Debating the 'no-first-use' option

LONDON: In July 1990, NATO governments stated that members 'can reduce their reliance on nuclear weapons' and develop 'a new NATO strategy making nuclear forces truly weapons of last resort'. However, this statement, titled the London Declaration on a Transformed North Atlantic Alliance, maintained NATO's longstanding deterrent doctrine, threatening to use nuclear weapons first if necessary. A major debate is now emerging in Washington over whether the U.S. and NATO should further reduce reliance on nuclear weapons and adopt a complete no-first-use doctrine.

Nuclear first use will be discussed in many forums over the coming year. It will become an issue within NATO and during the Alliance's discussions with Moscow as enlargement of the organization moves forward. No first use will be raised during the current session of the UN General Assembly when the resolution calling for a treaty banning the first use of nuclear weapons is scheduled to be debated. The Geneva Conference on Disarmament (CD) has also discussed possible treaties on no-first-use policies for many years, and now that the Comprehensive Test Ban Treaty (CTBT) is completed, the CD may make it an agenda item in 1997.

In spring 1997, there will be an important meeting of the Nuclear Non-Proliferation Treaty (NPT) parties that is likely to discuss no first use. Furthermore, the August 1996 report of the Canberra Commission on the Elimination of Nuclear Weapons has fueled the debate with its call for reciprocal no-first-use undertakings by the five declared nuclear-weapon states - China, France, Russia, the UK and the U.S. - as a step towards drastic weapons reductions.

In Washington, issues of nuclear strategy will probably be discussed in the U.S. Senate when the Chemical Weapons Convention (CWC) and non-use obligations of nuclear-weapon-free-zone (NWFZ) treaties are debated. Following the U.S. presidential election, some review of U.S. strategy by the Clinton administration is likely, especially after a National Academy of Sciences committee submits its report on the future of U.S. nuclear weapons policy. The document is expected to repeat an earlier committee conclusion that the only purpose of U.S. nuclear weapons should be to deter others' nuclear weapons.

In 1995, NATO nuclear-weapon states, in their effort to gain a permanent extension of the NPT, issued new 'negative security assurance' (NSA) declarations. These promised not to threaten or use nuclear weapons against any non-nuclear-weapon NPT party except in the case of an invasion or attack on the nuclear-weapon state or its allies 'carried out or sustained by such a non- nuclear-weapon state in association or alliance with [another] nuclear-weapon state'. These commitments made no explicit exception for an overwhelming conventional assault, or for a biological or chemical weapon attack, if another nuclear-weapon state was not allied or associated in the action.

Although the 1995 NSAs are similar to those given by NATO nuclear-weapon states from 1978, many more countries are protected by them (due to the growth in the number of NPT member- states), and the way in which the promise was made makes departure from it more difficult. Earlier NSAs were unilateral declarations and viewed as 'political' statements that could be changed at any time. In 1995, these declarations were modified after negotiations and re-issued to gain the support of non- weapon states for the NPT's extension. They were formally welcomed by a unanimous UN Security Council vote before the NPT Review and Extension Conference, and helped produce overwhelming support for extending the NPT indefinitely.

Given this history, the International Court of Justice (ICJ) took the position in July 1996 that these NPT assurances are legally binding. The ICJ unanimously concluded that any threat or use of nuclear weapons 'should be compatible' with the 1995 assurances. The ICJ gave them the same legal significance as treaty non-use promises to NWFZ parties.

Although NATO nuclear-weapon states do not agree with the ICJ's conclusion, they did concede during the NPT Review and Extension Conference that 'further steps should be considered' to strengthen the 1995 NSAs, and that these steps 'could take the form of an internationally legally binding instrument'. The debate about what 'further steps' should be taken will probably begin in 1997 at the first preparatory committee meeting for the next NPT Review Conference in 2000.

While the legal standing of NPT assurances is debatable, the legally binding nature of the pledges made to non-nuclear-weapon parties to the NWFZs is not. For example, in a treaty-form protocol to the 1967 Latin American NWFZ Treaty (Treaty of Tlateloco), the five declared nuclear weapon states promised that they 'will not use or threaten to use nuclear weapons' against any non-weapon party to the agreement. Several of them have submitted 'understandings' containing an exception like that described above concerning attacks in association or alliance with another nuclear-weapon state. But no exceptions were stated for chemical or biological attacks by a non-weapon party not in association or alliance with a nuclear-weapon state.

Similar protocols for weapon-states have been drafted for NWFZ treaties for the South Pacific (SPNWFZ), South-East Asia (SEANWFZ), and Africa (Pelindaba Treaty). The SPNWFZ protocol has been signed by all five declared nuclear-weapon states; the Pelindaba protocol has been signed by all but Russia, which is expected to sign; and the SEANWFZ protocol has not been signed by any nuclear weapon state, and further negotiations are expected. If these three agreements are signed and ratified, over 100 developing countries, almost all of which are NPT members, will receive legally binding non-use promises from nuclear-weapon states. The area covered includes virtually all of the southern hemisphere and much of the southern part of the northern hemisphere.

