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Steven E. Miller
Director, International Security Program
Belfer Center for Science and International Affairs
Kennedy School of Government
Harvard University

Prepared for the
International Conference on Nuclear Technology and Sustainable Development
Center for Strategic Research
Tehran, Iran

March 2, 2005

            States often have difficulty recognizing and understanding how they are perceived by others.  Most governments regard their own choices and actions as legitimate, reasonable, defensible, and justified.  This frequently leads to an inability to audit one’s own behavior in a manner that accords either with objective standards or with the perceptions of others.  Convinced of the correctness of their own positions, certain of the righteousness of their intentions, often firmly persuaded of the necessity or even inevitability of their preferred steps, states can find it hard to accept that others hold very different views of the wisdom, acceptability, and legality of their behavior.  Indeed, even well-intended governments may be the worst judges of their own compliance behavior because of this tendency to be blind to the adverse implications of one’s own policies.  This is one of the reasons why there exist independent mechanisms – whether international arrangements or bilateral schemes – to judge compliance with international agreements.  States are not good at assessing their own behavior.

            Over many years, the United States has been subjected to intense criticism for its performance within the NPT system – criticism that has only increased in the recent past as a consequence of the controversial policies of the Bush Administration.  American administrations have generally rejected these criticisms as unwarranted or baseless and have argued that US policy is compatible with obligations under the NPT.  This was as true of the Clinton Administration as it is of the current Bush Administration.  Nevertheless, many other parties – members of the Non-Aligned Movement (NAM) and the New Agenda Coalition at the UN, for example – assert that the United States is not fully or adequately fulfilling its obligations within the NPT system and insist that it is thereby undermining international nonproliferation efforts.

These criticisms represent more than just the common charge of hypocrisy.  It is obvious that the United States has amassed an enormous nuclear arsenal, the most sophisticated in the world, and has for decades enshrined nuclear weapons at the center of its security policy.  All the while Washington has been proselytizing against nuclear weapons for all others and showing substantial (indeed, after the terrorist attacks of September 11, extreme) intolerance for the nuclear aspirations of any state with which it has hostile relations (including Iran).  Double-standards may be unattractive, but they are not illegal; on the contrary, the division between the nuclear haves and the have-nots is embedded in the NPT itself.  Those critical of the United States make more serious claims, suggesting that American nuclear policy and behavior has failed to conform to international law and to the international obligations that Washington has at various times assumed. 

It is President George W. Bush who has in recent times highlighted the severity of such charges – not in the context of claims against the United States but in the context of his own case for war against Saddam Hussein’s Iraq.  It was Saddam’s “outlaw” status, his refusal to live up to international obligations, that in Bush’s view justified the use of force against Iraq.  “By breaking every pledge, “ President Bush stated in his notable speech to the United Nations on September 12, 2002, “Saddam Hussein has made the case against himself.” [1]   In his speech on the eve of war, Bush commenced his justification for the invasion about to begin by protesting that Iraq “has uniformly defied Security Council resolutions demanding full disarmament.” [2]   Iraq’s failure to fulfill UN disarmament resolutions adopted after the 1991 Gulf war was, in Bush’s view, grounds for war.  But this severe Bush Administration policy of demanding strict fidelity to UN Resolutions and international disarmament obligations was not limited to Iraq.  As Undersecretary of State for Arms Control John Bolton explained, “If rogue states are not willing to follow the logic of nonproliferation norms, they must be prepared to face the logic of adverse consequences.  It is why we repeatedly caution that no option is off the table.” [3]   Further, the Bush Administration is outspoken in its belief that noncompliance issues should be publicly spotlighted, actual or potential violators should be explicitly named, and the noncompliant behavior should be viewed as the crucial challenge for treaty regimes.  Again, as Bolton explained, “I think the most important thing, politically, behind naming names is to focus people’s attention on noncompliance with existing agreements….By isolating and putting a spotlight on the countries that are clearly violating their existing obligations, I think it focuses people’s attention on what the real problem is.  When you have a large multilateral agreement the overwhelming number of states are complying with but a small number are not, the problem is the noncompliers.” [4]   In short, it is the United States – and particularly the Bush Administration – that has established unforgiving standards for compliance with arms control obligations and that calls for aggressive public diplomacy to name, shame, and potentially punish the noncompliant.

