Cited: 8 Duke J. of Comp. & Int'l L. 29
[*pg 29]

NUCLEAR WEAPONS FREE ZONES: TIME FOR A FRESH LOOK

CAPTAIN MARK E. ROSEN, JAGC, U.S. NAVY*


I. INTRODUCTION

II. BACKGROUND

III. OLD AND EMERGING ZONES: NEW CHALLENGES
   A. Central and Eastern Europe Nuclear Free Zone
   B. Middle Eastern Weapons of Mass Destruction Zone
   C. Northeast Asia Limited Nuclear Free Zone

NEW BUSINESS, OLD ZONES
   A. U.S. Ratification of The South Pacific Nuclear Free Zone
   B. U.S. Ratification of The African Nuclear Weapons Free Zone
   C. P-5 Recognition of The Southeast Asian Nuclear Weapons Free Zone

V. FLAWS IN U.S. PRACTICE TOWARDS ZONES
   A. U.S. Participation In Zone Proposals Is Not Essential Or Mandated By The NPT Or Any Other Global Obligations
   B. U.S. Participation in Some Zones Dilutes the Value of Global Arms Control Efforts
   C. Participation in Too Many Zones Will Cause a Failure of WMD Deterrence
   D. Participation in Too Many Zones May Spawn More Ad Hoc Zones that Undermine U.S. Military Operations or Challenge Other International Norms.

VI. NUCLEAR FREE ZONES AND NATO

VII. UPDATING THE ANTIQUATED U.S. POLICY TOWARDS NW ZONES
   A. Principle 1. The United States Should Promote WMD Vice Nuclear Free Proposals.
   B. Principle 2. The United States Should Directly Caveat the Legally Binding Negative Security Assurance to States Which Have a Poor History of Adhering to Non-proliferation Regimes or Which Use Weapons of Mass Destruction.
   C. Principle 3: The United States Should Not Support Zone Proposals Which Directly or Indirectly Interfere With Global Operations of U.S. Military Forces.
   D. Principle 4: The United States Should Continue to Hold the Line Against Zonal "Domination" of the High Seas.
   E. Principle 5: The United States Should Delay Ratification of Zones Treaties Until There Is a High Assurance of Participation by Threshold States.

VIII. CONCLUSION

FOOTNOTES



   

I. INTRODUCTION

The Clinton Administration has achieved significant arms control milestones in the last two years. Major nuclear weapons related treaties have been signed, including the indefinite extension of the non-proliferation of Nuclear Weapons Treaty (NPT),1 accompanied by a reaffirmation of the U.S. negative security assurance (NSA),2 the U.S. announcement that it would unilaterally discontinue virtually all nuclear weapons testing activities in support of a "zero yield" Comprehensive Test Ban Treaty (CTBT) on 11 August 1995;3 the U.S. signature of the CTBT on 24 September 1996;4 [*pg 30] and the joint statement by President Clinton and Russian President Boris Yeltsin on 22 March 1997, establishing a framework for START III.5 Other significant nuclear related initiatives have included the U.S. signature (along with France and the UK) of the Treaty of Raratonga, establishing the South Pacific Nuclear Free Zone (SPNFZ) on 25 March 1996,6 the U.S. signature of the Treaty of Pelindaba, establishing the African Nuclear Weapons Free Zone (ANWFZ) on 11 April 1996,7 and the U.S. support for ASEAN's negotiation and conclusion of the Bangkok Treaty that established the Southeast Asia Nuclear Weapons Free Zone (SEANWFZ).8

In addition to the nuclear agenda, the Administration undertook robust efforts to control the development and proliferation of other weapons of mass destruction (WMD). Consistent with President Nixon's 1969 renunciation of first use of chemical weapons or any use of biological weapons,9 in 1996 the United States expanded its domestic implementation of the 1972 Biological Weapons Convention10 (BWC) to punish crimes associated with possession of biological weapons components. The Clinton Administration is now pursuing Senate advice and consent on the Chemical Weapons [*pg 31] Convention (CWC).11 The CWC attacks the problem of chemical weapons proliferation in a worldwide commercial context and contains detailed provisions on verification, including an intrusive inspection regime, protection of confidential information, and development of collective measures to assure continued operations of legitimate chemical industries.12

On the conventional front, in May of 1996, the United States signed a revision to Protocol II of the Convention on Certain Conventional Weapons (CCW).13 The CCW includes new restrictions on the use and transfer of landmines, as well as requirements that landmines be detectable and self-destruct or self-deactivate. Concomitant with the CCW changes, on 16 May 1996 (two weeks after the Protocol II changes were finalized), the Clinton Administration took the CCW commitments a step further by announcing a new U.S. landmine policy.14 That policy was liberalized further in a White House statement on 17 September 1997 specifying that the United States would observe a permanent ban on landmine exports, increase funding for landmine alternatives, and commit substantial funding to de-mining efforts in 1998.15

[*pg 32]

A fair question that the arms control community needs to ask is whether, in the aggregate, the current United States policy of providing arms control "leadership" in a variety of fora is actually destabilizing. The underlying premise of this Article is that arms control initiatives that are justifiable, comprehensive, and well-timed are worthwhile and in the national interest. However, given the explosion of arms control initiatives in a short period of time, it is appropriate to take a calm and reflective look at whether the pace should be slowed.

This Article's underlying assumptions are that the U.S. Government is irrevocably committed to: (a) gaining universal control over the NPT framework; (b) pursuing CTBT in order to stifle the development of new nuclear programs; (c) pursuing the world-wide accession of the Chemical Weapons Convention (CWC); and (d) advocating full and effective implementation of the BWC to complete the WMD circle. This leaves unanswered the questions of nuclear weapons free zone treaties pending Senate advice and consent (ANWFZ and SPNFZ), action concerning completed treaties that the United States has not yet signed (SEANWFZ), and U.S. support for free zone initiatives in their formative stages. Accordingly, this Article will address the core question of whether the U.S. Government should support new and pending nuclear weapons free zones given the current pace of the initiatives, their potentially destabilizing effect, and the fact that pursuit of regional efforts may detract from comprehensive global arms control (including the zero yield CTBT, CWC, and enhanced controls in the biological warfare area), which are a high national priority.


   

II. BACKGROUND

Article VII of the NPT expressly recognizes nuclear weapons free zone treaties as regional gap-fillers.16 Provided they meet certain criteria (Fig. 1) they are supported as a matter of U.S. policy.17 An underlying [*pg 33] premise for nuclear free zones is that these treaties are useful to establish norms regionally which have not been established globally, such as prohibitions on the testing or stationing of nuclear weapons inside a region. Nuclear weapons free zones also have been used in the past to establish a system of nuclear inspection safeguards that reach a greater number of activities than the International Atomic Energy Agency (IAEA) safeguards found in the NPT.18 For example, The Treaty of Tlateloco19established safeguards for Brazil's nuclear programs during the many years that Brazil remained outside the NPT. Of course, these existing initiatives exact a legally binding negative security assurance from the nuclear weapons states (P-5), and place restraints on stationing or testing nuclear weapons inside the zone of application.20 Given the restraints on its nuclear activities, U.S. support for zone proposals is a case-by-case affair. Specific political factors or world events had a significant influence on the timing of the U.S. decisions to sign the two most recent zone treaties.21

Although all zones are not created equal, common terms which [*pg 34] the regional treaty parties undertake are depicted in Figure 2.22 The terms reflected in points one and two are taken directly from the NPT and, like the other factors, are essential to favorable U.S. consideration of any NWFZ proposal. To be acceptable to the United States, the treaty obligations also must be met in a framework that does not upset other important international rights or obligations.23 Also, the treaty zone must be carefully bounded geographically so that it does not interfere with the operation of ships and aircraft, the exercise of high seas freedoms, and various transit rights in and over the marine environment.24 It must also be sufficiently flexible to permit the visits of nuclear powered and nuclear weapons-capable ships and aircraft to seaports and airports.25

To date, all nuclear weapons free zone treaties contain one or more protocols that the nuclear weapons states (P-5) are eligible to sign. These protocols provide a legally binding negative security assurance (NSA) that the P-5 will not use or threaten to use nuclear weapons against treaty parties or other protocol parties inside the zone.26 Additionally, protocol signatories undertake a host of other commitments.27 Unless a protocol party gives notice of its intent to [*pg 35] withdraw from one or more of the protocols and waits the required period28 because its supreme national interests are threatened, the legally binding NSA and other promises are of indefinite duration. Protocol parties also are bound by language in all of the treaties not to "contribute to any act which would constitute a violation of the treaty by a treaty party."29 This language serves to deter the use of proxy states, or indirect means, to subvert the basic object and purpose of the treaty.

The Antarctic Treaty of 195930 is the historical antecedent for regional zones and later efforts in the 1960's and 1970's to limit the spread of nuclear weapons to the global commons: the seabed and outer space. In 1960, the United States became a party to the Antarctic Treaty which prohibits, inter alia, any military activities in Antarctica. Such military activities include establishing bases, carrying out maneuvers,31 or conducting activities that result in a nuclear explosion or creation of nuclear waste.32

The non-proliferation aspects of the Antarctic Treaty enjoyed popularity and spurred the conclusion of the "global" efforts, including the Treaty on Principles Concerning Exploration of Outer Space of 1967,33 and the Seabed Arms Control Treaty of 1971.34 The Outer Space Convention prevents orbiting nuclear weapons and the installation of any weapons of mass destruction in outer space, on the moon, or on other celestial bodies. Similarly, Article 1 of the Seabed Arms Control Treaty prohibits state parties from "implanting or emplacing" any nuclear weapons or "other weapons of mass destruction as well as structures, launching installations, or other facilities" on the "seabed and the ocean floor."35 For purposes of the Seabed Arms Control Treaty, the non-nuclear zone extends seaward [*pg 36] from the twelve nautical miles territorial sea of all of its parties.36 Both the Outer Space Treaty and the 1982 U.N. Convention on Law of the Sea Treaty contain aspirational language limiting the use of the seas and outer space for "peaceful purposes."37

A succession of regional efforts at nuclear non-proliferation have been attempted in most geographic regions. In 1957, Adam Rapacki, the Polish Foreign Minister, presented a plan for an "atom free zone" for Central Europe before the UN General Assembly.38 Resurrected twice in 1973 and 1982 in NATO disarmament and CSCE talks, respectively, the plan called for establishing a corridor free of nuclear weapons along a 150 km wide area on either side of the border separating the former German Democratic Republic and Czechoslovakia from the former West Germany.39 Also proposed but not established in the late 1950's, were the Nordic Nuclear Weapons Free Zone, which encompassed Norway, Finland, Sweden, and Denmark,40 and the Balkan Nuclear Weapons Free Zone for all Balkan Countries (including Turkey and Greece) and the Adriatic.41 Neither the Nordic proposal nor the Balkan Zone seriously took root since they were promoted by the Soviet Union, and were viewed by the United States as an attempt to fracture NATO and disrupt NATO nuclear deterrent policies.42

In addition to abortive regional zone proposals, there have been attempts at establishing zones of peace intended as "off-limits," or "buffer" areas, where superpower competition is not allowed. The classic example is ASEAN's Zone of Peace, Freedom and Neutrality (ZOPFAN), recited as the authoritative basis for the recently adopted SEANWFZ treaty which sought establishment of a large high seas buffer between Southeast Asia and Pakistan on one side and India on the other which encompassed areas of the Indian Ocean.43 Because work on SEANWFZ is complete, the ZOPFAN [*pg 37] concept may be in remission. However, so long as India and Pakistan remain undeclared nuclear powers outside of the NPT, one can expect initiatives to resurrect ZOPFAN to rid the Indian Ocean of actual or potential nuclear rivalries.44 For years, South Africa and Brazil have introduced non-binding resolutions for adoption by the UN General Assembly to create a South Atlantic Zone of Peace, a proposal that the United States has consistently opposed.45 Most recently, Brazil and New Zealand persuaded the UN First Committee to endorse a Southern Hemisphere Nuclear Free Zone that appeared to link the Latin American, South Pacific, Antarctic, and Southeast Asian Zones.46 This later proposal goes far beyond existing terrestrial-based zone proposals and seeks to fill the nuclear free lacunae in the Southern Hemisphere with particular focus on the high seas.47

Although the United States never endorsed most early regional nuclear-free zone proposals, the 1967 Treaty of Tlateloco established a Latin American Nuclear Free Zone that the United States signed in two increments: Protocol II48 in 1968, and Protocol I49 in 1977. United [*pg 38] States interests in the Latin American Zone are considerable, given that U.S. military bases at Guantanamo Bay, Cuba, Panama, and Puerto Rico are located inside the zone. Beyond U.S. endorsement, Tlateloco is viewed as a success story for playing an understated, yet moderating role in keeping South and Central America free of nuclear weapons.50 For example, Argentina and Brazil nominally signed the Treaty of Tlateloco in 1967, but did not ratify it until nearly thirty years later.51 Nonetheless, Tlateloco provided moral and political suasion because both Argentina and Brazil had been threshold nuclear weapons states that had remained outside of the NPT until both countries concluded their quadripartite agreement with the IAEA on 13 December 1991, and abandoned their nuclear weapons development programs.52


   

III. OLD AND EMERGING ZONES: NEW CHALLENGES

A. Central and Eastern Europe Nuclear Free Zone

The emerging zone proposal most likely to demand immediate attention is a proposal to create a nuclear free zone from the Black Sea to the Baltic Sea. In the 1995 NPT review conference, Belarus (more recently joined by Ukraine) promulgated the concept of a nuclear free zone to prevent nuclear proliferation in Central and Eastern Europe. In particular, this nuclear free zone would allay [*pg 39] fears that NATO enlargement would create new nuclear weapons basing options near the Russian heartland that would threaten the former Soviet Union and her Republics.53 The Belarus proposal is patterned after the German reunification agreement known as the "final settlement."54 Under this settlement, the United States, Russia, Germany, France, and the United Kingdom agreed that German Forces could be stationed in the former East Germany, but that "foreign armed forces and nuclear weapons or their carriers" could not.55 In the context of NATO enlargement, the Belarus proposal would allow Poland, Czechoslovakia, Slovenia, and Hungary to join the NATO military apparatus. However, these new NATO members would either be legally precluded from permitting the stationing of nuclear weapons on their territory by an external nuclear free zone treaty, or they would be required to issue Norwegian type declarations that they would not accept the stationing of nuclear weapons in their territories in "peace time."56

