Russian Deputy Defense Minister on US Tactical Nuclear Weapons in Europe

I recently saw this statement by Russian Deputy Defense Minister Anatoly Antonov, calling on the US to withdraw its tactical nuclear weapons from the territory of European countries who are NATO members.  He grounds this call in the illegality of the placement of these nuclear weapons under the NPT. As he explains:

As an expert on the Nuclear Non-Proliferation Treaty (NPT) I have a question why nuclear armaments are deployed on the territories of non-nuclear countries. What is the nuclear weaponry control system of NATO states? In my opinion, this is a violation of Articles 1 and 2 of the NPT . . . How does the concept of joint use of nuclear weapons look in this context? NATO states refuse to discuss this issue under the pretext this is an internal affair of the alliance and deny their violation of the NPT provisions . . . We think that the United States and, obviously, NATO countries must decide on the withdrawal of U.S. nuclear weapons to the U.S. territory.

I thought I might offer here some of my analysis from my 2009 book, International Law and the Proliferation of Weapons of Mass Destruction, that essentially supports Antonov’s interpretation of the NPT, as applied specifically to this issue. I finished writing this book in 2008, so the text is a bit dated now. Nevertheless, I think the analysis is still essentially valid. You can find the text on pgs. 13-15. I’ve omitted the footnotes here.

Under Article II, all NNWS parties to the NPT undertake:

not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture or nuclear weapons or other nuclear explosive devices.

One issue which has produced controversy from the earliest days of negotiation of the NPT, and which involves the obligations of both NWS under NPT Article I and NNWS under NPT Article II, is the issue of nuclear sharing agreements between the U.S. and its NNWS NATO allies.  Such nuclear sharing arrangements date to the Cold War era, and six such arrangements with NNWS NATO states are still in place today, with approximately 200 U.S. B-61 gravity bombs stationed in these countries.  Nuclear sharing between the U.S. and NNWS NATO countries takes the form of U.S. nuclear weapons being physically located within the territory of a NATO state, generally at domestic military installations, and all components and items necessary for delivery of such weapons (e.g. trained bomber squadrons and appropriately fitted aircraft) being maintained by the host state’s military.  Both physical possession and operational control over the nuclear weapons themselves remain with the U.S. in times of peace.  The launch codes are held exclusively by the U.S. military, and can only be used upon authorization of the U.S. president.  However, NATO strategic policy has long provided that in time of general war, the U.S. president could authorize the activation of the weapons and the delegation of physical control over the weapons to the armed forces of NNWS NATO states, under the overall command of the NATO Supreme Allied Commander Europe.  In practice, this means that the weapons would be armed and that the host state military would have physical control over their use – i.e. the weapons would be transported in and dropped by aircraft commanded and operated by the host state military, subject to the NATO chain of command.

Such nuclear sharing arrangements between the U.S. and its NNWS NATO allies have long been a source of concern as to their compliance with Articles I and II of the NPT.  The U.S. has maintained that they are in compliance with NPT rules, as under these arrangements control over the nuclear weapons themselves (as distinct from control over their means of delivery) are never surrendered to NNWS allies until a general state of war has commenced, and that in such a case of general war the NPT would no longer be a controlling legal framework.

Critics quite correctly dispute this legal analysis, and argue that no principle of either humanitarian law or the law governing international uses of force serves ipso facto to render existing provisions of treaty law inoperable in a time of general war as among belligerents.  On the contrary, the survival of basic rules of positive international law, and in particular those relevant to the prosecution of armed conflict, in times of armed conflict is a principle which has been consistently upheld since the Nuremburg war crimes trials.  The Third Draft Report of Professor Ian Brownlie, the Special Rapporteur of the International Law Commission’s work on the subject of the effect of armed conflict on treaties, supports this latter view.  The Report’s Draft Article 3 states: 

The outbreak of an armed conflict does not necessarily terminate or

suspend the operation of treaties as:

(a) Between the parties to the armed conflict;

(b) Between one or more parties to the armed conflict and a third State.

 

Draft Article 4 continues:

1. The susceptibility to termination or suspension of treaties in case of

an armed conflict is determined in accordance with the intention of

the parties at the time the treaty was concluded.

2. The intention of the parties to a treaty relating to its susceptibility to

termination or suspension shall be determined in accordance:

(a) With the provisions of articles 31 and 32 of the Vienna Convention

on the Law of Treaties; and

(b) The nature and extent of the armed conflict in question.

Applying the principles of VCLT Article 31, one of the objects and purposes of the NPT is to prohibit the further spread of nuclear weapons, and thus limit the extent and severity of any nuclear exchange between belligerents.  Thus, the object and purpose of this treaty would not appear to justify a decision on the part of any state to suspend its implementation during time of war for the purpose of increasing the potential for and scope of nuclear exchange, which is the essential effect of such nuclear sharing agreements.  Under this analysis, any transfer of physical and/or operational control over nuclear weapons from the United States to a NPT NNWS, whether NATO member or not, whether in peacetime or in time of war, would be a breach of both NPT Article I on the part of the United States, and NPT Article II on the part of the NNWS concerned.

Critics further argue that such nuclear sharing arrangements are a violation of the spirit of the NPT, in that they result in the de facto continuing proliferation of nuclear weapons to NNWS which would otherwise not have nuclear weapons on their territory, with the attendant increased risk of their use in wars involving those countries.  They argue that such programs constitute longstanding and open policies of planned breach of NPT rules and thus do continuing violence to the fundamental principle of NPT Articles I and II, which is to prohibit the proliferation of nuclear weapons to the control of NNWS under any circumstances.