Many critics of American nuclear policy accordingly believe that they are simply holding the United States to its own unambiguous stern standards.  Washington surely did not intend or expect that the arguments it made in other contexts about the importance of complete fulfillment of treaty commitments and UN resolutions were relevant to its own policies or behavior.  It sees itself as a blameless good guy confronting rogue proliferators in the name of nonproliferation.  But this is not how it looks to numerous other parties to the NPT system, who believe that the United States (and the other nuclear weapons states) also made serious commitments in the NPT and associated documents and have an equal obligation to live up to those commitments.  Washington denounces or disregards some such criticisms and appears to be blind to others, but this does not change the fact that a substantial community within the UN system – including many allied and friendly states – believe that the United States has seriously undermined the NPT system by failing to live up to all of its obligations. 

What is the basis for such beliefs?  Critics see unmet obligations in six different contexts. [5]

Perennial Ferment over Article VI

            Article VI of the NPT famously obliges the nuclear weapons states to work “in good faith” to end the nuclear arms race and to achieve nuclear disarmament.  The nuclear powers, especially Washington and Moscow, have routinely pointed to nuclear arms control negotiations and agreements as evidence that they were fulfilling this commitment.  Since the end of the Cold War, the two nuclear superpowers have been able to point as well to significant reductions from the gargantuan arsenals that existed at the height of the Cold War.  The United States, in addition, has repeatedly reiterated its general commitment to the long term goal of nuclear disarmament.  Every American administration has made the same basic argument that adequate progress was being made in arms control and other nuclear restraints to satisfy Article VI.

            During the Cold War, these arguments largely sufficed to defuse controversy over Article VI, despite longstanding discontent over the prodigious nuclear appetites of the superpowers.  It was accepted that the intensity of the competition between the Soviet Union and the United States gave rise to a nuclear arms race that made Article VI largely irrelevant to the realities of the era.  Since the end of the Cold War, however, Article VI has increasingly come to be seen as a core element of the “grand bargain” between the nuclear weapons states and those who had agreed to forsake nuclear weapons.  Article VI is now widely viewed as a real and immediate legal obligation of the nuclear weapons states and signs of genuine progress toward nuclear disarmament have increasingly been demanded and expected by impatient non-weapon states. [6]   This issue has prominently figured in the NPT review conferences of 1995 and 2000 and at the Preparatory Conferences that take place in between.  There is every expectation that this issue will be a major source of contention at the 2005 review conference as well.

            Whereas the United States focuses on reductions and arms agreements, the Article VI critics focus on the large arsenals that still remain, the central role that nuclear weapons still play in US security policy, and the refusal of the United States to commit to any foreseeable time in the future when it will eliminate its nuclear arsenal.  Indeed, far from abandoning its nuclear addiction, the United States has repeatedly reaffirmed the centrality and importance of nuclear weapons to its long-term security posture. [7]   It has done so in various contexts in both the Clinton and Bush Administrations.  For example, at the time of NATO’s 50^th anniversary summit on April 23-24, 1999, the alliance issued a document outlining a new strategic concept.  In this document, NATO neither identifies any large adversary nor spotlights any large threat to its security.  On the contrary, it asserts that NATO regards itself as having no adversaries.  Nevertheless, the new strategic concept does not move the alliance away from nuclear weapons at all.  Paragraph 46 of the new Strategic Concept document conveys the critical point:

Here is the most powerful and successful alliance in history, lead by the mightiest power the world has ever seen, in an environment in which serious enemies or major threats are lacking, insisting that nuclear weapons remain not simply useful but  “essential” to its security “for the foreseeable future” – that is, more or less forever. 

More recently, the Bush Administration has put to rest any thought that the United States might begin to distance itself from nuclear weapons.  In its Nuclear Posture Review, made public in January of 2002, it confirmed at the national level what NATO’s Strategic Concept had reaffirmed for the alliance: nuclear weapons remain central to American security policy.  The Nuclear Posture Review declares:

“Nuclear weapons play a critical role in the defense capabilities of the Untied States, its allies, and friends.  They provide credible military options to deter a wide range of threats, including WMD and large-scale conventional military force.  These nuclear capabilities possess unique properties that give the United States options to hold at risk classes of targets that are important to achieve strategic and political objectives.” [8]

The Nuclear Posture Review calls for the revitalization of the US nuclear weapons production complex, the reinvigoration of the US nuclear deterrent posture, the exploration of new nuclear weapon designs intended to provide the ability to destroy the hardest of targets, and the creation of a new “Triad” of nuclear capabilities.  There are hints that nuclear testing may need to be resumed at some not-too-distant point in the future.  There is great emphasis on ensuring that the President will have wide and flexible nuclear strike options in any future crisis.  The Nuclear Posture Review, says Secretary of Defense Rumsfeld in his signed preface to the document, “will transform the Cold War era offensive nuclear triad into a New Triad designed for the decades to come.”  The United States, in short, is reemphasizing and upgrading rather than deemphasizing its nuclear force.  It is sending a clear message that it regards nuclear weapons as legitimate, useful, important, even “critical” to American security.  This will be true “for decades to come.”