Figure 457

[*pg 40]

Although the Belarus proposal has not been presented in much detail, some Russian officials have embraced the concept58 as a way of compensating for the prospect of NATO, approaching their borders with new members who could, by virtue of Article V59 of the North Atlantic Treaty, become a base for nuclear weapons in wartime.60 Even though NATO has no current plans to station nuclear weapons in former Warsaw Pact areas, and the President has reaffirmed this policy in the recent Helsinki talks,61 in the past Russian arms control analysts have not been reassured by "current plans" language because plans can change.62

The territory of the Zone comprises a large crescent including the Baltic States: Lithuania, Estonia and Latvia. The zone then moves South East to the Black Sea, encompassing Poland, Czech Republic, Slovakia, the territory of the former East Germany, Romania and Bulgaria, Austria and Hungary, and the three newly independent states of Belarus, Ukraine (now non-nuclear), and Moldova. No text has been proffered, but it is assumed that the treaty parties would provide reciprocal assurances to other treaty parties to neither possess, develop, test, nor permit the stationing of nuclear weapons on their territory. Nuclear weapons states would in turn be asked to respect the zone by agreeing not to test nuclear weapons within it, and to provide a legally binding negative security assurance to neither use, nor threaten to use, nuclear weapons against any treaty party. Given the contentious NATO enlargement background, Russia would undoubtedly insist that the nuclear [*pg 41] weapons states agree not to "station" nuclear weapons or "delivery systems"63 anywhere inside the zone. Similar statements also have been made by Ukraine (which supports NATO enlargement) to the effect that "Ukraine will never agree on the possibility of deployment of nuclear weapons on the territory of new NATO states . . . [and the creation of NWFZ's in Central and Eastern Europe would] . . . increase trust and stability" in the region.64

B. Middle Eastern Weapons of Mass Destruction Zone

Over the last 25 years, a variety of states in the Middle East have sought to establish a nuclear free zone. Supported by Egypt, Iran raised the issue in the U.N. General Assembly.65 In 1980, Israel introduced a similar resolution in the U.N. General Assembly that called for the establishment of a Middle Eastern Weapons of Mass Destruction Free Zone (MEWMDZ) -- a goal supported by President Mubarak in his 1990 proposal for a nuclear weapons free zone.66 More recently, the concept of a WMD Zone was expressly recognized in the 1995 NPT Review Conference.67

Egypt, a major player in any Middle East Zone, hosted the signing ceremony, and signed the Treaty of Pelindaba.68 This raises questions about how a MEWMDZ would co-exist with ANWFZ because Israel would undoubtedly insist that past, current, or former "front-line" states such as Libya, Sudan, Algeria, and Tunisia each agree to sign the MEWMDZ before Israel surrendered any of its WMD capabilities. Putting that issue aside, given the asymmetrical WMD threats in the region (e.g., Israel's nuclear capability and the chemical or biological capabilities of many other states), a WMD zone makes better sense in the Middle East than does a Nuclear [*pg 42] Weapons Free Zone, even though Israel is the only state that would make a tangible sacrifice in an exclusively nuclear free zone bargain.69 Given the small time and distance factors with which Israel must contend in terms of counteracting a potential WMD attack, Israel would undoubtedly demand that all WMD production and delivery systems be on the table as a precondition to negotiations. Even with such flexibility in negotiations, Israel's poor geographic position and her small defense force make it difficult to conceive of a situation in which Israel would join the NPT, dismantle her undeclared nuclear weapons program, and place all of her nuclear programs under IAEA safeguards. Nonetheless, there have been past glimmers of hope, such as former Prime Minister Peres' 1995 statement, made in response to an Arab League request that Israel sign the NPT: "give me peace and we will give up the nuclear capability."70

Pursuant to one of the many annual UN General Assembly Resolutions calling for a Middle Eastern Zone in the summer of 1990, a UN study group met with representatives from the region to flesh out the contours of a MEWMDZ.71 There was surprising commonality among Israel, Iran, and the other states on the terms of reference for such a zone. One must assume that the MEWMDZ treaty parties would commit neither to possess, develop, test, nor threaten to use WMD against another treaty party. Given the region's volatility, the UN team studying the initiative found the following special terms of reference necessary to build confidence among the prospective treaty parties.72

First, the process of establishing a MEWMDZ would take many years,73 and would be linked to the overall political situation in the region. Given the wide proliferation of chemical weapons among Arab States, as well as Israel's nuclear capabilities, the first phase of the MEWMDZ could, for example, include a regional undertaking to eliminate all biological weapons to maintain qualitative symmetry in the proposed reductions.

Second, positive security assurances (more far reaching than [*pg 43] those prescribed under the NPT74) would be necessary to deal with the diversity of WMD threats in the region.

Third, the verification regime would need to be more robust than those prescribed in the NPT given that Iraq, a member of the NPT, has managed to evade many IAEA inspections.

Finally, special precautions for weighted voting or veto rights would be required to ensure that Israel was not outvoted in the executive bodies or implementing agencies (particularly on-site inspection agencies) created by the MEWMDZ treaty.

The UN study group did not address the role of the nuclear weapons states within such a zone. While Iran and the other Arab states probably would welcome a legally binding NSA by the United States, it is difficult to conceive that Israel would prefer that the United States' "nuclear umbrella" be encumbered for the foreseeable future. It is commendable that the Middle East Zone sponsors have been advocating a WMD zone versus a nuclear weapons free zone to realistically address the widest possible array of non-proliferation problems. But, when and if the Middle East is truly ready for comprehensive arms control, the long-range missile programs of Iran, Israel, Libya, and Iraq must be subject to negotiations. The exclusion of these countries would undermine the effectiveness of any other types of measures to eliminate WMD.

C. Northeast Asia Limited Nuclear Free Zone

The last emerging zone proposal that deserves examination is the proposal for a "limited nuclear free zone" (LNFZ) for Northeast Asia. The proposal arose out of a series of meetings beginning in 1991 between retired diplomats and general officers from South Korea, Russia, Japan, China, and the United States.75 The proposal is sui generis in that it targets the denuclearization of the Korean Peninsula but includes territories of Russia, Japan, China, Taiwan, [*pg 44] Mongolia, and the United States in the zone of application -- a football-shaped ellipse 1,200 NM in radius with the Korean DMZ at the center.76

The proposed zone takes a "phased approach" to the problem of tactical nuclear weapons on the Korean Peninsula. The first step would be the creation of an "Interim Agency" that would delimit the specific areas inside the zone and establish modalities (by systems) and timetables for the zone's demilitarization. The initial meeting of the Interim Agency would be in Hiroshima, where the Agency would sponsor confidence building measures to increase dialogue and promote cooperative relationships among the participating states. So far as can be determined, the P-5 participants (Russia, China, and the United States) could not be expected to provide any positive or negative security assurances to other treaty parties (including Japan, North Korea, South Korea, Taiwan, and Mongolia). However, one can imagine that the LNFZ would require the P-5 participants to agree not to use their remote launching capability to deploy nuclear weapons against targets inside the zone.

Once the "get-acquainted" and agency planning period ends, the next phase would include phased or total removal of tactical nuclear weapons in accordance with the timetables.77 Strategic systems located inside the LNFZ could be removed concurrently depending on negotiations and agreements within the Interim Agency's bureaucracy. Most unique, however, is the provision dictating that once removal of nuclear weapons commences, a multinational verification force would operate from a common headquarters and conduct intrusive challenge inspections in the territories of the parties to ensure that timetables were being met and guarantee that no new nuclear weapons were being produced or introduced into the zone. Reminiscent of President Reagan's "Star Wars" proposal, the treaty parties would share verification technologies with the Interim Agency to ensure that treaty objectives were being met.

There are no indications that LNFZ has moved off the drawing board into mainstream international security and diplomatic circles. Since the proposal would directly affect the United States' ability to fulfill its security commitments to Korea, Taiwan and Japan, Washington is unlikely to rapidly embrace the proposal. Similarly, [*pg 45] China is not likely to warm immediately to the proposal even though it officially advertises a "no first use" policy. A LNFZ would prevent China from using its nuclear arsenal for intimidation purposes, or to defend against or deter an attack by one of its neighbors (with a smaller but far technologically superior conventional force). Finally, although the notion of including the territories of the P-5 inside the zone somewhat levels the playing the field, the cost, difficulty, and political impact of reshuffling strategic systems from their current locations in the United States, Russia, and China, combined with the difficulty of implementing a special set of targeting rules based on the LNFZ, create numerous practical problems that military leaders in all three countries most likely want to avoid.


   

NEW BUSINESS, OLD ZONES

A. U.S. Ratification of The South Pacific Nuclear Free Zone

The Treaty of Raratonga that created the South Pacific Nuclear Free Zone (SPNFZ) was negotiated and signed in the mid 1980's under the auspices of the South Pacific Forum.78 It entered into force in 1986. The Treaty area includes two U.S. possessions: Jarvis Island and American Samoa.79 The United States has no military facilities inside the Zone, and unlike the Treaty of Tlateloco and SEANWFZ treaty, the zone, for most purposes, only encompasses the land territory, internal waters, and archipelagic waters of individual states.80 In 1986, Russia and China signed Protocols II (no actual or threatened use of nuclear weapons ) and III (no testing of nuclear weapons), although Russia made written understandings at the time it signed the Treaty, "challenging" the treaty parties not to permit port visits of nuclear weapons capable ships.81 The SPNFZ treaty [*pg 46] places a heavy emphasis on the Zone's environmental protection.82 There are no actual or anticipated WMD threats in the region.

On 5 September 1995, the first French nuclear test at its underground site in the Muaro Atoll83 galvanized public outcry for rapid accession of the P-5 to the SPNFZ protocols -- in particular the Protocol prohibiting testing. After intense pressure by Japan, Australia, New Zealand and other states -- including the United States, which expressed "regret" with the French tests -- on 20 October 1995 the United States, France and the United Kingdom jointly announced their intention to sign the SPNFZ protocols in 1996.84 On 27 January 1996 France completed her sixth and last nuclear test. Noteworthy is the fact that France scaled back the number of tests conducted from eight to six and accelerated its completion timetable (from May to January 1996).85 This completion of testing paved the way for France to become a signatory to the SPNFZ. On 31 March 1996, the United States, France and the UK signed all three protocols to the Treaty of Raratonga.86 France ratified SPNFZ on 20 September 1996.87 If and when the U.S. Senate gives its consent to ratification, it will mark the fourth time that the United States has supported a regional nuclear non-proliferation zone.

B. U.S. Ratification of The African Nuclear Weapons Free Zone

Since 1960, African States have sought establishment of a nuclear free zone for the African continent. Known as the Treaty of Pelindaba (the site of South Africa's former nuclear weapons complex),88 forty-three of the fifty-three eligible African states were present in Cairo to sign the Treaty that created the African Nuclear [*pg 47] Weapons Free Zone (ANWFZ) on 11 April 1996.89 The Zone includes all of the African continent, as well as all islands that have been declared by the Organization of African Unity (OAU) to be part of Africa. Specifically, the OAU has declared that claimed territories of Mauritius in the Chagos Archipelago -- including the Island of Diego Garcia -- are considered for ANWFZ purposes to be part of the Continent of Africa. Therefore, the U.S. Naval Facility leased from the British at Diego Garcia is inside the zone.

The ANWFZ Treaty and its three protocols contain the same basic treaty party and P-5 commitments as are outlined in Figures 2 and 3. They repeat the core commitments of treaty parties to renounce nuclear weapons, prohibit states from stationing or testing nuclear weapons on their territory, refrain from nuclear weapons testing on their territory, and submit to comprehensive IAEA safeguards for peaceful nuclear activities. In addition, in Article 10 ANWFZ commits states to maintain high standards of "effective physical protection" of nuclear materials, and in Article 11 prohibits state parties from making, assisting, or encouraging an attack by conventional or other means on "nuclear installations"90 inside the zone. This latter clause was probably included as a "confidence building measure" to forbid an Osirak-like attack.91

The ANWFZ treaty provides a legally binding NSA to neither use, nor threaten to use, nuclear weapons against "a party to the treaty," or any territory within the zone for which a party is internationally responsible (eg., French and Spanish possessions). Further the ANWFZ has a clause in each relevant protocol requiring twelve months advance notice of a states' intention to withdraw for [*pg 48] circumstances affecting its "supreme national interests."92

For two reasons, ratification of the ANWFZ treaty likely will be controversial. First, the presence within the zone of the U.S. Naval Facility in British Indian Ocean Territory of Diego Garcia poses political problems.

