Sunday, August 9, 2009

Nuclear Non-proliferation treaties : democracies and international law enforcement.


by Marc Cogen


Looking at the international debate on the nuclear weapons policy of North Korea and Iran, one can only wonder what public opinion demands from our leaders. Newspapers are very much concerned about the economic-financial crisis, the too fat bank bonuses, unemployment and home prices. A nuclear Iran and a nuclear North Korea are no front news. So, what do democracies think about an ongoing nuclear arms race in Asia and the Middle East? It is fair to say that voters of democracies feel pretty safe under the NATO umbrella, the newly rebuilt U.S. homeland security, or because of the physical distance to the unfolding drama. The word indifference is a rather accurate word to describe the apathy in Western democracies. This is quite a new strategy looking back at the 1930s when public opinion was reacting in a very different way to an arms race in Europe and Asia. In that time the 'peace movements' were at their zenith and demanded loudly and through actions 'neutrality' and 'keeping the country out of any war'. Under their influence U.S. Congress passed even the 'Neutrality Act' in 1937. There is no need to remind that such public pressure and hesitant government policy led to the demise of the Versailles treaty system. The same demand of neutrality and non-interference is again surfacing in democracies although it is now translated into a deafening silence about the issue of the nuclear arms race in Asia and the Middle East. No street actions can be seen in Paris, Brussels or New York to demand that North Korea or Iran should be stopped in their illegal nuclear ambitions.


Governments are well aware that the ongoing nuclear arms race by totalitarian regimes in Tehran and Pyongyang is like a ticking time bomb. They know that appeasement policy doesn't work since our elected leaders are holding master degrees, such as lawyer Barack Obama of the Law Faculty of Harvard or Hillary Clinton who graduated from Yale Law School. They have read books and articles about the fiasco of Versailles. And they want to buy time by using and deploying their army of diplomats and envoys at their disposal. One of the places diplomats feel best is at the headquarters of the United Nations where they are members of the same club of government representatives, and with some order as to rank and position. There they discuss and negotiate about important world affairs, preferably by adopting resolutions. Government leaders/lawyers of democracies should take care that they are not caught in a diplomatic carrousel of postponement and a semblance of normality. When it comes to nuclear arms, nothing is normal and every move can necessitate an urgent counter-move. This is not exactly the kind of context in which diplomats are used to work. The diplomatic machinery is slow and bureaucratic, only comparable with the judiciary.


If there is any question relevant to nuclear arms, it is the question which countries are entitled to nuclear warheads according to international law. Every student of an introductory course of international law knows that only a handful of states do have this right: the five permanent members of the UN Security Council, which are state parties to the Nuclear Non-Proliferation Treaty (NPT), and three states which have never accepted or ratified NPT: India, Pakistan and Israel. All other states have ratified NPT and are legally bound not to acquire or develop nuclear weapons. Lawyers, who happen to be our elected leaders, should keep in mind international law when dealing with the current illegal nuclear arms race by Tehran and Pyongyang. The members of the government of China (i.e. the standing committee of the central committee of the Communist Party) are engineers but I am convinced that they too appreciate the basic rules of law in the world. And although China is not a democracy , it is one of the five permanent members of the UN Security Council and therefore it has its share of the responsibilities regarding nuclear weapons in the world, notwithstanding the 48-year old military assistance treaty between China and North Korea. Russia is a member of the Council of Europe – the club of European democracies - and is a permanent member of the UN Security Council. It has pledged to be a democracy and to uphold the rule of law in the world.


So, what are the lessons from the past based on the 20th century experience with international law?


The first lesson is that governments of democracies have the political duty to lead their nations instead of following erratic public opinion polls. Public opinion and the electorate are volatile, always acting in the short time. Long-term planning and judgment of long-term implications do not fit in the mindset of voters in free democracies. This is inherently problematic when it comes to a nuclear arms race. Tehran and Pyongyang, whose regimes do not depend on free voters, are developing nuclear warheads over a long period of time and by taking numerous  small steps. This allows them to proceed with stealth and to undermine any action of public opinion in democracies. There is no immediate and recognizable threat or attack visible. Since we cannot change the nature of electoral systems in democracies, our governments and political parties have the great responsibility of projecting a clear public policy against the nuclear arms race, informing the public about the invisible and inherent dangers and the appropriate responses which are needed. NGOs and big media concerns are important players but governments should set the political agenda. The NGO world is better in criticizing Western governments – by which they are financed to a large extent -  than formulating a balanced policy which takes into account all essential elements.


The second lesson is that treaties should be implemented in good faith and, in case of persistent non-compliance, recourse to force can be the only remedy. Treaties are freely accepted and enforceable agreements which should not be crossed unpunished. This is all the more true when it comes to nuclear non-proliferation treaties which are at the heart of the global security system. The 'Nuclear Non-proliferation Treaty' (NPT) is the cornerstone of the nuclear non-proliferation regime. Transparency and compliance are monitored by the International Atomic Energy Agency in Vienna, but the state parties are the ones responsible for making political decisions in case of violations. The UN Security Council is competent to deal with this matter although states retain the right to self-defense in case of a threat to national security. The right of self-defense is an inherent right of any state, even independent of the UN Charter which merely confirms the existence of the right. The question of timely action with regard to upholding the nuclear non-proliferation is at the heart of the matter. The NPT regime is intended to prevent the spread of nuclear weapons, not to react in case of an illegal acquisition. The reason is clear: states or regimes with nuclear weapons escalate the danger of a nuclear war considerably. Other states might follow their example in order to protect themselves, thus triggering a nuclear arms race. NPT has been upheld for fifty years not because of a lack of nuclear know-how in the world, but because states want to keep the NPT regime intact and preventing a nuclear arms race.


