 1 January 1967.

All this said, the wording of article 19 can and should be improved so as to avoid any scope for confusion or extreme readings. There are many ways this may be done. As discussed by Ray Acheson (and proposed by some states in the negotiations), the Arms Trade Treaty contains language that might be borrowed: ‘The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing or future international agreements, to which they are parties, where those obligations are consistent with this Treaty’. Alternatively, article 19 could simply be deleted. Another, more offensive, option would be to include in the treaty an explicit rejection of the reading of the NPT as bestowing on the nuclear-weapon states a right to possess nuclear weapons.

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