The presence of Diego Garcia inside the Zone is political, not treaty based. Diego Garcia occupies a "strategic" geographical position in the middle of the Indian Ocean roughly equidistant from the sea lanes into the Persian Gulf, the Mediterranean (via the Red Sea and the Suez Canal) and South East Asia. As a result, the territory has served as a staging area for U.S. and other allied military operations. During the Persian Gulf War, for example, Diego Garcia reportedly was used as a staging area for twenty B-52's deployed as a "calculated-ambiguous" tactical nuclear deterrent against any chemical or biological weapons use by Iraq against U.S. forces.93 Since neither the United States nor the UK are treaty parties to ANWFZ, but are Protocol Signatories, none of the stationing prohibitions that are incumbent on Treaty parties apply with respect to possible stationing of nuclear weapons on the island. As for the territorial dispute between the U. K. and Mauritius, a ANWFZ treaty party and a claimant to Diego Garcia, the Arms Control and Disarmament Agency has concluded that the official treaty map "adequately protect(s) U.S. interests because any resolution of the [sovereignty] issue will occur outside of the framework of the treaty."94 Despite the fact that ANWFZ does not pose any textual problems with respect to the legality of continued U.S. military operations at Diego Garcia, there is language in Article 2 of all three Protocols (which both the United States and the United Kingdom signed) requiring a state not to ". . . contribute to any act which constitutes a violation of this Treaty, or this Protocol."95 That language could be used by opponents of a U.S. nuclear capable presence in the Indian Ocean. Practically speaking, U.S. accession to ANWFZ has no legal significance on whether there will be political impacts associated with DOD's continued use of Diego Garcia. But, [*pg 49] a possible harbinger of future political problems was manifest by Russia's last minute decision not to sign the Treaty because of its reservations with "U.S. use of the U.K.'s strategic island base of Diego Garcia."96

The second and more substantial issue surrounding ANWFZ ratification is the wisdom of providing a legally binding NSA to neither use, nor threaten to use, nuclear weapons against prospective ANWFZ parties that maintain robust biological and chemical weapons programs and some nuclear weapons development capabilities.97 Eight of the nine Arab league states in North Africa, including Algeria, Egypt, Libya, Somalia, and Sudan, are already non-nuclear weapon states parties to the NPT and thus the beneficiaries of the legally binding NSA.98 The WMD proliferation issue takes on additional significance because the relevant NSA protocol is of indefinite duration. A protocol party may renounce its obligations under the NSA only after giving twelve months advance notice that its supreme national interests are threatened.99 The treaty also expressly prohibits the taking of reservations, 100 thereby preventing the United States from excepting particularly nefarious states from the guarantee of the NSA.

[*pg 50]

COUNTRY NUCLEAR CHEMICAL101 BIO-LOGICAL LONG RANGE MISSILES102
North Korea advanced R&D program advanced-extensive little data Yes, indigenously produced missile can hit Japan
China yes mature
program
mature
program
Yes, intercontinental missile capability
Iran Aggressive R&D program with Chinese & Russian help. CWC party but has extensive program since 1984 probably advanced Yes, SCUD-C
500 KM range.
Indigenous program.
Iraq No, but political will No per UN, but remnants may remain No, but easiest to restart once UN sanctions over No, but some long range systems may be hidden
Libya No. Poor R&D base. Past user. Extensive program in hardened facility. Uncertain Yes, has SCUD-B 300 KM range. No indigenous program but acquisition possible.
India Yes CWC party but extensive capability BW party but has capability Yes, 1000KM indigenous system being tested.
Pakistan Bomb in 2-3 years CWC party but extensive capability BW party but has capability No, short range systems only.

Figure 5103

[*pg 51]

The most obvious difficulty associated with an irrevocable NSA is that the United States would be legally barred from using, or threatening to use, nuclear weapons in response to an actual or threatened attack of WMD against the United States, its forces, or allies. For example, the United States would forgo the legal right to use a tactical nuclear weapon against a deep underground target like Tarhunah (in Libya) which is reputed to be used for the production of chemical weapons.104 Another problem associated with a legally binding NSA involves signaling and deterrence. A rogue treaty party would have more of an incentive to use biological or chemical weapons against the United States or its allies at some time in the future if the United States were limited to responding conventionally. ANWFZ would preclude a nuclear response, and the United States no longer considers biological and chemical weapons part of the counter-response equation.

The final issue surrounding a legally binding NSA involves whether or not such legal commitments undercut treaty and other "special relationships" that the United States has with NATO and other allies such as Israel. Even though nuclear weapons are unpopular in some individual NATO countries, the fact remains that since the Truman years, the United States has committed its strategic forces to NATO to deter nuclear and non-nuclear aggression.105 And, while the threat of a Soviet conventional or nuclear attack may have diminished, the threat of a clandestine chemical attack by Libya on NATO forces or land targets in Southern Europe is still considered to be a real possibility.106

At least one high ranking U.S. official has indicated that signing the NSA contained in Protocol I would not compromise the strategic position of the United States vis-a-vis potentially dangerous treaty parties. Robert Bell, Special Assistant to the President for Arms Control, noted during the U.S. announcement of its intention to sign Protocol I of ANWFZ (the NSA) that "Protocol I will not limit [*pg 52] options available to the United States in response to an attack by an ANWFZ party using weapons of mass destruction."107 This statement, at best, has been labeled contradictory by some arms control specialists because it directly implies that nuclear weapons could be used in a WMD scenario. However, the language of Protocol I, the ANWFZ treaty itself, and the United States' NPT NSA, do not list any exceptional circumstances relevant that would suspend a Protocol Party's unequivocal obligation neither to use, nor threaten to use, nuclear weapons.108

No explanation has been provided to describe the legal underpinnings for Mr. Bell's statement. One theory might be that, when a country has exhausted all of its conventional means of defending itself against illegal aggression, the inherent right of self-defense recognized in Article 51 of the Charter would justify avoidance of arms control commitments.109 A closely related theory which could justify avoidance of a legally binding NSA is based on the ICJ's holding on Legality of the Threat or Use of Nuclear Weapons: "[I]n view of the current state of international law the court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of the State would be at stake."110 However, this implied right of actual or threatened use of nuclear weapons for national survival was heavily caveated by other language in the holding. Specifically, the court noted that the threat or use of nuclear weapons is "generally contrary" to international law applicable to armed conflict. Further, the court stated that any such threats or use of nuclear weapons cannot be contrary to "specific obligations under treaties and other undertakings which expressly deal with nuclear weapons."111 This convoluted advisory opinion seemingly accepts the proposition that a nuclear weapons state is required as a matter of law to accept [*pg 53] complete annihilation rather than violate an existing control treaty. That prospect and the logical flaws in the majority holding prompted U.S. Judge Schwebel to castigate the court for its "astounding" evasion of the "supreme issue . . . of use of force in our age," and for failing to acknowledge the value which nuclear weapons have had in deterring illegal behavior by rogue states.112

In an extensive article on the meaning of Mr. Bell's statement, George Bunn writes in Arms Control Today that the legal rationale for this "drastic change in U.S. negative security assurance policy appears to be based on the rule of belligerent reprisal, an old rule of customary international law that permits retaliation for an illegal act by an enemy in war."113 Bunn excoriates the apparent policy of relying upon belligerent reprisal because it undercuts the legally binding NSA's which have been made to the "hundred or so" countries which have or will be the recipients of legally binding NSA's in nuclear free zones. Bunn also states that the policy undercuts the NSA, which the United States has provided to all but a handful of states, in the context of the indefinite extension of the NPT.114 Bunn further argues that the United States' non-use pledge made in the context of the NPT, though billed as a policy statement, is legally binding,115 and that belligerent reprisal conceivably "trumps" both sets of security assurances.116 The doctrine of belligerent reprisal is a well established principal international law.117 However, if belligerent reprisal is what undergirds Mr. Bell's statement that a "trap door" exists, we can expect that this view will be challenged.118

[*pg 54]

C. P-5 Recognition of The Southeast Asian Nuclear Weapons Free Zone

Since the 1970s, the concept of a Southeast Asian Nuclear Weapons Free Zone (SEANWFZ) has been pushed by ASEAN nations, usually in the context of a Southeast Asian Zone of Peace, Friendship and Neutrality (ZOPFAN).119 The United States' significant military presence in the Philippines and the Soviet Navy's perceived "Blue Water" threat to some regional states, made it impossible for ASEAN to reach consensus on a SEANWFZ treaty.120 In early 1995, unexpected press reports stated that ASEAN had renewed efforts to conclude a NWFZ treaty under Indonesian's Foreign Minister Alatas, who was determined to complete work on a SEANWFZ before Indonesia relinquished the ASEAN chair in the summer of 1996.121 The resulting SEANWFZ treaty was signed by the ASEAN heads of state in Bangkok on 15 December 1996.122 [*pg 55] Indonesia completed ratification of the SEANWFZ treaty on 12 March 1997.123 Because Indonesia is the seventh state to ratify SEANWZ, the Treaty will, under Article 16, enter into force once Indonesia deposits its instruments of ratification.124

ASEAN's rapid conclusion of the SEANWFZ treaty was a success on one level, but a failure on another because the P-5 have elected not to sign the existing SEANWFZ Protocol.125 The United States and other P-5 members conceptually support a SEANWFZ, but require that the instrument meet established criteria that are currently not addressed.126 One reason for this failure was the lack of regular consultation between ASEAN and the P-5 during the developmental stages of the treaty; indeed, a draft of SEANWFZ was not made available to the United States by ASEAN until the spring of 1995. When it became apparent that ASEAN was moving briskly to closure on the treaty, the P-5 pressed for consultations with ASEAN in Jakarta.127

Although the November 1995 consultations resolved a number of serious issues, insufficient time remained to resolve other issues before the Treaty was presented to the ASEAN heads of state at the Bangkok Summit on 15 December 1995.128 The treaty and protocol texts had the provisions common to other nuclear free zones treaties.129 The following outstanding issues remain: (a) the inclusion of exclusive economic zone (EEZ) and continental shelf in the zone of application;130 (b) the extension of legally binding NSA to neither [*pg 56] "use nor threaten to use nuclear weapons inside the zone" irrespective of whether the recipient of the NSA is a treaty party, an eligible treaty party that has not ratified, or a fellow nuclear weapons state;131 and (c) inclusion of language that creates ambiguity regarding the right of treaty parties to grant or deny port visits of nuclear capable ships and aircraft.132

ASEAN plans to meet with members of the P-5 to chart a strategy to address the above concerns by "amending the protocol to addressing a major U.S. concern of including the EEZ and continental shelves in the zone of application will require legal finesse since ASEAN is unlikely to want to disturb a treaty that has already entered into force."133 Also, ASEAN's use of the Protocol to exact NSAs among the P-5 is something which the United States and other P-5 members have never done. The implications of cross-connecting NSA's among the P-5 on a regional level is sure to be controversial.


   

V. FLAWS IN U.S. PRACTICE TOWARDS ZONES

A. U.S. Participation In Zone Proposals Is Not Essential Or Mandated By The NPT Or Any Other Global Obligations

For regional states, the legally binding NSA and the commitments not to test by the P-5 are the two "crown jewels" of a nuclear free zone. Given that a politically if not legally binding NSA has been given by the United States and other states in the NPT context,134 and that the P-5 have all committed to end nuclear weapons testing by signing the CTBT,135 P-5 participation in most of the current zones awaiting ratification does not add much to the [*pg 57] security of regional states. Yet, it is fairly clear that nuclear free zones have played some part in helping solve problems. Consider, for example, when one examines the interplay between the announcement by the United States, United Kingdom and France to sign SPNFZ, and the eventual decision by France to discontinue its nuclear weapons testing,136 the role that Tlateloco played in coaxing Argentina and Brazil to abandon their nuclear weapons program,137 and the potential role that a limited nuclear free zone could play in a NATO enlargement context.138 Given the continued movement towards globalization of nuclear non-proliferation norms through the NPT and CTBT, and the limited role of zones in the past, it is not clear that complete U.S. endorsement, i.e., formal U.S. (or P-5) accession to all applicable protocols, advances U.S. security or non-proliferation objectives, or is required for the purpose of providing leadership.

U.S. accession to most nuclear free zone treaties (with the possible exception of a Central European Zone) has only marginal impact on the national security of the United States, but may in fact encourage unwelcome WMD behavior by rogue states. This situation of marginal or no-impact is clear in the case of the Treaty of Raratonga. From the standpoint of the treaty parties, the obligations by the P-5 neither to threaten the use of nuclear weapons nor to test inside the zone have been substantially delivered in the CTBT139 and in the context of the NPT.140 From the perspective of safeguarding U.S. security interests, there is no likelihood that the governments of Australia, Fiji, New Zealand, or New Caledonia are likely to become a WMD proliferation threat to the United States or their neighbors, or to become allied with countries that threaten this type of activity. Under these circumstances, the provision of an additional legally binding NSA to countries in a region that has no proliferation dangers contributes nothing, and dilutes the value of the NSA the United States has already provided in the NPT.

Legal support for direct participation in Nuclear Free Zones is wanting. Nuclear Free Zones take their place in the overall quilt of [*pg 58] global treaties by Article VII of the NPT, which states "Nothing in this Treaty affects the right of any group of states to conclude regional treaties to assure the total absence of nuclear weapons in their respective territories." 141 Conspicuously absent from the text of Article VII is any mention of the role of the P-5 as guarantors of regional treaties; indeed, Article VI of the NPT establishes that the primary legal obligations of all NPT parties (the P-5 in particular) is to support "general and complete disarmament and an end to the nuclear arms race" on what one must assume is a global level.142 Moreover, to the extent that P-5 participation has somehow come to be regarded as obligatory because of the normalization of four treaties in which a P-5 role is envisioned, it must be recalled that the United States is only a full party to one nuclear free zone treaty: The Treaty of Tlateloco, which was negotiated, signed and ratified at the height of the Cold War, in the sunset of the Cuban Missile Crisis, and in a context where regional states such as Argentina and Brazil had aspirations to become nuclear weapons states. That negotiating dynamic is not present in any of the current zones under examination, and the United States has never deviated from its policy of pursuing zone proposals on a case-by-case basis.

The other argument heard in arms control circles is that arms control leadership requires U.S. accession to existing nuclear weapons free protocols. The United States has a long history of supporting a variety of comprehensive, global arms control efforts. As the remaining superpower, the United States should exercise extreme caution in providing legally binding NSA's outside of the NPT. The sole possible exception in the short-term might be to facilitate NATO enlargement and prevent a dangerous new nuclear arms race with Russia. A resume of U.S. commitments to global nuclear arms control has evolved.