The third lesson is that we should keep focusing on the security policy of preventing massive damage to our states and citizens. The essence of any security policy of democracies is that we cannot allow the risk of a kind of 9/11 attack or a nuclear Pearl Harbor attack in an age of nuclear proliferation and the potential of a nuclear war. Preemption and decisive action is politically more responsible than the wait-and-see attitude in our time. UN Security Council Resolution 1540 (2004) recognizes this danger with regard to the Taliban and Al Qaeda, but the same danger exists with regard to reckless and irresponsible states. The UN Security Council legitimized the use of force with regard to terrorist organizations but did not take the same express viewpoint with regard to totalitarian regimes seeking nuclear weapons and financing terrorist organizations. Tehran is the major sponsor in the world of terrorist organizations and actively seeking nuclear weapons, whereas Pyongyang is willing to sell its nuclear technology to anybody with enough cash money. There are enough reported and documented cases on the international misbehavior of Tehran and Pyongyang.


Iran became a state party to NPT in 1970 and concluded a Safeguards Agreement with the International Atomic Energy Agency in 1974. Meanwhile Iran, seeking to develop nuclear weapons by deceit, is condemned by UN Security Council Resolution 1803 (2008) which, inter alia, states that:



'Iran has not established full and sustained suspension of all enrichment related and reprocessing activities and heavy water-related projects as set out in resolution 1696 (2006), 1737 (2006), and 1747 (2007), nor resumed its cooperation with the IAEA under the Additional Protocol, nor taken the other steps required by the IAEA Board of Governors, nor complied with the provisions of Security Council resolution 1696 (2006), 1737 (2006) and 1747 (2007) and which are essential to build confidence, and deploring Iran's refusal to take these steps'


Iran is now under UN sanctions but its nuclear program is not halted; as the result of UN sanctions Iran needs a little more time to develop its nuclear arsenal which is foreseen at around 2010. On July 21, 2009 Mr. Ali Ahbar Salehi, who holds a doctorate in nuclear physics from the Massachusetts Institute of Technology, has been appointed by Iranian President Ahmadinejad as the new head of the Iranian Atomic Energy Organisation. That same day Mr. Salehi declared that the West should end 'its hostility towards Tehran and close the nuclear file.' Mr. Salehi is a hardliner and replaced Mr. Aghazadeh who had chosen side with Mr. Mousavi, the political opponent of Mr. Ahmadinejad. This is an omen for the use of diplomacy as an effective means of stopping Tehran's nuclear weapons ambition.


A similar story is North Korea which is already in possession of nuclear warheads and related ballistic missiles. U.S. Admiral Keating declared that North Korea does have intercontinental ballistic missiles that can reach the United States, in particular Hawaii and the territories of the United States in the Pacific – see 'Political Transcript Wire of December 19, 2008. Resolution 1718 of the UN Security Council, reacting to North Korea's underground nuclear weapon tests. The Security Council recalled that North Korea (DPRK) could not acquire the status of a nuclear weapons state under NPT. Even more important, the same resolution determined that a threat to international peace and security exists and asserted its right to take binding decisions. In the same resolution the UN Security Council denied North Korea the right to withdraw from NPT, acting under Chapter VII of the UN Charter. Further the resolution demanded that North Korea returns to the NPT and the IAEA safeguards. The resolution fell short of allowing use of force and instead installed a sanctions regime which has been totally ineffective. Again, North Korea refused to accept NPT and relevant UNSC resolutions.




There is no doubt that two states, Iran and North Korea, are determined to acquire and develop nuclear warheads. The UN sanctions regime did not work; both rogue states have many resources at their disposal to hire nuclear scientists and related equipment. After all they have the whole state apparatus at their disposal to conduct this kind of illegal activity, and intimidation of any political opposition at home. The question put forward to democracies is simple: if we regard NPT as the cornerstone of post-WWII  security, then we have to decide how to prevent and even dismantle illegal nuclear weapons programs. Diplomats have been working for years to attaining this objective but failed. Military actions have become the only realistic approach to uphold NPT and restore its authority. If we fail to do so, our time will witness a second Versailles scenario: notwithstanding numerous resolutions condemning aggressor states, these states go ahead with their ideological and military objectives. Without decisive use of force, we may only expect a nuclear war, a massive amount of victims and, yes reaction by democracies when it is already too late for many of our citizens. This might be the ultimate lesson learnt from the Versailles fiasco.



Marc Cogen is a Professor of International Law Gent University, Belgium

Copyright - Original materials copyright (c) by the authors.



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