Bush’s Nuclear Weapons Policy: Where the Rule of Law Doesn’t Matter

Less than three weeks after the horrid events of September 11, the Department of Defense published its Quadrennial Review, an official document that discusses in detail U.S. defense strategies. The review is the work of senior Pentagon officials–both military and civilian–who conferred extensively with the president. This key military document asserts that “the U.S. leadership is premised on sustaining an international system that is respectful of the rule of law.” But with recent developments in U.S. nuclear weapons policy, as in other policy arenas, the Bush administration has set an agenda that flagrantly ignores international law.

President Bush’s announcement in December 2001 that the U.S. would unilaterally withdraw from the 1972 Anti-Ballistic Missile Treaty, that it had signed with the former Soviet Union, has been viewed with much skepticism by some countries. In January, the administration dropped a second shoe. Leaks from the administration’s Nuclear Posture Review revealed that the U.S. plan to “cut” the number of its nuclear weapons relied on storing rather than destroying many of them, that underground nuclear testing in the future cannot be ruled out, and that the preparation time to perform nuclear testing needed to be reduced, perhaps to just months.

Leaks from the Nuclear Posture Review also revealed that the Bush administration had still another shoe that it was willing to drop. The review contained language that indicated that the Bush administration has authorized the Defense Department to develop plans for using nuclear weapons on seven countries–five of which are nonnuclear nations. Significantly, these five nations–Iran, Iraq, Syria, Libya, and North Korea–are parties to the Nuclear Nonproliferation Treaty (NPT) that took effect in 1970.

Because they are parties to NPT, these nations have certain rights afforded to them by international law. The UN Security Council has provided the nonnuclear weapons states with specific assurances, most recently resolution 984, unanimously passed in April 1995. This binding resolution protects the nonnuclear weapons states from the use or threatened use of nuclear weapons by the nuclear weapons states. Building on one of the three decisions that came out of the 1995 NPT Review Conference, the 2000 NPT Review Conference reaffirmed the nuclear weapons states’ commitment to resolution 984, while emphasizing that such a commitment strengthens international nonproliferation.

The Bush administration’s authorization to develop contingency plans to use nuclear weapons against Iran, Iraq, Syria, Libya, and North Korea marks a grave escalation in U.S. military strategy. Along with the decision to withdraw from the ABM Treaty, which could spark a new arms race, these threats also undermine the nuclear disarmament “principle of irreversibility” that came out of the 2000 NPT Review Conference. The prospect of a new arms race in combination with the threat to use nuclear weapons against nonnuclear weapons states that have acceded to NPT constitutes a serious retrogression in the prospects for nuclear disarmament.

The Bush administration’s aversion to the Comprehensive Test Ban Treaty (CTBT) was clear at the very latest by mid-summer last year. Driven by the far right, the Bush White House sought to distance the nation from the 1996 accord that the Republican-controlled Senate failed to ratify in 1999. The far right has long based its opposition to the CTBT on the claim of a continuing need for the United States to be able to check the reliability and safety of nuclear weapons.

Opposing the CTBT is one thing; ignoring international law is quite another. Both the NPT and the Limited Test Ban Treaty, which entered into force in 1963, unequivocally state that countries will continue negotiations aimed at ending all explosions of nuclear weapons. Washington ignored both of these binding multilateral treaties when it failed to send a representative to New York in November 2001 to participate in the second Conference on Facilitating the Entry into Force of the Comprehensive Nuclear Test Ban Treaty. A total of 118 states, plus Palestine, participated in the conference. Because the Bush administration has made clear that it does not support the CTBT, it did not send a representative to the conference.

By not sending a representative, the Bush White House was unable to participate in discussions intended to “promote the entry into force” of the CTBT. Its absence from the conference placed the U.S. in the same minuscule category as North Korea and Syria, which also did not participate in the conference. Unlike the United States, however, neither North Korea nor Syria has signed the CTBT.

The Bush administration’s nuclear weapons policy is not consistent with a 1996 World Court advisory opinion in which the fourteen judges unanimously concurred that states have a responsibility to work “in good faith” toward the complete elimination of nuclear weapons. Although the World Court did not specifically conclude that the threat or use of nuclear weapons would violate international law in “an extreme circumstance” when a nation must defend itself, all fourteen judges did agree that the threatened use of nuclear weapons would have to be consistent with Article 2, paragraph 4, and Article 51 of the UN charter. Article 2, paragraph 4 of the UN charter states that nations should not resort to the threat or use of nuclear weapons in their relations with other governments, while Article 51 provides countries with the legitimate right of self-defense. But Article 51 bases this right of self-defense not on any preemptive military strategy but on the condition that there be a military attack directed against the responding nation. In effect, the Nuclear Posture Review constitutes a threat to use nuclear weapons against nonnuclear nations.

The Bush administration would have a difficult time mounting a convincing argument that its nuclear weapons policy conforms to international law. Should other countries follow the U.S. lead, nuclear proliferation will continue and the prospects for the use of nuclear weapons will certainly increase.