Debating Article VI

Christopher Ford’s article, “Debating Disarmament, Interpreting Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons,” (Nonproliferation Review, Vol. 14, No. 3, November 2007), ends with a disclaimer, “The views expressed in this article are the author’s own and do not necessarily represent those of the State Department or the U.S. government.” Ford’s views, however, seem extremely closely aligned with those of the State Department, which he joined in 2003 and where he currently serves as the United States Special Representative for Nuclear Nonproliferation.

Article VI of the Non-Proliferation Treaty (NPT) states: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to the 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.” This article is the principal tradeoff in the NPT, in which the non-nuclear weapon states are given the promise that the playing field will be leveled by “negotiations in good faith on…nuclear disarmament.”

When the International Court of Justice (ICJ) considered the legality of the threat or use of nuclear weapons in 1996, the judges unanimously concluded, based upon Article VI of the NPT, that “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” [Emphasis added.]

In his article, Ford seeks to substitute his judgment for that of the ICJ, the world’s highest judicial body. He dismisses the view of the Court on the nuclear disarmament obligation as mere dictum, “generally… regarded as having minimal authority or value as precedent.” But, in fact, the Court viewed this portion of its opinion as essential to close the gap in international law that they found in the threat or use of nuclear weapons “in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”

Ford uses his impressive rhetorical skills to place emphasis on the word “pursue,” making the claim that “pursuit” of negotiation in good faith is all that is required of a party. He uses the term “pursue” to mean “to seek” or “to chase,” rather than in the sense of “to carry something out” or “to continue with something,” meanings that the ICJ likely had in mind in their reaching their opinion that negotiations must not only be pursued but brought “to a conclusion.”

It seems unlikely that the non-nuclear weapon states would have been (or now would be) satisfied with Ford’s view of “pursue.” Like the bold lover on the Grecian Urn in Keat’s famous Ode, the non-nuclear weapon states would be denied their reward “[t]hough winning near the goal.” In other words, they could only watch as the nuclear weapons states pursued the goal of negotiations on nuclear disarmament without real hope that the goal would ever be reached.

Article VI of the NPT makes far more sense when the emphasis is placed on the “good faith” of the parties in pursuing (as in carrying out) negotiations for nuclear disarmament. Ford’s parsing of words literally deprives Article VI of meaning as he seeks to exonerate the US for its failure to act in good faith.

Ford is predictably also dismissive of the 13 Practical Steps for Nuclear Disarmament that were adopted by consensus in the Final Document of the 2000 NPT Review Conference. He argues, “Structurally, contextually, and grammatically…the 13 Steps amount to no more than any other political declaration by a convocation of national representatives: their statement of belief, at that time, regarding what would be best.” Since the United States has also been dismissive of the 13 Practical Steps, Ford is certainly in line with US policy on this point.

The 13 Practical Steps call for, inter alia, ratification of the Comprehensive Test Ban Treaty (CTBT), applying the principle of irreversibility to nuclear disarmament, conclusion of START III, preserving and strengthening the Anti-Ballistic Missile (ABM) Treaty, and “[a]n unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI.”

The United States has, in fact, failed to ratify the CTBT, explicitly not applied the principle of irreversibility in negotiating the Strategic Offensive Reductions Treaty (SORT) in 2002, failed to negotiate START III with the Russians, withdrawn from the ABM Treaty to pursue missile defenses and space weaponization, and not made the “unequivocal undertaking…to which all states are committed under Article VI.”

Despite Mr. Ford’s protestations concerning Article VI and his argument that “the United States has made enormous progress” on nuclear disarmament, the facts remain that the US still relies heavily on its nuclear arsenal, is the only country capable of leading the way toward a world free of nuclear weapons, and has not done nearly enough to rid the world nor its own citizens of the existential threats posed by nuclear weapons. The US, for example, has continued to maintain a significant portion of its nuclear arsenal on hair-trigger alert, has sought to develop a new generation of nuclear weapons, has failed to initiate a policy of No First Use of nuclear weapons, and in 2007 voted against all 15 nuclear disarmament measures that came before the United Nations General Assembly.

From a practical point of view, this means that other nuclear weapons states will continue to rely upon their nuclear arms for what they believe provides for their security. In fact, as the nuclear weapons states continue to rely upon these weapons, other states will choose to provide such “security” for themselves, and nuclear weapons will proliferate, eventually ending up in the hands of extremist organizations that cannot be deterred from using them against even the most powerful states. In other words, while Mr. Ford’s rationalizations and analysis (“…it would be unfair and inaccurate to extend any special Article VI compliance criticism to the United States”) may provide comforting justifications for some, they in fact contribute to a sense of nuclear complacency that undermines US security and progress on nuclear disarmament.

It will not be possible to maintain indefinitely the double standards on which the NPT was formulated and which can only be cured by achieving the nuclear disarmament provision in Article VI of the treaty. This will require substantially more effort than pursuing good faith negotiations; it will require actual good faith. US leaders would do well to set aside Mr. Ford’s approach to papering over US failures to act in good faith with a thin veneer of rhetorical justifications and legal advocacy, and get down to the serious business of leading a global effort to eliminate nuclear weapons before they eliminate us.