For example, the United States is a party to the Treaty of Tlatelolco (establishing the Latin American Nuclear Weapons Free Zone),143 the Antarctic Treaty,144 the Seabed145 and Outer Space Arms [*pg 59] Control treaties.146

In October 1991, Presidents Bush and Gorbachev committed to eliminate or not to deploy almost all tactical nuclear weapons.147 This was subsequently confirmed by President Yeltsin.148 President Bush committed the United States to "eliminate its . . . worldwide inventory of . . . theater nuclear weapons. We will bring home and destroy all of our nuclear artillery shells and short-range ballistic missile warheads . . . [and] withdraw all tactical nuclear weapons from . . . surface ships, attack submarines . . . as well as nuclear bombs aboard aircraft carriers."149

In May 1995, the United States provided critical leadership to meet an important global goal of persuading the international community to support an indefinite extension of the NPT. Arguably the single most important non-proliferation treaty in existence and nearly universally accepted, the NPT150 commits nuclear weapons states not to transfer nuclear weapons technology, while at the same time committing non-nuclear weapons states to forgo the development or acquisition of nuclear weapons. Of course, an essential external component of the overall NPT package is the United States' negative security assurance policy, first announced on 12 June 1978, and reaffirmed in April 1995. This policy states that the United States will not threaten or use nuclear weapons against any state which complies with the NPT.151

[*pg 60]

On 11 August 1995, in the face of concerns that nuclear weapons tests of some yield were militarily required to safeguard the safety and reliability of existing nuclear stockpiles,152 the United States unilaterally announced that it would accede to a zero yield test ban. France and the United Kingdom followed with similar announcements. In addition to the factual test ban, the United States signed the CTBT on 24 September 1996.153

U.S. leadership in the context of START I, START II, and cooperative threat reduction programs resulted in removal of nuclear weapons from Ukraine, Belarus, and Kazakstan.154

The United States provided critical leadership in the worldwide effort to eliminate the most pernicious types of anti-personnel landmines, and the Clinton Administration is staking considerable political capital to obtain Senate advice and consent on the CWC.

Because the United States has demonstrated its credentials on a variety of global and regional arms control fronts, support for nuclear free zones can take different forms. In cases where U.S. accession to, or support of, a nuclear free zone is neutral or would have negative strategic or political consequences, the United States should be prepared to sign less than all of the available protocols. Alternatively, the United States could agree to make a policy statement similar to the NPT policy statement, outlining its voluntarily adherence to some or all of the Zone's provisions, without becoming legally entangled in its complexities. For example, the United States could make an irrevocable policy decision not to station nuclear weapons in a given region. In other cases, the United States could simply "commend" the regional activity, but not take any special legal or policy action.155

B. U.S. Participation in Some Zones Dilutes the Value of Global Arms Control Efforts

Continuing U.S. support for nuclear free zone treaties may in the [*pg 61] aggregate dilute the quality of the promises, and minimize the importance of global international legal regimes designed to cope with the manufacture, production, stockpiling and use of WMD. The United States' policy with regard to chemical weapons, nuclear weapons testing and landmines illustrates this point.

Since 1975, the United States has been an adherent to the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare,156 which bans the first use in war of chemical weapons.157 Since retaliatory use under the Geneva Protocol is permitted, the United States maintained a robust "defensive" chemical weapons capability until 1985, when public law directed that steps be taken in advance of a comprehensive chemical weapons convention to eliminate the stockpiles of all lethal chemical agents and munitions in conjunction with U.S. acquisition of binary chemical weapons.158 In the intervening years, much of the aging U.S. stockpile has been destroyed, with only thirty thousand tons remaining. Of the remaining stockpiles, the United States has "made a decision, whether or not this treaty (CWC) is ratified, to destroy those stockpiles. We don't need chemical weapons to deter their use by others."159 According to Secretary of Defense Cohen, chemical weapons destruction activities are "well under way" towards the 2004 scheduled completion date.160 In the case of nuclear weapons testing (a key step in the development of any next generation nuclear weapons), the United States announced support for a zero-yield CTBT and discontinued all nuclear testing before the United States signed the CTBT and before it became apparent that India and Pakistan would probably boycott the CTBT. Finally, in the case of landmines, the United States signed a package of amendments to [*pg 62] Protocol II of the CCW in 1996 to restrict the use of anti-personnel mines.161 However, only two weeks after the amendments to the CCW were completed, the United States took unilateral steps to immediately ban "dumb" anti-personnel mines except on the Korean Peninsula,162 even though other countries, such as China, Russia, India and Pakistan do not support such a ban.

In all of these recent cases, the United States made significant unilateral disarmament decisions to advance global arms control. These decisions certainly score points in humanitarian circles, but national security specialists need to consider whether the United States is obtaining and delivering good value for its treaty commitments when it unilaterally assumes many serious treaty obligations without obtaining any reciprocal treaty benefits. From a peer competitor's standpoint or from the view of potential proliferation, the sincerity of the U.S. statement that universal accession to CTBT and CWC is important must be viewed with skepticism. After all, the United States has unilaterally elected to disarm before acquiring benefits under the treaties, and is not waiting to coax reluctant states to join these important global treaties. As long as states remain outside of the treaty context, the United States has less legal leverage to modify state behavior.

C. Participation in Too Many Zones Will Cause a Failure of WMD Deterrence

The April 1996 DOD Report, "Proliferation: Threat and Response," contains a comprehensive assessment of major and immediate WMD proliferation threats.163 In this report, former Secretary of Defense William Perry argues that these threats must be: (1) reduced through dismantlement and safeguards programs; (2) deterred by maintaining strong conventional and nuclear forces; and (3) defended against through counterproliferation programs.164

The most obvious reason why U.S. accession to various nuclear free zones may increase WMD proliferation is due to the WMD mismatch that most nuclear free zone treaties create. In a typical case, a P-5 protocol party, unless it exercises its right of withdrawal and waits the three to twelve months specified in the treaty, is barred [*pg 63] by the text from using nuclear weapons against a treaty party in all cases.165 On the other hand, treaty parties are insulated from a P-5 nuclear attack as long as they do not use or acquire nuclear weapons.166 For example, according a literal reading of the text of ANWFZ, the United States would be precluded from using or threatening nuclear weapons in response to the use of biological or chemical weapons by a rogue state.167

A failure of deterrence in the nuclear age can have devastating effects, especially when the aggressor facing the United States threatens the initial or repeated use of WMD -- most likely some type of chemical weapon -- against U.S. or allied targets. Particularly vulnerable are U.S. allies that rely on U.S. security assurances, some nuclear, to obtain local military supremacy. Since the beginning of the nuclear age, there has been little empirical data to determine whether the legal right to use nuclear weapons has restrained aggressive state behavior, particularly that involving WMD. However, Kagan's definitive On the Origins of War and the Preservation of Peace lays out a convincing historical argument that global arms control can be destabilizing.168 He examines the destabilizing effects of the U.S. and British decisions to restrict unilaterally the development of bases in the Philippines and Hong Kong, and to compromise naval superiority at the 1921-22 Washington Naval Conference and the 1930 London Naval Conference.169 In Kagan's view, these well-meaning disarmament measures afforded Japan local military supremacy which effectively provided Japan with the tacit encouragement to invade Manchuria in 1931, and later may have emboldened Japan to attack the United States.170 An ill-considered nuclear free zone can have destabilizing consequences and give a rogue state local military supremacy.

On the other hand, direct and indirect indications of U.S. resolve to use nuclear weapons contributed positively to de-escalation of potential WMD scenarios. In 1962, in response to saber rattling by Khrushchev to blockade West German access to Berlin following erection of the Berlin Wall, then Attorney General Robert Kennedy [*pg 64] said, "I would hope that in the last few weeks [Khrushchev] would have come to the realization that the President will use nuclear weapons."171 At the height of the Cuban missile crisis, the United States announced that it would regard a Cuban attack on the United States as "requiring a full retaliatory response upon the Soviet Union," and placed U.S. military forces on general alert and strategic forces on full alert.172 The last, and possibly most relevant incident, was a letter dated 5 January 1991 from President Bush to Sadaam Hussein on the eve of Operation Desert Storm.173 It contained the following warning: "The United States will not tolerate the use of chemical or biological weapons . . . you will be held directly responsible . . . [t]he American people would demand the strongest possible response. You and your country will pay a terrible price."174 Secretary Baker's memoirs relate an even livelier verbal exchange in which former Secretary Baker says he, "purposely left the impression that the use of chemical or biological agents by Iraq could invite a tactical nuclear retaliation."175 And, it was this very episode which prompted Vice-President Schwebel of the International Court of Justice to conclude that there were circumstances in which actual or threatened use of nuclear weapons would be legally justified under humanitarian law principles:

[A]s long as . . . "rogue states" menace the world (whether they are or are not Parties to the NPT), it would be imprudent to set policy on the basis that the threat or use of nuclear weapons is unlawful "in any circumstance." Indeed, it may not only be rogue States but criminals or fanatics whose threats or acts of terrorism conceivably may require a nuclear deterrent or response.176

The historical examples discussed above establish that possession and, at rare moments, threatened use of nuclear weapons can play a useful role in deterring illegal conduct.177 For this reason, a legally binding NSA by the United States in the context of ANWFZ, [*pg 65] MEWMD, and the Korean LNFZ could easily be misinterpreted by an aggressor. Potential aggressors are aware that the United States has dismantled its chemical and biological programs, and additional legal restraints on the United States' actual or threatened use of nuclear weapons dilutes flexible deterrence. The legally binding NSA also allows rogue states to venture the conclusion that the United States would be unwilling to sustain large combat losses to respond conventionally to an illegal use of WMD against non-U.S. territories.

In both CWC and ANWFZ, the White House has stated inter alia that the United States retains the right to respond to a WMD attack against U.S. troops or U.S. allies with overwhelming force.178 Assuming that George Bunn is correct that belligerent reprisal is the legal basis for these statements,179 it is urged that this doctrine should remain in the shadows of U.S. foreign policy, and not be used to resuscitate a deeply flawed arms control design. Belligerent reprisal or expansive self-defense theory, though they address deterrence concerns, also create confusion, because the White House has not clarified publicly its position. In addition, the statement that "all" options are available directly contradicts the unequivocal language in the ANWFZ and NPT NSA that nuclear weapons will not be used if certain conditions unrelated to biological or chemical weapons use are met.180 In the final analysis, invocation of the belligerent reprisal doctrine or some other new theory also casts doubt on the value of all the United States' arms control commitments. This could be dangerous if misread by nuclear peer competitors like China or Russia. Rather than invoke a controversial and narrow principle of customary international law or establish new principles, the United States is better advised to refrain from signing ANWFZ, and subsequently to retain the legal right to use nuclear weapons to hold the Libyan regime at risk for WMD.

D. Participation in Too Many Zones May Spawn More Ad Hoc Zones that Undermine U.S. Military Operations or Challenge Other International Norms.

U.S. policy on nuclear free zones mandates that zone proposals receive some regional standing and include all important states in the [*pg 66] region.181 For this reason, the United States has not publicly supported past attempts by individual states like Mongolia or city-states in Northern Italy to set themselves apart as nuclear free enclaves.182 The United States also has not supported attempts by some states to create zones which encompass the high seas, such as the ZOPFAN, which incorporated most of the Indian Ocean, or the current Southern Hemisphere proposal which unites Tlateloco, SEANWFZ, Antarctica and SPNFZ with the adjacent areas of the high seas.183

Ad hoc zones may appear morally justified under the rubric of self-determination, but from an international security perspective they can undermine the free movement of military and non-military units and cargoes and may undermine a state's good faith compliance with major post World War II mutual defense agreements such as the North Atlantic Treaty. Also, unless there is near universal participation by states in the region, the zone arrangements lose the self-enforcing verification mechanism that is essential to any nuclear arms control agreement. In the case of zones that borrow areas of the high seas for some purported security regime, the restrictions imposed on high seas freedoms undermine fundamental principles of customary international law, which stipulate that no state or group of states can subject the seas to such regimes because they are the common property of the international community at large.184

Thus far, the United States has held the line on not supporting zones that reflect the characteristics of those described above. However, U.S. ratification or support of zones such as SPNFZ that do not materially contribute to U.S. or regional security may stimulate the interest of individual or groups of states or NGOs to push for more denuclearization. While this is a noble goal, the U.S. Navy has suffered from movements with a "nuclear free" slogan. For example, Greenpeace's Nuclear Free Seas Campaign sought to interfere with the operations of the U.S. Navy's nuclear powered vessels, particularly the submarine force, in the late 1980s and early 1990s.185 U.S. Navy ships no longer carry tactical nuclear weapons,186 [*pg 67] but states continue to discriminate against vessels because they are nuclear powered,187 despite the Law of the Sea Convention's basic norm that means of propulsion is not a valid basis for discriminating against the passage of vessels.188 Given the resource-constrained environment in which DOD must now operate, the proliferation of new zones -- recognized or unrecognized -- creates additional difficulties for American military planners who have an ever-diminishing number of U.S. military facilities on foreign soil to use as staging areas for future military operations.189 Practically speaking, there is not much the United States can do to restrain the growth of regional or sub-regional nuclear free zones. However, the United States needs to be very selective in supporting future zones and outspoken in its opposition to zones that do not conform to established criteria. To do otherwise invites international acceptance of "zone creep" which may, in the final analysis, complicate DOD's ability to plan for and conduct military operations around the globe.


   

VI. NUCLEAR FREE ZONES AND NATO

Both the African Nuclear Free Zone and the Central European Zones have NATO implications: the former because it weakens defense of the NATO's Southern Flank, and the latter because a Nuclear Free Zone could create a treaty barrier to full integration into NATO of former Warsaw Pact states such as Poland, the Czech Republic, Hungary, and perhaps Romania and Slovenia.