            Given the evidence of Washington’s continuing nuclear addiction, it is next to impossible for the United States to convince skeptics that it is acting in a manner compatible with Article VI.  Canadian Senator Douglas Roche (a leader of the New Agenda Coalition at the UN) has clearly articulated a representative reaction to US nuclear policy in the early years of the 21^st Century: “There is no way to reconcile this resurgence of nuclear weapons development (Germany called it a nuclear renaissance) with disarmament.  Even as it says it is adhering to the NPT, the US is flouting it.” [9]

The Thirteen Steps – Or, the Article VI Dispute Refined

            Since the NPT Review and Extension Conference of 1995, the dissatisfaction of many non-nuclear weapons states with what they see as the failure of the nuclear weapons states (above all, the United States) to conform to Article VI has manifest itself in efforts to extract clearer and more specific commitments from the nuclear weapons states about how the Article VI obligations will be fulfilled.  In order to gain the indefinite extension of the NPT at the 1995 conference, the nuclear weapons states were compelled to reiterate their commitment to the elimination of nuclear weapons.  Even more tangibly and strikingly, at the 2000 NPT review conference, the parties to the treaty, including the nuclear weapons states, reached consensus on a document that spelled out thirteen practical steps that could and should be pursued as tangible steps toward implementation of Article VI. [10]   This was described as an “unequivocal undertaking.”  This agreement, Rauf writes, “was a high watermark in the history of the NPT review process, as it is the first time that the nuclear weapons states have accepted references to a series of specific ‘practical steps’ for nuclear disarmament leading to the elimination of nuclear weapons.” [11]   It was explicitly intended to move beyond the vagueness of Article VI and to provide a more unambiguous test of the performance of the nuclear weapons states.

            There can be little doubt that the United States has failed this test – indeed, almost flagrantly so.  At least half a dozen of the 13 practical steps, including most of the tangible arms control measures, are simply flatly contradictory to the nuclear policies enunciated by the Bush Administration.  Clear examples include the following:

• Step one calls for the speedy ratification and entry into force of the Comprehensive Test Ban Treaty.  The Bush Administration has opposed US ratification of the CTBT and renounced the treaty.  It has no intention of acceding to the agreement.  In November 2002 the United States was the only country to vote against UN General Assembly Resolution 57/100, which called for immediate and unconditional ratification of the CTBT.

• Step two calls for a continuing moratorium on nuclear tests until the CTBT enters force.   But the Bush Administration is spending substantial sums to rejuvenate the US capacity for nuclear testing, has openly established a goal of creating the ability to test quickly in case this is deemed necessary, and is pursuing the development of new nuclear weapons that might require testing.  And while the Bush Administration has repeatedly stated that no decision to test has been made, speculation abounds that the United States is on the road to testing.  Certainly the policies and spending patterns are consistent with an interest in testing.

• Step three calls for “immediate negotiations” within the UN Conference on Disarmament aiming to achieve a Fissile Material Cutoff Treaty within five years (that is, by 2005).  The United States has evinced no enthusiasm for this negotiation, which is now dead in the water, and has (along with other nuclear weapons states) adopted positions that make progress extremely difficult – indeed, so far, impossible.  Most recently, the Bush Administration has questioned the legitimacy of the entire exercise by concluding that an FMCT would be unverifiable and hence is unwise. [12]

• Step five calls for nuclear reductions to be irreversible.  The emphasis in American policy has been on nuclear remobilization if necessary – that is, on ensuring the reversibility of reductions.  Many weapons removed from active inventories are simply stored in a strategic reserve. 