Given these non-use promises to more than 175 NPT non-weapon parties, repeated in NWFZ treaties to potentially 100 of the same parties, it is possible that U.S. first-use policy in the future will apply only to declared and undeclared nuclear-weapons states (India, Israel, Pakistan, China, France, Russia and the UK) and countries associated in an attack by such states. Advocates of a no-first-use policy contend that this is unrealistic and unnecessary because of U.S. conventional military superiority and the secure retaliatory potential of U.S. nuclear weapons. They argue that the U.S. should apply the same doctrine to all countries.

A critical issue in the emerging debate concerns whether nuclear-weapon states should explicitly reserve the option to use nuclear weapons in response to chemical or biological attacks. For example, before the U.S. signed the Pelindaba Treaty in April 1996, Pentagon officials, concerned that Libya was building a chemical weapons complex at Tarhunah, argued to reserve a nuclear first-use option against Tripoli. This posed a serious problem, however, since the African states insisted that the U.S. sign a non-use protocol similar to the ones it had signed in other NWFZs. The issue was temporarily resolved through a compromise: the U.S. agreed to sign the protocol, but then issued a National Security Council (NSC) statement that the non-use obligation 'will not limit options available to the U.S. in response to an attack by [a treaty] party using weapons of mass destruction'.

This statement suggested that the U.S. might respond with nuclear weapons to an African state's use of biological or chemical weapons, a response that would violate the terms of the protocol. The legal justification for the statement was the international law doctrine of 'belligerent reprisal' which, under certain circumstances, justifies a military response that violates a treaty if the enemy has violated another treaty. Since first use of biological or chemical weapons is forbidden under the 1925 Geneva Protocol, a first use by Libya on U.S. or Allied forces might justify a response that violated another legal obligation, as long as the response was necessary to stop the illegal attack or prevent further violation.

Despite this legal justification, it will be politically difficult for the U.S. to argue both that it requires a nuclear reprisal option against biological and chemical attacks, and that non-nuclear states do not have such needs. If the U.S., with the most powerful conventional forces in the world, maintains that it must have nuclear weapons to counter the use by Libya or Iraq of chemical weapons, should not less powerful countries, closer to those states, also need nuclear weapons?

The emerging first-use debate will also address whether the threat of overwhelming conventional attack from Russia is now so low as to make NATO's nuclear-first-use policy unnecessary. While the London Declaration retained a last-resort nuclear option, some analysts argue that the necessity to do so in the future has been decreased by reductions in Russian conventional military power.

Other analysts in favor of a continuing first-use policy counter that Russia's future is highly uncertain and that U.S. nuclear pledges help reduce proliferation by providing some increased security to both Germany and Japan. This latter view is likely to be advocated by France and the UK, which have fewer conventional forces than the U.S..

An important factor in this debate is the NATO enlargement issue. The Russian government has sought assurances from the U.S. that, if enlargement occurs despite Moscow's opposition, the U.S. would not base nuclear forces on the soil of new NATO members in Central and Eastern Europe. At the same time, Belarus and Ukraine have been discussing a NWFZ from the Baltic to the Black Sea. In September 1996, U.S. Secretary of Defense William Perry announced that the U.S. was not prepared to make a commitment to refrain from nuclear deployments to potential new Alliance members. He did state, however, that 'there is no interest and no plan in NATO today for either increasing the number, the quantity, of nuclear weapons or increasing places where they are based'.

Advocates of a no-first-use policy argue that it would help resolve NATO enlargement issues if a promise not to deploy nuclear weapons on the territory of new members was made and coupled with a no-first-use commitment. Given Russia's own first- use doctrine, however, it will be difficult for NATO to adopt such a policy without Russian reciprocity.

As the Washington debate intensifies, it is bound to engage U.S. allies in Europe and Asia. The old justification for NATO's first-use option against conventional forces has been reduced by the collapse of the Russian military. The new justification for a first-use option against biological or chemical weapons is easier to make on military grounds, but it contradicts the commitments made to gain permanent extension of the NPT and the protocols to NWFZs. Assessing the trade-offs between these policies will be a difficult and potentially divisive issue for the U.S. and its allies.

A policy of deliberate ambiguity - officially maintaining current non-use commitments, while quietly insisting that a belligerent nuclear response is still possible - is the most likely outcome. Any U.S. administration is reluctant to reject the advice of the Pentagon, and of supporters in Congress, who insist that U.S. forces need nuclear weapons to deter or defeat opponents armed with chemical and biological weapons. The administration will also, however, want to reduce the potential damage to the non-proliferation regime by not openly backtracking away from non-use pledges. 'Fuzzing the issue' is the likely policy, but neither the Pentagon nor European allies and non- nuclear states will be fully satisfied with such a compromise.