The Central and Eastern European Nuclear Free Zone (CEENWFZ) is the single zone which deserves priority attention of U.S. policymakers, given the political dynamics of NATO enlargement and the transformation of the Russian military industrial complex. The Clinton Administration has made NATO enlargement a top foreign policy priority even though Russia says that it is opposed to any NATO membership which gives "any neighbor an attack capability that goes beyond present defense systems."190 Assuming that NATO enlargement is a U.S. priority, [*pg 68] serious consideration of a Central European Nuclear Free Zone proposal would advance the basic goal of NATO enlargement, but would relieve pressure on the Russian military to upgrade and modernize its strategic nuclear forces.191

Critics of a CEENWFZ will argue that NATO enlargement must be a seamless transaction, and states must accept the stationing of nuclear weapons on their territory to fulfill their obligations under Article 5 of the North Atlantic Treaty.192 Article Five binds NATO members to assist one another in the event of an attack, and includes access and bases for NATO strategic forces.193 Even though the North Atlantic Treaty has been regarded by many as sacrosanct, the reality is that there are exceptions around the edges of the treaty for Norway, Iceland, Denmark, and most recently Spain, all of whom have unilaterally declared that they do not accept the stationing of nuclear weapons in their territory in peacetime.194 Furthermore, in 1991, the United States and the other Four Powers agreed that the former East Germany could be part of NATO, but could not accept the introduction of foreign troops or nuclear weapons.195 This agreement may be a key precedent for determining how former Warsaw Pact countries can and should be integrated into NATO with minimum friction with Moscow.

CEENWFZ does not present any particular challenges to the basic zone mechanics: provisions addressing non-possession, no-use or no threatened use, verification, and non-stationing196 are all workable. All of the prospective parties are members in good standing of the NPT,197 and most are parties to the CTBT,198 giving a [*pg 69] high degree of confidence that the non-possession test could be met. The non-stationing measure also is "ripe for implementation as there are presently no nuclear weapons deployed in the territories of the potential zonal states."199 The legally binding negative security assurance and "no threat" assurance are, of course, consistent with security assurances already in place pursuant to the NPT.200 The final piece, verification, would not be difficult to implement since the IAEA now is operating full-scope safeguards in all of the prospective zonal states.201

Apart from the immediate NATO enlargement issue, the abysmal performance of Russian troops in the Chechen uprising is likely to underscore the importance of the nuclear arsenal in Russian defense planning to deter far better armed and technologically advanced NATO forces. Indeed, one Russian arms control commentator remarked that there has been an "alarming" number of Russian "letters to the editor," urging a resumption of nuclear modernization and tests.202 If conventional forces have been de facto removed from the defense planning equation for Russia, one can conceive of scenarios where some successor Russian government is forced to use nuclear weapons to enforce its national will against a NATO adversary. Unless nuclear forces are taken off the table by treaty, the temptation will exist for nuclear forces to be used so long as the readiness of Russian conventional forces remains in decline.

The bottom line is this: A properly drawn CEENWFZ could advance and solidify NATO enlargement while at the same time helping to advance strategic arms reductions with Russia. Adherence to CEENWFZ by the United States, United Kingdom, France and NATO enlargement states would provide a legal rationale for modifying the Article 5 commitments of NATO enlargement states. These countries' participation in a "sanctioned" nuclear weapons free zone provides a legal rationale for not demanding that the terms for NATO membership include the stationing of nuclear weapons on their territory. A CEENWFZ which includes accession by the NATO enlargement states themselves, and relevant former Soviet [*pg 70] Republics (Belarus, Ukraine, Georgia), and includes a commitment by the P-5 not to station nuclear weapons in the zone, is likely to be one of the most durable and respected methods of legally dealing with nuclear weapons and NATO enlargement. It also is possible that a very narrowly drawn CEENWFZ could help in shaping a final solution for other bilateral arms control issues, including CFE, START II ratification, and the ABM Treaty Ballistic Missile Defense.


   

VII. UPDATING THE ANTIQUATED U.S. POLICY TOWARDS NW ZONES

The United States' policy towards nuclear weapons free zones was born in the mid-1960s when the United States considered whether to join the Treaty of Tlateloco.203 It is time that the United States recognizes that the Cold War is over, and that proliferation threats today are more diverse, with chemical and biological weapons perhaps the greatest immediate threat. Five corollaries to the basic U.S. policy are proposed.

A. Principle 1. The United States Should Promote WMD Vice Nuclear Free Proposals.

The United States already provides robust nuclear guarantees in the NPT context in exchange for states' cooperation not to acquire illicit nuclear weapons technologies or nuclear weapons. This NPT commitment is free standing, and does not create a moral or legal obligation on the United States to support single-purpose nuclear weapons free zones.204 Given that some states which present immediate proliferation threats are not party to the 1997 CWC (Egypt, Iraq, Libya, Sudan, and Syria), the 1975 Biological Weapons Convention (Syria, Egypt, Algeria, Israel, Sudan), or the basic 1925 Geneva Protocols which ban use of biological or chemical weapons,205 the promotion of WMD zones is the most sensible policy for the United States to pursue. If part of the bargain calls for the United States to provide a legally binding NSA to the treaty parties, WMD zones at least address the current mismatch present in the ANWFZ.

[*pg 71]

B. Principle 2. The United States Should Directly Caveat the Legally Binding Negative Security Assurance to States Which Have a Poor History of Adhering to Non-proliferation Regimes or Which Use Weapons of Mass Destruction.

If negotiation of a WMD zone becomes unwieldy, or there are good reasons for the United States to provide a legally binding NSA, the United States should take a more flexible approach to provide NSA in zone treaties. While all nuclear free zone treaties prohibit reservations, it would not be inappropriate (and would not defeat the object and purpose of such a treaty) for a protocol party to accede to the treaty, but stipulate that the U.S. NSA would be suspended against a treaty party making actual or imminent use of WMD. A policy of apparent reliance on belligerent reprisal or some other unstated theory may be confusing vis-�-vis U.S. commitments to other global arms control treaties, and may not provide sufficient signaling to a potential WMD aggressor. Moreover, use of an unstated doctrine may cast doubt on the U.S. policy of promoting the rule of law if there is an international perception that the rules relied upon (e.g., belligerent reprisal) are not universally accepted or understood.

C. Principle 3: The United States Should Not Support Zone Proposals Which Directly or Indirectly Interfere With Global Operations of U.S. Military Forces.
1. Visitation Policies Must be Upheld. The four existing NWFZ treaties (ANWFZ, SPNFZ, SEANWFZ, TLATELOLCO) have provisions which allow states to decide for themselves whether to permit nuclear weapons capable ships and aircraft to visit their ports or airfields.206 At face value, these provisions protect the DOD's worldwide operations. However, the very aggressive definition of [*pg 72] stationing207 creates questions as to whether these clauses are truly neutral with respect to whether states should permit such visits. For example, Article 7 of SEANWFZ contains a standard provision that each State Party "may decide for itself whether to allow visits by foreign ships and aircraft."208 Yet, Article 3(2)( A) requires that each State Party not allow any other state to "possess or have control over nuclear weapons" or "station nuclear weapons" in its territory.209 At a minimum, this awkward formulation creates internal doubt as to whether port visits are permissible.

With a shrinking number of foreign bases, ships, and aircraft, DOD must rely on foreign sea and airport access so that its forces can respond to a geographically diverse number of tasks to be performed in the littorals. These include sanctions enforcement in the Persian Gulf, patrols in the Adriatic (to deal with streams of refugees and interdiction of arms), the non-combatant evacuation of places throughout Africa, a plethora of counterdrug activities in the Caribbean and the Pacific, the rebuilding of Haiti, and the assurance of a peaceful settlement of differences between China and Taiwan. To sustain these operations and maintain presence, foreign port access by nuclear weapons capable ships and aircraft is essential.

The Russian understandings to the SPNFZ Treaty,210 the refusal of Russia to sign ANWFZ as an oblique protest of continued U.S. use of Diego Garcia,211 and ASEAN's selection of ambiguous language in the final SEANWFZ Treaty,212 all suggest a subtle political undercurrent that nuclear weapons capable naval units are unwelcome in foreign ports and airfields, despite the best efforts of U.S. negotiators to ensure that NWFZ treaties contain text which is totally neutral. Much of the debate over the presence of nuclear weapons capable units should have subsided with the United States' 1991 policy decision to remove all of its tactical nuclear weapons from its surface vessels and aircraft.213 However, New Zealand's [*pg 73] domestic law implementing the SPNFZ contains a stand alone provision banning the visits of nuclear powered and nuclear weapons capable ships or aircraft.214 Indonesia also is seeking international support for routing nuclear powered and nuclear weapons capable vessels in connection with its designation of sea lanes through its archipelagic waters.215 The United States needs to be especially vigilant in this area, because a poorly drawn zone can subject states which permit visits of nuclear weapons capable units to internal and external pressures.216

2. Zones Should be Limited to Land Territory and Territorial Sea. The recently concluded SEANWFZ treaty establishes a zone which extends the full extent of the 200 NM exclusive economic zones (EEZs) and continental shelf (CS) area of all of the parties and enjoins both Treaty and Protocol Parties from using, testing, or threatening use of nuclear weapons inside that area.217 Treaty parties are further enjoined from stationing nuclear weapons or dumping any radioactive waste within that zone.218 Of course, this inclusion of EEZs and CS areas is problematic: once states accept the premise that an EEZ and CS can be part of a new type of security apparatus, this acceptance dilutes worldwide efforts by the United States and other maritime states to ensure that the LOS Convention is universally accepted and followed.

One can sympathize with smaller states who do not wish to be [*pg 74] caught in a nuclear crossfire, as the effects of any type of nuclear exchange are typically experienced over a very large region. Yet the inclusion of CS and EEZs in the SEANWFZ proposal is something that should, unless amended, continue to be resisted by the United States and the P-5 for three basic reasons.219 First, inclusion of the EEZ and CS in the zone of application accomplishes little because the United States, Russia, the United Kingdom and most potential nuclear weapons states are parties to the long-standing Seabed Arms Control treaty which prohibits the emplacement of nuclear weapons on the seabed seaward of the 12NM limit.220 Second, the EEZ and CS are fundamentally resource zones under the 1982 LOS Convention, and thus, were never intended to be security zones.221 Acceptance of the SEANWFZ formula would, in effect, ratify an excessive maritime claim. Third, the inclusion of EEZs and CS areas potentially makes it difficult for U.S. nuclear weapons capable vessels, such as carrier battlegroups, to conduct fixed "on station" operations in these foreign (EEZ or CS) areas. In such a case, the United States would of course argue that naval presence in these areas is legally justified as a high seas freedom. However, once again, there is no reason for the United States to sign a treaty which gives its political opponents the argument that the United States would not be "respecting"222 the SEANWFZ if it conducted carrier battlegroup operations in the vast CS or EEZ.

D. Principle 4: The United States Should Continue to Hold the Line Against Zonal "Domination" of the High Seas.

The ad hoc Zone of Peace Proposals for the Indian Ocean, [*pg 75] Southern Atlantic, and Southern Hemisphere seek incorporation of the high seas to prevent collateral damage to coastal states from a nuclear exchange on the high seas. The Indian Ocean proposal in particular indirectly addresses the problem of the two undeclared nuclear weapons states: Pakistan and India. However well-intentioned, these zone proposals do little more than establish huge buffer areas comprised of ocean space. The exercise of sovereignty over areas of the high seas is contrary to international law in that "no State [or group of states] may validly purport to subject any part of the high seas to its sovereignty."223 The right of the United States to operate ships and aircraft -- which may or may not have nuclear weapons aboard -- is a protected high seas freedom under the UN LOS Convention, and should not be allowed to be diluted.224 In addition, from the standpoint of international peace and security, the ability of U.S. warships to exercise their rights on the high seas has had a stabilizing and deterrent impact on states which were considering aggressive conduct of one sort or another. Future restrictions on the location or operations of U.S. warships in the South China Sea, the Aegean, the littoral regions of the former Yugoslavia or the Straits of Taiwan, in order to deter aggressive conduct, is not supported in most national or international policy circles. New restrictions on maritime freedom also may undercut U.S. security guarantees to countries with whom the United States has a mutual defense treaty.

E. Principle 5: The United States Should Delay Ratification of Zones Treaties Until There Is a High Assurance of Participation by Threshold States.

Following South Africa's unilateral dismantling of its nuclear weapons program and its pivotal role in securing indefinite extension of the NPT in May of 1995,225 there was a push by that Government to secure U.S. support for the ANWFZ.226 However, while there may be a strong political imperative surrounding the ANWFZ Treaty, one must question whether the nuclear non-proliferation goals are truly being met in the face of reports that all eligible Arab states, including the host Egypt, will not ratify the ANWFZ until Israel renounces it [*pg 76] nuclear weapons program.227

Since South Africa's now dismantled nuclear weapons program228 was the only significant nuclear proliferation threat on the African continent, it is far from clear how U.S. ratification will promote African nuclear non-proliferation if the Arab states do not ratify the ANWFZ Treaty. This situation is exacerbated by the extensive media reports that Libya -- a signatory of the NPT -- continues to ignore its NPT commitments and aggressively seek nuclear weapons technology.229 While there will be pressure on the United States to ratify the ANWFZ Treaty, that action should be carefully timed to obtain maximum participation by the ANWFZ treaty parties if nuclear non-proliferation is the true object of this endeavor.


   

VIII. CONCLUSION

The U.S. signature of SPNFZ and ANWFZ treaties was a shot of adrenaline to nuclear non-proliferation advocates inside and outside the federal government. In the coming months, one can expect that there will be pressure on the United States to accept SEANWFZ in one for form or another, and to look seriously at the CEENWFZ in the context of NATO enlargement.

The United States should work with ASEAN to try to reform the two major flaws in the SEANWFZ. If a suitable fix is not found, there is no compelling reason, other than symbolic value, for the United States or ASEAN to insist on U.S. participation in the SEANWFZ -- the United States has already made commitments to the SEANWFZ signatories through the NPT and CTBT.230 U.S. ratification of the SPNFZ Treaty is a "feel good" proposition because U.S. diplomacy was successful in providing leadership for P-5 support of a zero-yield CTBT and, in doing so, may have prompted France to [*pg 77] sign the SPNFZ Treaty and discontinue nuclear testing.231 These were the tangible deliverables which most benefited the region.