• Step seven calls for the preservation, implementation, and strengthening of START II, START III, and the ABM Treaty.  The Bush Administration did achieve a new strategic arms agreement with the Government of Vladimir Putin.  But that appears to be the end of the road for strategic arms control as it was practiced over several decades.  There are at present no follow-on negotiations and there is no expectation that there will be any. [13]   Meanwhile, Bush unilaterally withdrew from the ABM Treaty, which thereby ceased to exist as a legal instrument.  And one of the costs of this withdrawal was the death of SALT II, because the Russian ratification of that agreement had been conditional on the preservation of the ABM Treaty.  The START III guidelines that had been agreed at Helsinki in 1997 were largely left behind by the Bush Administration as it negotiated its own Strategic Offensive Reductions Treaty (SORT).

• Step nine calls for a series of measures aimed at facilitating disarmament.  It says there should be increased transparency, but none has been achieved and, further, the SORT agreement contains no reference to transparency measures.  This has not been a priority for the Bush Administration.  It urges further dealerting of nuclear forces, but the US still maintains some 2000 warheads on high alert status.  It calls for a diminished role for nuclear weapons in the security policies of the nuclear weapons states.  As noted above, the US has instead reaffirmed the centrality of nuclear weapons in its security posture.

• Step thirteen calls for the development of improved verification capabilities.  Instead, the Bush Administration has outspokenly doubted that adequate verification is achieveable in most arms control contexts. 

To be sure, Washington has done some things that are in conformity with the thirteen steps.  But overall there is considerable divergence between the unambiguous goals of the thirteen steps and the direction of US nuclear policy.  Washington’s record of fulfillment must be judged poor. [14]

            With characteristic boldness, the Bush Administration has apparently made the decision not to defend its record but instead to repudiate the entire thirteen step program.  As with much else in the security realm, the consensus document of the 2000 NPT review conference is regarded as an obsolete pre-9/11 arrangement that is not relevant in the new post 9/11 world.  In the PrepComm discussions preparing for the 2005 NPT review conference, the United States “astounded” other delegations by “disowning” the 13 steps and by refusing to allow the document produced at the 2000 review conference to serve as the basis for discussion at the next review conference. [15]   Subsequent press reports indicated that the Bush Administration intends to propose that the 2005 review conference invalidate the 13 steps.  As one Bush official plainly (but anonymously) put it, “We think the international situation with regard to nonproliferation has changed so radically that the review conference should not be looking backward at the past final document….There is no such thing as implementing the 13 steps.”  The 2000 consensus document is not, this official insisted, “a road map or a binding guideline or anything like that.” [16]

            Many other parties to the treaty continue to regard the thirteen steps as desirable intermediate steps toward nuclear disarmament and as good criteria for judging the Article VI performance of the nuclear weapons states.  The New Agenda Coalition within the UN, for example, continues to press for progress on what it regards as key elements of the 13 steps – supported by as many as eight NATO members as well as many other states. [17]   The UN Secretary General’s High-Level Panel on Threats, Challenges, and Change lamented the “reversal” represented by the renunciation of the 13 steps and complained that “lackluster disarmament” by the nuclear weapon states was weakening the NPT regime. [18]   The view of the arm control NGO community toward the 13 steps is exemplified by the comment that the “nuclear weapon states, the United States in particular, have pursued policies that demonstrate significant regression from fulfillment of their Article VI obligations.” [19]  A group of international lawyers concluded, after documenting the inadequacies in performance, that “The United States and the other nuclear weapons states have fallen short of complying with NPT obligations and the thirteen steps. [20]   The United States government, however, seems to have left the 13 steps behind.  This is sure to be a contentious issue in the 2005 review conference and it will be surprising if Washington is not accused of noncompliance with Article VI on the basis of its disregard of the 13 steps.

Negative Security Assurances and the Sanctity of UN Resolutions

            From the earliest days of the NPT regime, non-nuclear states have wanted assurances that they would not be subjected to nuclear attack by those states in possession of nuclear arsenals. [21]  The United States conditionally offered those assurances in 1978 and has reaffirmed this pledge at various times over intervening years.  In 1995, as part of the diplomatic campaign to secure the indefinite extension of the NPT, Secretary of State Warren Christopher issued a statement explicitly reaffirming US negative security assurances.  Later the same year, the negative security assurances offered by the five nuclear weapon states were formalized in UN Security Council Resolution 984.  The contents of this resolution were further incorporated into the “Principles and Objectives for Non-Proliferation and Disarmament,” a document adopted at the 1995 NPT Review and Extension Conference. [22]   In 2002, the Bush Administration once again restated the US commitment to negative assurances, clarifying that it adhered to longstanding American policy on the issue. [23]

            But is American nuclear weapons policy consistent with these negative security assurances?  Doubts arise in two contexts.  First, it is often suggested that the United States might reply to chemical or biological strikes with nuclear retaliation.  The intent of such a doctrine, of course, is to deter chemical and biological attacks. [24]   Obviously, however, the threat of nuclear retaliation against the perpetrator of a chemical or biological attack is not perfectly compatible with a pledge not to use or threaten to use nuclear weapons against non-nuclear weapon states.  If the attacker is what Joseph Pilat has termed an “NPT-compliant rogue state,” then American nuclear reprisal would be contrary to the negative security assurances that the United States has offered in the NPT context. [25]   This is not an issue that is specific to the Bush Administration.  The Clinton Administration too is thought to have reserved the right to nuclear response to CBW attacks.

Second, in its 2001 Nuclear Posture Review, the Bush Administration explicitly enumerated a number of states that were factors in US nuclear force planning:  “North Korea, Iraq, Iran, Syria, and Libya are among the countries that could be involved in immediate, potential, or unexpected contingencies.” [26]   The implication was that the United States needed enough nuclear weapons in its arsenal to address these contingencies.  It is possible that none of these five states possessed nuclear weapons at the time the Nuclear Posture Review was written.  (North Korea might be an exception, and indeed, it has since proclaimed that it possesses nuclear weapons.)  This appears, then to be a clearcut case in which the United States was engaging in nuclear planning against non-weapons states, despite the existence of negative security assurances.  In truth, it may be that these countries were specifically named because of the fear that they pose the CBW threat that the United States wishes to deter using nuclear threats.  In that case, these two categories are conflated.  But what is undeniable is that the United States contemplates using nuclear weapons against non-weapon states though it has promised not to do so.

The meaning of this fact is disputed.   Some argue that US negative security assurances are legally binding and therefore that the United States has an obligation to conform its behavior to its promises. [27]   Others resist the suggestion that these assurances are legally binding but in any event argue that effective nonproliferation policy against hostile rogue states requires utilization of nuclear deterrent threats.  This is a relatively small universe of cases and most states do not fall within it, so concerns that the US is violating its negative security assurances are “blown out of proportion.” [28]   However, many of the states meant to enjoy the benefit of US negative security assurances believe that the value of those assurances is undermined if Washington can make self-chosen exceptions to the commitment.  Further, the negative security assurances have been embodied in UN Security Council Resolution 984.  In other contexts – notably in making the case for war against Saddam Hussein – Washington has urged that faithful fulfillment of UN Security Council resolutions is imperative and failure to respect obligations in such resolutions is grounds for severe penalty.  Hence there can be little surprise that other states suggest the proposition that the United States be held to the same standards – implying that the United States has a serious obligation to act in conformity with its pledge of negative security assurances.

Interfering with Nuclear Commerce Despite Article IV

            Article IV of the NPT establishes the “inalienable right” of all parties to the treaty to pursue “without discrimination “ nuclear power for civilian purposes.  Article IV does not limit in any way the nuclear technology that states can acquire or develop provided it is sought for peaceful purposes.  This means that even sensitive dual-use technology that could be useful for a weapons program can be purchased in the context of a peaceful civilian nuclear program.  Under Article IV, states have every right to acquire whatever civilian nuclear technologies they want.

            The United States, however, has long been reluctant to stand by and watch hostile powers assemble dual-use nuclear technologies that could provide the basis for a nuclear weapons program.  As is evident in the experience of Iran, Washington attempts to disrupt deals, pressure governments, punish firms, and interdict shipments in order to inhibit the spread of sensitive, weapons related technologies to unfriendly powers.  As is true in other instances, this American impulse is not just a byproduct of the Bush Administration.  As Strobe Talbott points out in his memoirs, the Clinton Administration was preoccupied throughout the 1990s with efforts to interfere with Iran’s nuclear development and it was prepared to pay a significant price in its relations with Russia in painful and largely unsuccessful attempts to stop Moscow’s nuclear deals with Tehran. [29]   Iran, not surprisingly, believes that it is being denied the opportunity to fully enjoy its Article IV rights.