One blemish in the SPNFZ experience is New Zealand's failure to show reciprocal courtesy to the United States by seeking repeal of New Zealand legislation banning the visits of U.S. Navy nuclear powered and nuclear weapons capable warships. The U.S. Senate should strongly consider withholding ratification of SPNFZ until New Zealand decides to act with more civility towards the United States.

A CEENWFZ Treaty which is narrowly drawn,232 and pursued in a phased manner, could provide the United States with immediate diplomatic and international security rewards. It would provide a face saving way of assuaging Russian concerns with NATO enlargement (and the prospect of NATO nuclear weapons along their frontier), while preserving the basic integrity of the North Atlantic Treaty's duty of reciprocal assistance.

The U.S. case-by-case approach to zones remains sound, but the criteria for U.S. support need to be updated to reflect the true proliferation risks and the politics of deterrence. U.S. conventional forces are pushed to their limit due to the current plethora of traditional and non-traditional security taskings and downsizing, making it imperative that U.S. policy makers rethink existing deterrence models and carefully consider the positive role, with appropriate signaling, that U.S. nuclear weapons have in curtailing WMD proliferation. As the remaining superpower with global peace and security obligations, it is imperative that the United States not warm to zone proposals until the texts and the regional timing are right.


   

FOOTNOTES

* Captain Rosen is an international law attorney in the Navy Judge Advocate General's Corps. He is currently assigned as the legal and ocean policy advisor to the Deputy Chief of Naval Operations for Plans, Policy and Operations (N3/N5). The views expressed in this Article are those of the author alone and are not to be construed as the position of the Department of Defense, Navy, or the Office of the Chief of Naval Operations.
1. See Final Document on Extension of the Treaty on the Non-Proliferation of Nuclear Weapons, May 11, 1995, 34 I.L.M. 959. The Treaty on the Non-Proliferation of Nuclear Weapons originally entered into force for the United States on 5 March 1970. See generally Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter NPT]. Before the indefinite extension, the original treaty was to last for a period of twenty-five years. See id. art. X(2).
2. The U.S. negative security assurance (in which the United States pledges not to use or threaten to use nuclear weapons against non-nuclear weapons states which adhere to the NPT norms) [hereinafter NSA] is discussed in detail throughout this article. See infra note 151 and accompanying text.
3. See White House Press Briefing by Special Assistant to the President for Defense Policy Robert Bell, U.S. Newswire, Aug. 11, 1995, available in LEXIS, News Library, Arcnws File. The 11 August 1995 announcement contained two basic caveats: (a) the United States would retain the basic capability to resume nuclear test activities prohibited by the CTBT should the United States cease to be bound by the treaty; and (b) the United States would withdraw from the CTBT under the "supreme national interest right" if the President was informed by the Secretaries of Defense and Energy and the Commander of U.S. Strategic Command that a high level of confidence in the safety or reliability of the U.S. strategic stockpile could no longer be verified. See id. The United Kingdom made its own announcement on 14 September 1995 to support a zero-yield CTBT. See Britain Backs Absolute Ban on Test Explosions, Reuters North American Wire, Sept.14, 1995, available in LEXIS, News Library, Wires File.
4. See generally Comprehensive Test Ban Treaty, opened for signature Sept. 24, 1996, 35 I.L.M. 1439 [hereinafter CTBT]. All five of the nuclear weapons states have signed the CTBT. The treaty will enter into force when all 44 countries with nuclear reactors have signed it. India and Pakistan refused to sign. See Clinton Signs Comprehensive Nuclear Test Ban Treaty, LEXIS/NEXIS HOT TOPICS, Oct. 4, 1996, available in LEXIS, Hot Topics Library, Hotlaw File. One hundred and forty-six nations have signed the treaty. See Arms Control and Disarmament Agency (visited Sept. 26, 1997) <http://www.acda.gov/treaties/ctbtsigs.htm>.
5. See Press Conference by President Clinton and Russian President Boris Yeltsin, Federal News Service, Mar. 22, 1997, available in LEXIS, News Library, Curnws File.
6. See South Pacific Nuclear Free Zone Treaty, Aug. 6, 1985, 1445 U.N.T.S. 177 [hereinafter SPNFZ].
7. See African Nuclear Weapon Free Zone Treaty, Jun. 23, 1995, 35 I.L.M. 698 [hereinafter ANWFZ]. The Treaty of Pelindaba has been signed by all 53 eligible African Nations. See Arms Control and Disarmament Agency (visited Sept. 26, 1997) <http://www.acda.gov/treaties/afnwsigs.htm>.
8. See Treaty on the Southeast Asia Nuclear Weapon-Free Zone, Dec.15, 1995, 35 I.L.M. 635 [hereinafter SEANWFZ].
9. See UNITED STATES ARMS CONTROL & DISARMAMENT AGENCY, ARMS CONTROL AND DISARMAMENT AGREEMENTS 130 (1990) [hereinafter ACDA Agreements].
10. See Convention on the Prohibition of the Development, Production and Stockpiling of Bacterial (Biological) Weapons and Toxin Weapons and on their Destruction, opened for signature Mar. 26, 1975, 26 U.S.T. 583, 1015 U.N.T.S. 163. This convention entered into force on the same date as the U.S. ratification. The domestic implementation is found at 18 U.S.C. �� 175-78 (1994) [hereinafter BWC].
11. See The White House, M2 Presswire, Sept. 24, 1996, available in LEXIS, News Library, Wires File.
12. See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 I.L.M. 800 [hereinafter CWC]. The Convention has been signed by 165 countries, 100 of which have ratified the treaty. The CWC entered into force on 29 April 1997. See Arms Control and Disarmament Agency (visited Sept. 16, 1997) <http://www.acda.gov/factshee/wmd/cw/cwcsig.htm>.
13. See Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M. 1524 [hereinafter CCW]. This convention contains extensive new restrictions on the use and delivery of landmines. It essentially requires that all landmines be self-disarming and prohibits most forms of booby-traps. See id. at arts. 5(1)(b), 6. Protocol II revisions were adopted in early May 1996. See Protocol on the Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, May 3, 1996, 35 I.L.M. 1206. For an analysis of the new protocol revisions, see Michael Matheson, New Landmine Protocol is Vital Step to Ban, ARMS CONTROL TODAY, July 1996, at 9-17 [hereinafter Matheson]; Stephen Goose, CCW States Fail to Stem Crisis; U.S. Policy Now an Obstacle, ARMS CONTROL TODAY, July 1996, at 9-17.
14. See Matheson, supra note 13, at 16. The four-point policy requires the U.S. Executive Branch to: (1) diplomatically pursue an international ban on anti-personnel land mines; (2) enforce an immediate ban despite a nine year grace period in the CCW amendments on use of "dumb" mines except on the Korean Peninsula and for training purposes; (3) reserve the right to use "smart" mines until an international ban takes effect; and (4) maintain an omnibus reservation of the right of use of anti-personnel mines in Korea in future negotiations so long as tensions remain high and no alternatives exist. See id.
15. See Transcript of Clinton Remarks on Landmine Elimination, U.S. Newswire, Sept. 17, 1997, available in LEXIS, News Library, Arcnws File.
16. See NPT, supra note 1, at art. VII. Article VII reads, "Nothing in this treaty affects the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories." Id.
17. See ACDA Agreements, supra note 9, at 64.
18. See NPT, supra note 1.
19. See Treaty for the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 634 U.N.T.S. 362 [hereinafter Tlateloco].
20. See NSA, supra note 2.
21. The timing of the U.S. announcement to sign the Treaty of Raratonga and its signature was heavily influenced by French nuclear weapons testing in the South Pacific in the fall and winter of 1996 and, indeed, may have had a significant impact in the decision of France to abate some of its planned tests. See US, France, Britain to Join S. Pacific N-Pact, Reuters North American Wire, Oct. 20, 1995, available in LEXIS, News Library, Wires File. The timing of the U.S. signature of the Treaty of Pelindaba also was driven by a U.S. desire to support President Mandela of South Africa, who was an active proponent of the treaty. See generally The White House, Federal News Service, Apr. 11, 1996, available in LEXIS, News Library, Curnws File.
22. Figure 2, Bullet 1-see SEANWFZ at art. 3; ANWFZ at art. 3; Tlateloco at art. 1.2; SPNFZ at art. 3. Bullet 2-see SEANWFZ at arts. 4, 5; ANWFZ at arts. 8 and 9; Tlateloco at arts. 13, 14; SPNFZ at art. 4 and annex 2. Bullet 3-see SEANWFZ at art. 3(2); ANWFZ at art. 4; Tlateloco at art. 1(1)(b); SPNFZ at art. 5. Bullet 4-see SEANWFZ at art. 3; ANWFZ at art. 5; Tlateloco at art. 1; SPNFZ at art. 6. Bullet 5-see SEANWFZ at art. 3(3); ANWFZ at art. 7; SPNFZ at art. 7.
23. See ACDA Agreements, supra note 9, at 64.
24. See Nuclear Issues in the South Pacific: Hearing Before the Asian and Pacific Subcomm. of the House Comm. on International Relations, Federal News Service, Nov. 15, 1997, available in LEXIS, News Library, Wires File.
25. See id.
26. See NSA, supra note 2.
27. See Figure 3, Bullet 1-see SEANWFZ at Protocol I art. 1; ANWFZ at Protocol II art. 1; Tlateloco at Protocol II art. 2; SPNFZ at Protocol III art. 1. Bullet 2-see SEANWFZ at Protocol I art.2; ANWFZ at Protocol I art. 1; Tlateloco at Protocol II art. 3; SPNFZ at Protocol II art. 1. Bullet 3-see SEANWFZ Protocol I art.1; ANWFZ at Protocol II art. 2; Tlateloco at Protocol II art.2 .
28. The waiting periods range from three months for Tlateloco (Latin America) and Raratonga (SPNFZ) to twelve months for both ANWFZ and SEANWFZ.
29. SPNFZ, supra note 6, at art. 1 (Protocol II).
30. See Antarctic Treaty, Jun. 23, 1961, 12 U.S.T. 794, 402 U.N.T.S. 71.
31. See id. at art. I.
32. See id. at art. V.
33. See The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Oct. 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
34. See The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, May 18, 1972, 23 U.S.T. 701, 955 U.N.T.S. 115, art. 1(1) [hereinafter Seabed Treaty].
35. Id.
36. See id. art. II. It is ironic that the 1971 Seabed Arms Control Treaty recognized a 12NM territorial sea limit well before its ultimate acceptance (with considerable controversy at the time) in the 1982 United Nations Convention on the Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), reprinted in 21 I.L.M. 1261 [hereinafter LOS Convention].
37. See Outer Space Treaty, supra note 33; Seabed Treaty, supra note 34.
38. See PAUL E. ZINNER, NUCLEAR FREE ZONES 26 (1988).
39. See id. at 27.
40. See id. at 30.
41. See id. at 31.
42. See id. at 32-43.
43. India has already exploded a "peaceful" nuclear device. India therefore considers itself to be a non-nuclear weapons state. Both India and Pakistan are described as "one screwdriver's turn" away from possession of an operable weapon. Editorial, India's Nuclear Semantics, WASH. POST, Jun. 2, 1992, at A18.
44. See Pakistan for Zone of Peace in Indian Ocean, Says President Ishaq Khan, Xinhua General Overseas News Service, May 22, 1990, available in LEXIS, News Library, Arcnws File; see also China Supports Making Indian Ocean Peace Zone, Xinhua News Agency, July 11, 1994, available in LEXIS, News Library, Arcnws File.
45. See G.A. Res. 49/84, U.N. GAOR First Comm., 49th Sess., Supp. No. 49, at 85, U.N. Doc. A/49/84 (1994).
46. See G.A. Res. 51/45, U.N. GAOR First Comm., 51st Sess., Supp. No. 51, at 79, U.N. Doc. A/51/45 (1996).
47. See Letter from Jan Prawitz, Senior Researcher, National Defense Research Establishment, Stockholm, Sweden to Author (Jan. 13, 1997) (on file with the Duke Journal of Comparative & International Law); DEP'T ST. CABLE, No. 79730 (Nov. 13, 1996) (on file with author).
48. Additional Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America, Apr. 1, 1968, 22 U.S.T. 754, 634 U.N.T.S. 762. The United States signed Protocol II, which prohibits the use or threatened use of nuclear weapons against a Treaty Party, in 1968. A lengthy ratification process followed in which, inter alia, the United States made supplemental understandings regarding the Treaty's zone of application and the nature of the security assurance. More specifically, the United States regarded a Treaty Party's attack on the United States assisted by one of the P-5 as inconsistent with basic Treaty obligations. The United States deposited its instruments of ratification in 1971. See ACDA Agreements, supra note 9, at 81.
49. Additional Protocol I to the Treaty for the Prohibition of Nuclear Weapons in Latin America, May 26, 1977, 33 U.S.T. 1792, 634 U.N.T.S. 362. Protocol I requires states with possessions in the zone neither to possess, test, manufacture, produce, nor to station nuclear weapons in the zone. Because the United States had various territories in the zone (Virgin Islands, Puerto Rico, Canal Zone), it was eligible to sign Protocol I in 1977. The United States deposited its instruments of ratification in 1981. See ACDA Agreements, supra note 9, at 81.
50. See Zachary S. Davis, The Spread of Nuclear-Weapon-Free Zones: Building a New Nuclear Bargain, ARMS CONTROL TODAY, Feb. 1996, at 19.
51. See ACDA Agreements, supra note 9, at 87. Brazil commenced ratification procedures in 1967 but did not complete ratification formalities until 30 May 1994. See id. Argentina completed a "safeguards" agreement in March of 1996. The U.S. and Argentina: Forging a Strong Global Partnership, DEP'T ST. DISPATCH, Mar. 4, 1996, available in LEXIS, News Library, Curnws File.
52. Both Brazil and Argentina's nuclear programs were quite advanced. Brazil not only had large indigenous deposits of uranium; it also had a substantial civil nuclear research program. Following the Arab Oil Embargo in 1973, Brazil aggressively obtained enrichment technology from West Germany that did not require IAEA safeguards to set the stage for a military sponsored secret program, code-named "Solimones," to develop weapons grade plutonium. The secret Brazilian plan was exposed in 1990 by then President Collor de Mello. Argentina's program was dominated by its Commission for Atomic Energy (CNEA), which sought development of a robust and independent civil nuclear power program. Though advanced, there was limited military participation in the Argentine program. See generally Scott D. Tollefson, Nuclear Restraint: Argentina and Brazil (1-2 Nov. 1996) (on file with the Duke Journal of Comparative & International Law); Michael A. Morris, National and Multinational Approaches to Naval Security in Latin America (1-2 Nov. 1996) (on file with the Duke Journal of Comparative & International Law).
53. See generally Jan Prawitz, NWFZC&EE: A Nuclear-Weapon-Free Zone in Central and Eastern Europe from the Black Sea to the Baltic Sea, Mar. 26, 1996 (on file with the Duke Journal of Comparative & International Law) [hereinafter NWFZC&EE].
54. Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990, 29 I.L.M. 1186; see generally Anatoli A. Rozanov, Towards a Nuclear-Weapon-Free Zone in Central and Eastern Europe, THE MONITOR, Fall 1996, at 19.
55. Treaty on the Final Settlement with Respect to Germany, supra note 54, at 1191.
56. See NWFZC&EE, supra note 53, at 8.
57. See For NATO, Eastward Ho!, ECONOMIST, Mar. 1, 1997, at 49.
58. See Vladimir A. Orlov, Moscow Nuclear Safety and Security Summit: Summing up the Results, YADERNY KONTROL DIGEST, Summer 1996, at 7. Sergei Medvedev, Press Secretary to President Yeltsin, remarked that Russia's official policy is to support the creation of nuclear weapons free zones where they do not exist. He stated that "in Eastern Europe, including the outlying districts, a de facto nuclear-weapon-free zone . . . not legally finalized . . . would be a missed chance." Id.
59. The North Atlantic Parties agree "that an armed attack against one of more of them in Europe or North America shall be considered an attack against them all; and consequently they agree that, if such an armed attack occurs, each of them . . . will assist the Party or Parties so attacked . . . individually and in concert with the other Parties . . . ." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.
60. See Vladimir A. Orlov, Nuclear-Weapon-Free-Zone in Central and Eastern Europe: Proposals and Their Future, Nov. 2, 1996, at 10 (on file with the Duke Journal of Comparative & International Law) [hereinafter Orlov]. See also Figure 4.
61. See For NATO, Eastward Ho!, supra note 57, at 49; Joint U.S.-Russian Statement on European Security, U.S. Newswire, Mar. 21, 1997, available in LEXIS, News Library, Curnws File.
62. See Orlov, supra note 60, at 3.
63. Id. at 8. The term "delivery systems" is derived from the "Final Settlement" agreement and is intended to cover missile and other systems. It is not found in other nuclear free zone treaties.
64. See Orlov, supra note 60.
65. See G.A. Res. 3263, U.N. GAOR First Comm., 29th Sess., Supp. No. 31, at 27, U.N. Doc. A/9631 (1974).
66. See U.N. INST. FOR DISARMAMENT RESEARCH, A ZONE FREE OF WEAPONS OF MASS DESTRUCTION IN THE MIDDLE EAST at 59, U.N. Doc. UNIDIR/96/24, U.N. Sales No. GV.E.96.0.19 (1996) [hereinafter UNIDIR/96/24].
67. In addition, former U.N. Secretary General Boutros Boutros-Ghali issued a call at the NPT Extension Conference for the Middle East States to establish a weapons of mass destruction free zone by the year 2000. Secretary General Tells NPT Conference that 'Universality is Near': Warns of 'Terrible Risk' in Changing World, Federal News Service, Apr. 18, 1995, available in LEXIS, News Library, Curnws File.
68. See ANWFZ, supra note 7.
69. Indeed, one must assume that the primary reason why Israel maintains its alleged nuclear capability is to deter some type of biological or chemical attack against its homeland.
70. Dan Perry, Peres Says Mideast Should be Free of Nuclear Weapons, Associated Press, Dec. 22, 1995, available on LEXIS, News Library, Arcnws File.
71. See UNIDIR/96/24, supra note 66, at 61.
72. See id. at 61-62.
73. See id. at 61.
74. See S.C. Res. 255, U.N. SCOR, 1433rd mtg. at 13, U.N. Doc. S/RES/255 (1968). The "positive security assurance" is derived from U.N. Security Council Resolution 255, which "[w]elcomes the intention expressed by certain States [Soviet Union, United States, and then United Kingdom] that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act or an object of a threat of aggression in which nuclear weapons are used." Id. This resolution was reissued by unanimous vote on 11 Apr. 1995, when the NPT was indefinitely extended. S.C. Res. 984, U.N. SCOR, 3514th mtg., U.N. Doc. S/RES/984 (1995).
75. The Georgia Institute of Technology's Center for International Strategy, Technology and Policy has hosted approximately twelve meetings since 1991.
76. See John E. Endicott, Text, Senior Panel's Deliberations Draft Initial Agreement, Feb. 24, 1995 (on file with Author).
77. Telephone Conversation with John Endicott, Director of CISTP, Georgia Institute of Technology (Mar. 6, 1997).
78. See SPNFZ, supra note 6.
79. See id.
80. See id.
81. See Department of State, Public Statements: Soviet Signing of SPNFZ 1 (Dec. 1986) (on file with the Duke Journal of Comparative & International Law); Department of State, Public Statements: Soviet Signing of SPNFZ Protocols 1 (Dec. 1986) (on file with the Duke Journal of Comparative & International Law). Russia noted that in its view states in the region were not complying with the prohibition against stationing of nuclear weapons in the zone if they permitted the visits of nuclear weapons capable ships and aircraft to their ports and airfields. Article V of the treaty expressly provides that states may "decide for themselves whether to permit . . . ." See SPNFZ, supra note 6. Russia made no mention of this earlier understanding in its subsequent instrument of ratification.
82. See SPNFZ, supra note 6.
83. See David S. Yost, France's Nuclear Dilemma, FOREIGN AFF., Jan.-Feb. 1996, at 108, 109. This test followed an announcement by France in August 1995 that it would accept a zero-yield CTBT once it had completed its nuclear tests.
84. See French Nuclear Test Draws Only 'Regrets' from World Powers, WASH. TIMES, Oct. 3, 1995, available in LEXIS, Exec Library, Curnws File.
85. See Australia Patches Up Nuclear Row with France, Reuters Financial Service, Sept. 16, 1996, available in LEXIS, News Library, Reufin File.
86. See Joint Statement by France, United Kingdom, and the United States on the South Pacific Nuclear Free Zone Treaty, 32 WKLY. COMP. OF PRESIDENTIAL DOCS. 544 (1996).
87. See France Ratifies Nuclear-Free Treaty with South Pacific Forum, Xinhua News Agency, Sept. 20, 1996, available in LEXIS, News Library, Curnws File.
88. See David Fischer, The Pelindaba Treaty: Africa Joins the Nuclear Free World, ARMS CONTROL TODAY, Dec. 1995-Jan. 1996, at 9-10 (discussing South Africa Nuclear Weapons program and the Treaty's negotiating history).
89. See Africa Pact Banning Nuclear Arms Signed, PERISCOPE DAILY DEF. NEWS CAPSULES, Apr. 20, 1996, available in LEXIS, News Library, Curnws File. None of the "rogue" WMD states failed to sign on 11 April 1996 or thereafter. There are now fifty-two signatories. Madagascar is the single African state that has not signed. Gambia and Mauritius are the only two African states to have completed ratification. France is the single P-5 member to have ratified the applicable Protocols, which it signed on 11 April 1996. See United States Arms Control and Disarmament Agency, The African Nuclear-Weapon-Free Zone Treaty (visited Sept. 22, 1996) <http://www.acda.gov/treaties/afnwsigs.htm>.
90. "Nuclear installations" are defined as "nuclear power and research reactors, conversion and fabrication plants, reprocessing plants and isotope separation plants." See ANWFZ, supra note 7.
91. See Fischer, supra note 88, at 12. Iraq's Osirak "research reactor" was destroyed by an Israeli air attack in 1981 based on intelligence estimates that Iraq was using the facility to develop a nuclear explosive device. The Osirak raid is discussed in Louis R. Beres & Yoash Tsiddon-Chatto, Osirak: 14 Years After, THE JERUSALEM POST, Jun. 7, 1995, available in LEXIS, News Library, Arcnws File.
92. See ANWFZ, supra note 7.
93. See William M. Arkin, Calculated Ambiguity: Nuclear Weapons and the Gulf War, WASH. Q., Autumn 1996, at 3, 10. Arkin's source for the B-52 report was former Secretary of State James Baker.
94. Fischer, supra note 88, at 10 (quoting an official in the U.S. Arms Control and Disarmament Agency).
95. ANWFZ Treaty, supra note 7.
96. Simon Baynham, Africa-A Nuclear Free Zone, JANE'S INTELLIGENCE REVIEW-POINTER, Jan. 1, 1997, available in LEXIS, News Library, Curnws File. Russia finally signed ANWFZ a month later.
97. The French News Agency reported that "[t]he US almost balked at signing as well because the treaty would prevent it from threatening any Libyan chemical weapons program with a nuclear attack, sources in Washington said." See Russia Balks at Signing African Nuclear-Free Zone, Agence France Presse, Apr. 11, 1996, available in LEXIS, News Library, AFP File.
98. See Fischer, supra note 88, at 13.
99. See ANWFZ, supra note 7.
100. See id.
101. Taiwan, Myanmar (Burma), Syria, Israel and Egypt have also developed or are developing chemical weapons capability. See Thalif Deen, Tepid S. Asian Support for Chemical Pact, ETHNIC NEWS WATCH, Aug. 23, 1996, at 10. Syria and Egypt are regarded as being able to conduct chemical warfare. See Lessons for the NPT: U.S. Nuclear Doctrine Bodes Ill for Global Disarmament, Pacific News Service, April 12, 1995, available in LEXIS, News Library, Arcnws File.
102. South Korea, Taiwan, Egypt, Israel, Saudi Arabia, Syria, India and Pakistan have, or are developing, long range missiles. Argentina terminated its medium range ballistic missile development program but has entered into an agreement with Brazil to develop space-launched vehicles, satellites and other space technologies. See Wyn Bowen, Ballistic Missile Shadow Lengthens, INT'L DEF. REV.-EXTRA, Feb. 1, 1997, available in LEXIS, News Library, Curnws File.
103. OFFICE OF THE SECRETARY OF DEFENSE, PROLIFERATION: THREAT AND RESPONSE: APRIL 1996 (1996) [hereinafter DOD PROLIFERATION REPORT].
104. See Libya-April 23-Pentagon Implicitly Admits It Cannot Strike Chemical Plant, Arab Press Service Organization, APS Diplomat Recorder, Apr. 27, 1996, available in LEXIS, News Library, Nwltrs File (quoting Pentagon spokesman Kenneth Bacon, who acknowledged that DOD is working on a series of weapons "both nuclear and conventional" to deal with deep underground targets). See also Spurgeon M. Keeny, Jr., Nuclear Policy in Disarray, ARMS CONTROL TODAY, Apr. 1996, at 2. A description of the Tarhunah facility is found in the DOD PROLIFERATION REPORT, supra note 103, at 26-27.
105. See JEROME H. KAHAN, SECURITY IN THE NUCLEAR AGE: DEVELOPING U.S. STRATEGIC ARMS POLICY 12, 16, 244-48 (1975).
106. See DOD PROLIFERATION REPORT, supra note 103, at iii, 25, 28.
107. The White House Special Briefing Topic: ANWFZ-The Africa Nuclear Weapons-Free Zone-and the Signing of the Treaty of Pelindaba, Federal News Service, Apr. 11, 1996, available in LEXIS, News Library, Curnws File (emphasis added).
108. See Keeny, supra note 104, at 2 (adding that comments similar to those made by Mr. Bell were made by former Secretary of Defense Perry in the context of CWC ratification); George Bunn, Expanding Nuclear Options: Is the U.S. Negating Its Non-Use Pledges?, ARMS CONTROL TODAY, May-June 1996, at 7.
109. See U.N. CHARTER art. 51.
110. Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809, 831 (July 1996) [hereinafter Nuclear Weapons Case].
111. Id. at 37.
112. Id. at 83.
113. Bunn, supra note 108, at 9. Bunn distinguishes between a reprisal using nuclear weapons in response to a chemical or biological attack versus one involving retaliation for a treaty party's use of a nuclear device. In the latter case, the United States as signatory to Protocol I would be legally entitled to retaliate with nuclear weapons based on Article 60.2 of the Vienna Convention on the Law of Treaties, since a nuclear attack would constitute a material breach and would enable the victim to suspend its NSA against the offending state. See id.
114. See id. at 8, 9.