            For its part, the United States feels completely justified in its efforts to deny nuclear technology to states that it regards as potential proliferators because Article IV rights are explicitly linked in the treaty to conformity with Article II, which requires non-weapon states to forego acquisition of nuclear weapons and to refuse any assistance in the manufacture of nuclear weapons.  In the American view, any non-nuclear weapon state member of the NPT that is pursuing nuclear weapons is in violation of Article II and has thereby forfeited its Article IV rights.  The US government has firmly believed since the early 1990s that Iran is developing a nuclear weapons program and therefore Washington is acting appropriately in seeking to deny nuclear technology to Tehran.

            Iran denies that it is seeking nuclear weapons and protests that American suspicions should not constitute grounds for refusing to respect its Article IV rights.  Further, Iran believes that the peaceful nature of its program has been confirmed by the IAEA. [30]  Similarly, Washington insists that Tehran’s denials are not adequate grounds for assuming that Iran is complying with Article II – particularly given Iran’s development of the full infrastructure for producing weapons-usable nuclear materials.  Indeed, in the United States there is a growing view that Article IV constitutes a flaw in the NPT – a loophole that enables member states to assemble the technology required for a weapons program under the guise of civilian activity.  This has led to proposals for a ban on any further spread of fissile material production capabilities to individual nations. [31]   In effect, there are two opposite Article IV crises:  Iran and other non-weapon states worry about the US inclination (sometimes in league with other nuclear suppliers) to ignore their Article IV rights while the United States increasingly views Article IV as a large hole in the NPT system that allows potential proliferators access to weapons-related dual use nuclear technologies.  As a result, it is to be expected that Article IV will join Article VI as a prominent and controversial items on the NPT agenda in the period to come.

            Those who share American suspicions of Iran and other potential proliferators and accept Washington’s interpretation of the conditionality of Article IV will judge that US efforts to restrict Iran’s nuclear program are justified.  However, not only Iran but a number of other states do not share Washington’s perspective on this question.  Those in this category generally believe that the United States is not adequately respecting the Article IV rights conferred on non-weapon states by the NPT.

Ambiguities About Article I?

            A less common, but still visible, complaint about US behavior in the NPT context focuses on Article I.   This provision defines a core obligation of the nuclear weapon states in very restrictive language.  They are “not in any way to assist any other state” in the pursuit of nuclear weapons, either “directly or indirectly”.  By any straightforward interpretation of Article I, any cooperation that assists the nuclear weapons program of an aspiring nuclear power is precluded.

            Has the United States strictly observed Article I?  Not everyone believes that it has. [32]   This concern derives in part to Washington’s tendency to turn a blind eye to the nuclear weapon programs of friendly powers such as Israel or Pakistan.  But passive acquiescence does not constitute a clearcut violation of Article I.  More serious charges derive from three categories of behavior.  First, there are suspicions that in some cases there has been covert cooperation between the United States and the weapons programs of some states – Israel, for example.  As covert activities are by definition hidden from view, it is hard to know the real facts, but those who harbor these suspicions will surely believe that the US is skirting its Article I obligations.  Second, the United States has provided nuclear capable delivery systems to states that are known or suspected to have nuclear weapons programs.  Is this a violation of Article I?  Obviously this does not involve direct support of the nuclear weapons program per se, but in some construals it represents indirect assistance as precluded by Article I.  Third, and similarly, the United States has given military and economic assistance to states – again, Israel and Pakistan are notable examples – that are known to have nuclear weapon programs.  Given the fungibility of money, this can be viewed as freeing resources for use in the nuclear weapons effort.  Those who interpret Article I strictly believe that it should preclude any activity that gives direct or indirect support to the nuclear arsenal of a proliferating state. 

ICJ and the Legality of Nuclear Weapons

            On July 8, 1996, the International Court of Justice (ICJ) issued an advisory opinion on the legality of nuclear weapons that concluded that the threat or use of nuclear weapons is “generally contrary to international law.” [33]   In an important caveat, the Court refrained from rendering a judgment about the legality of threatening or using nuclear weapons “in an extreme circumstance of self-defense, in which the very survival of the state would be at stake.”  Nevertheless, many in the international arms control and nonproliferation community leapt at the conclusion that nuclear weapons had been declared illegal by the most authoritative juridical body in the international system.

            The United States and the other nuclear powers submitted papers in advance of the ICJ decision making the case that nuclear weapons are compatible with international law.  The fact that these arguments did not carry the day is regarded as hugely consequential in many quarters.  And in the aftermath of the ICJ decision, a fundamental question arises in the minds of those critical  of the United States and the other nuclear powers:  How can the nuclear weapon states rest their security on weapons and on actions (the threat or use of nuclear weapons) that have been declared illegal?  How can states that claim to be champions of international order and enforcers of international law ignore the illegality of their own policy?

            The United States neither agrees with the ICJ decision nor regards the ICJ Advisory Opinion as binding.  This will not prevent critics from regarding the American position as perpetuating illegal activity in an environment in which Washington has been the most outspoken advocate of the view that unlawful behavior is intolerable.

Conclusion

            Many countries, especially among the Nonaligned Movement, the New Agenda Coaltion Agenda at the UN, supporters of the Middle Powers Initiative, and others, see shortfalls in America’s performance within the NPT system.  There is often complaint, sometimes bitter and intensely felt, that the United States does not fully live up to its obligations under the NPT and associated documents and commitments while holding others to a strict standard of compliance.  The United States feels these criticisms are unjustified and instead sees itself as the blameless enforcer of the nonproliferation regime.

            In objective terms, these divergent perspectives are difficult to disentangle.  In some cases, dispute derives from the vagueness of provisions in legal documents.  Article VI, for example, is notoriously elusive because what it demands of the nuclear weapon states is “good faith effort” in working toward disarmament, but the meaning of that phrase is nowhere defined.  In other instances, disagreements derive from varying judgments about the legal standing of various potential commitments.  Are the 13 steps a legally binding commitment or merely the common expression of preferences articulated in the final document of a single meeting at a particular moment in history (a moment regarded as obsolete by the present American government)?  Do the negative security assurances offered unilaterally by the United States represent a binding legal obligation or are they simply an expression of US intent?  Do ICJ Advisory Opinions have any force of law – particularly on states that reject the conclusions contained in the opinion?  In some contexts, acrimony arises from divergent interpretations of particular provisions.  Has Iran, for example, violated Article II of the NPT and thereby failed to meet the condition required to enjoy the rights provided by Article IV, as the United States would have it?  Or is Iran a member in good standing of the NPT system and hence fully entitled to Article IV privileges, as Tehran would have it?  Similarly, does Article I apply to delivery systems, or not?  This is a matter of interpretation that goes beyond the plain text of the treaty.  And cutting across these multiple sources of contention are very different readings of the empirical record.  The United States, for example, believes that it has a perfectly defensible record in terms of Article VI, pointing to reductions made, arms agreements signed, restraint measures introduced.  Its critics look at the same record and emphasize the huge arsenal that remains, the modernization efforts underway, and the seemingly endless embrace of nuclear weapons as essential to US security.  Many of the controversies associated with US performance under the NPT are found in grey zones which preclude definitive resolution.  This makes it difficult to render a confident judgment on the merits that the United States has a serious compliance problem.

            On the other hand, in political terms it is clear that the United States is confronted by a serious challenge.  Many members of the NPT system, including friendly and allied states, reject many of the American interpretations and find Washington’s performance to be unsatisfactory.  Since the NPT system is ultimately a political bargain, this reality is corrosive of the regime no matter how debatable are the merits of the criticisms of US behavior.  The United States stands accused of hypocrisy, of double standards, of bad faith, and of noncompliance with significant international obligations.  The accusers are not a small number of fringe players but dozens of states parties to the NPT, including influential coalitions of democracies.  Many parties believe, as an influential American report puts it, that an effective nonproliferation regime requires “universally compliance.”   As the Carnegie report asserted, “The burden of compliance extends…to the nuclear weapon states that are not honoring pledges that they have made.” [34]   Above all, the United States will find it extremely difficult to gain wide and necessary sympathy and support for its policy of strict and aggressive enforcement of full compliance by non-weapon states when many parties to the NPT believe that the United States itself is delinquent. 

Does the United States have a compliance problem?  Strictly speaking, this may be debateable.  But what is patently clear is that, in the context of the NPT system, the United States has a serious credibility problem.  This fact is sure to haunt the 2005 NPT review conference and ought to influence US policy to at least some degree.  Here again, however, a large difference of perception arises, for it is far from clear that the present administration in Washington credits the existence and importance of this credibility problem and it shows little inclination to adjust policy to address this problem. [35]   How Washington’s critics respond to this American stubbornness will be a critical factor in the phase ahead will be a critical factor, and the NPT may hang in the balance.

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