115. See id. (citing Nuclear Test (Australia v. France), 1974 I.C.J. 253, 267-270 (20 December); Nuclear Test (New Zealand v. France), 1974 I.C.J. 457, 472-475 (20 December)). Bunn argues that since the NPT non-use pledges were made in the context of NPT treaty negotiations to induce states to sign the NPT and the non-use pledge have been reaffirmed in a UN Security Council Resolution, the United States' NPT NSA is a legally binding commitment.
116. See id. at 9.
117. See id.
118. See Nuclear Weapons Case, supra note 110, at 37. In the Nuclear Weapons Case the majority declined to rule on the question of nuclear weapons under a theory of belligerent reprisal, although they noted that the peacetime use of nuclear weapons as a reprisal would be flatly illegal. They did observe that belligerent reprisals would, like self-defense, be governed by the principle of proportionality. See id. Judge Schwebel clearly stated in his dissenting opinion that even if nuclear weapons were generally outlawed, belligerent reprisal could authorize their use if, under the surrounding circumstances, the use of nuclear weapons was otherwise proportional. Id. at 83. Schwebel added that if there was a treaty governing the use of nuclear weapons which contained a specific prohibition against the use of nuclear weapons "in reprisal" or in "any other circumstances" that treaty obligation would vitiate any right of use of nuclear weapons under the doctrine of belligerent reprisal. Id. at 83. Given the unequivocal language in ANWFZ Protocol I that parties must not use or threaten use of nuclear weapons against a treaty party but may withdraw from ANWFZ Protocol I if their supreme national interests are threatened (after a 12-month waiting period) it would be difficult for any ANWFZ Protocol I party to argue that Schewel's "under any circumstances" test does not apply since the supreme national interests clause provides states an out-albeit a poor one-which belligerent reprisal would otherwise address.
119. See Big Powers' Doubts Pose Problems for Southeast Asia Nuclear Ban, Agence France Presse, Dec. 16, 1995, available in LEXIS, World Library, AFP File. The Zone of Peace and Neutrality (ZOPFAN) is the precursor to SEANWFZ. In tracing the history of ZOPFAN, Djalal, quoting from a high ranking Indonesian military responsible for ZOPFAN's creation, notes: "the growing superpower rivalry in the Indian Ocean [which] is deplored by Indonesia values highly the tradition of an independent and active foreign policy. Indonesia fears such a rivalry could not only lead to an armed confrontation but might also generate undesirable pressures and demands on riparian and hinterland regions." DINO P. DJALAL, THE GEOPOLITICS OF INDONESIA'S MARITIME TERRITORIAL POLICY 104 (1996) (quoting Ali Moertopo, Indonesia and the Indian Ocean, INST. FOR DEF. STUDIES AND ANALYSES, Jan.-Mar. 1977, at 214. Vol IX, no. 3).
120. See U.S. Drops Its Objections to Asia Nuclear-Free Zone, INT'L HERALD TRIB., Aug. 1, 1995, available in LEXIS, World Library, IHT File.
121. See Pact on N-free Zone May Be Signed at ASEAN Summit, STRAITS TIMES, Oct. 14, 1995, available in LEXIS, World Library, Strait File.
122. See Evan S. Medeiros, Southeast Asian Countries Agree to Create Nuclear-Weapon-Free-Zone, ARMS CONTROL TODAY, Dec. 1995-Jan. 1996, at 23; Jakarta Pushes for Draft of ASEAN Treaty, STRAITS TIMES, July 31, 1995, available in LEXIS, World Library, Strait File. The countries include: Brunei, Indonesia, Malaysia, the Philippines, Singapore, Thailand, Vietnam, Cambodia, Myanmar and Laos.
123. See Indonesia Ratifies Southeast Asian Nuclear-Free Treaty, Japan Economic Newswire, Mar. 12, 1997, available in LEXIS, World Library, JEN File.
124. See id.
125. See Big Powers' Doubts Pose Problems for Southeast Asia Nuclear Ban, Agence France Presse, Dec. 16, 1995, available in LEXIS, World Library, AFP File.
126. See U.S. Says Can't Support Southeast Asian Nuke Zone, Reuters World Service, Feb. 7, 1996, available in LEXIS, World Library, Reuwld File.
127. See State Department Regular Briefing, Federal News Service, Dec. 8, 1995, available in LEXIS, News Library, Fednew File.
128. See id.; Talks on ASEAN N-free Zone Pact End, KYODO NEWS INT'L, Nov. 27, 1995, available in LEXIS, Intlaw Library, Intltr File.
129. See SEANWFZ, supra note 8, at arts. 3-4; id. at protocol. Cf. Fig. 2 & 3.
130. See Nirmal Ghosh, US Still Concerned About ASEAN Nuclear-Arms-Free-Zone, STRAITS TIMES, Jan. 25, 1996, available in LEXIS, World Library, Strait File (quoting Assistant Secretary of State Winston Lord); U.S. Dept. of State, Daily Press Briefing, 8 Dec. 1995 (visited 5 Dec. 1997) ; U.S. Says Can't Support Southeast Asian Nuke Zone, Reuters World Service, Feb. 7, 1996, available in LEXIS, World Library, Reuwld File (quoting ACDA's Thomas Graham); Lee Siew Hua, Arms-Free Zone Pact Must Have N-Powers' Backing to Be Effective, THE STRAITS TIMES, Dec. 12, 1995, available in LEXIS, World Library, Strait File.
131. See Evan S. Medeiros, Southeast Asian Countries Agree to Create Nuclear-Weapon-Free-Zone, ARMS CONTROL TODAY, Dec. 1995-Jan. 1996, at 23.
132. See Winston Lord, Southeast Asia Regional Security Issues: Opportunities for Peace, Stability, and Prosperity, 7 DEP'T ST. DISPATCH, May 27, 1996, at 267.
133. ASEAN to Amend Nuclear-Free Zone Treaty to Get Major Powers Support, DEUTSCHE PRESSE-AGENTUR, Oct. 18, 1996, available in LEXIS, World Library, DPA File.
134. See infra note 151.
135. See CTBT, supra note 4.
136. See Yost, supra note 83, at 108, 109; French Nuclear Test Draws Only 'Regrets' from World Powers, WASH. TIMES, Oct. 3, 1995, available in LEXIS, Exec Library, Curnws File; Australia Patches Up Nuclear Row with France, supra note 85.
137. See, e.g., Tollefson, supra note 52.
138. See NWFZC&EE, supra note 53, at 8.
139. See CTBT, supra note 4, at art. I.
140. See infra note 151 and accompanying text.
141. NPT, supra note 1, at art. VII.
142. See id. at art. VI.
143. See Additional Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America, Apr. 1, 1968, 22 U.S.T. 754, 634 U.N.T.S. 762; Additional Protocol I to the Treaty for the Prohibition of Nuclear Weapons in Latin America, May 26, 1977, 33 U.S.T. 1792, 634 U.N.T.S. 362.
144. See Antarctic Treaty, supra note 30.
145. See Seabed Treaty, supra note 34.
146. See Outer Space, supra note 33.
147. See Serge Schmemann, Gorbachev Matches U.S. on Nuclear Cuts and Goes Further on Strategic Warheads, N.Y. TIMES, Oct. 6, 1991, at 1.
148. See Serge Schmemann, Yeltsin Tells Russians of Arms Cutbacks, N.Y. TIMES, Jan. 30, 1992, at A8.
149. STOCKHOLM INTERNATIONAL PEACE RESEARCH INSTITUTE, SIPRI YEARBOOK 1992: WORLD ARMAMENTS AND DISARMAMENT 85 (1992).
150. "There are now only five states worldwide outside the NPT regime, (Brazil, Cuba, India, Israel, and Pakistan)." Arms Control and Disarmament Agency, U.S. Commitment to the Treaty on the Non-Proliferation of Nuclear Weapons (Apr. 2, 1997) <http://www.acda.gov/factshee/wmd/nuclear/npt/commnpt.htm>.
151. See Cyrus Vance, U.S. Assurance on Non-Use of Nuclear Weapons, DEP'T ST. BULL., Aug. 1978, at 52 (quoting President Carter, "The United States will not use nuclear weapons against any non-nuclear-weapons state party to the NPT or any comparable internationally binding commitment no to acquire nuclear explosive devices, except in the case of an attack on the United States, its territories or armed forces, or its allies, by such a state allied to a nuclear-weapons state or associated with a nuclear-weapons state in carrying out or sustaining the attack."); Vice President Al Gore, The Non-Proliferation Treaty: The Case for Indefinite Extension, 6 DEP'T ST. DISPATCH, 24 Apr. 1995, at 353. The 1995 statement was endorsed unanimously by the UN Security Council. See S.C. Res. 984, U.N. SCOR, 50th Sess., 3514th mtg., para. 1, U.N. Doc. S/RES/984 (1995).
152. See Transcript of White House Press Briefing by Special Assistant to the President for Defense Policy Robert Bell, U.S. Newswire, Aug. 14, 1995, available in LEXIS, News Library, USNWR File; Britian Backs Total Ban on Nuclear Test Explosions, Reuters N. Amer. Wire, Sept. 14, 1995, available in LEXIS, World Library, Txtnws File.
153. See CTBT, supra note 4.
154. See DOD PROLIFERATION REPORT, supra note 103, at 29-33.
155. The United States' policy statement would have to stress the commendatory action as an expression of policy and articulate why the United States is not formally becoming a protocol party, otherwise, the action may be perceived as complete acquiescence and a provision lapsing into customary international law.
156. See Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Jun. 17, 1925, 26 U.S.T. 571, 573, 94 L.N.T.S. 65, 67 (entered into force for United States 10 Apr. 1975) [hereinafter Geneva Gas Protocol]; see generally U.S. NAVY, LAW OF THE NAVAL WARFARE, NWP-9 section 10.3 (1989).
157. The United States ratified the Protocol subject to a reservation that the Protocol would not be binding on chemical weapons use during war if another country used such weapons first. See Geneva Gas Protocol, supra note 156, at 571.
158. See 50 U.S.C. � 1521(a) (1994).
159. Interview by Bob Deans with John Holum, Director, U.S. Arms Control and Disarmament Agency, Convention A Tool for Dealing with Rogue Nations, Terrorists, WASH. TIMES, Mar. 10, 1997, at A14.
160. See Walter R. Mears, Walter Mears: The Stalling of a Treaty, Associated Press Political Service, Feb. 20, 1997, available in 1997 WL 2502618.
161. See supra note 14 and accompanying text.
162. See id.
163. See Figure 4.
164. See DOD PROLIFERATION REPORT, supra note 103, at iv.
165. See ANWFZ, supra note 7, Protocol I, arts. I, VI, 35 I.L.M. at 718.
166. See id. Protocol I, art. I, at 718; see also id. art. III, at 707.
167. See id. Protocol I, arts. I, IV, at 718; see also id. arts. III, VI, at 707-08.
168. See generally DONALD KAGAN, ON THE ORIGINS OF WAR AND THE PRESERVATION OF PEACE (1995).
169. See id. at 330-31.
170. See id. at 330-34.
171. Id. at 489.
172. Id. at 521.
173. See Statement by Press Secretary Fitzwater on President Bush's Letter to President Saddam Hussein of Iraq, 1 PUB. PAPERS 36 (Jan. 12, 1991) [hereinafter President Bush Letter]. Aziz reportedly read the "rude" letter but refused to deliver it to Saddam Hussein. See Gerald F. Seib & Robert S. Greenberger, Hope for Peace in Gulf Falters as Baker, Aziz Get Nowhere in Talks, WALL ST. J., Jan. 10, 1991, at A1.
174. President Bush's Letter, supra note 173.
175. JAMES A. BAKER, III, THE POLITICS OF DIPLOMACY 359 (1995).
176. Nuclear Weapons Case, supra note 110, 35 I.L.M. at 842 (Schwebel, V.P., dissenting).
177. One could examine other historical examples or psychological studies that address deterring totalitarian regimes from the use of weapons of mass destruction.
178. See supra notes 107-108 and accompanying text.
179. See Bunn, supra note 108, at 9.
180. See ANWFZ, supra note 7, art. III, Protocol I, art. I, 35 I.L.M. at 707, 718; NPT, supra note 1, arts. I-III, 21 U.S.T. at 486-89.
181. See Figure 1.
182. See Mongolia's New Policy Options, JANE'S INTELLIGENCE REV., Aug. 1, 1995, at 5, available in LEXIS, World Library, Allwld File. Mongolia claims support of its zone from the five nuclear weapons states. See id. Corroboration of Mongolia's claim is not available.
183. See supra note 47 and accompanying text on the Southern Hemisphere proposal.
184. See GROTIUS, MARE LIBERUM 36-39 (1608).
185. See Nuclear Navies Target of Greenpeace Effort, J. COMMERCE, Jul. 13, 1987, at 8B.
186. See supra note 149 and accompanying text.
187. See New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act, No. 86 (1997) (N.2). Section 11 provides: "Visits by nuclear powered ships-Entry into the internal waters of New Zealand by any ship whose propulsion is wholly or partly dependent on nuclear power is prohibited." Id.
188. See LOS Convention, supra note 36, at art. 23.
189. See Charles Aldinger, U.S. Moves to Close More Bases at Home, Abroad, Reuters N. Amer. Wire, Jul. 13, 1993, available in LEXIS, News Library, Wires File.
190. William Drozdiak, Russia, NATO Near Agreement on Structure of New Partnership, WASH. POST, Mar. 12, 1997, at A23.
191. Consider the 22 March 1997 Helsinki Summit at which President Clinton cited the 10 December 1996 North Atlantic Council decision that "NATO members have 'no intention, no plan and no reason' to deploy nuclear weapons on the territory of states that are not now members of the Alliance, nor do they foresee any future need to do so." Russia-United States Joint Statement on European Security, 33 WKLY. COMP. PRES. DOC. 392, 393 (Mar. 21, 1997). At the same March 1997 summit, both Presidents Clinton and Yeltsin candidly reported in a joint statement that they "continued to disagree on the issue of NATO enlargement." Id. Until any summit agreement is fully negotiated and vetted through the legislatures of both countries, it is appropriate to skeptically view any announcement that the NATO enlargement problem has been solved.
192. See North Atlantic Treaty, supra note 59.
193. See id.
194. See NWFZC & EE, supra note 53, at 16.
195. See Treaty on the Final Settlement with Respect to Germany, supra note 54, at 1191.
196. See NWFZC & EE, supra note 53, at 17-18.
197. See Jan Prawitz, Closing Gaps (Feb. 20, 1997) (prepared for 25th Pugwash Workshop on Nuclear Forces, 25-27 Oct. 1996, on file with the Duke Journal of Comparative & International Law).
198. See CTBT, supra note 4, Annex I, 35 I.L.M. at 1458.
199. Letter from J. Prawitz to Author, supra note 47, at 17.
200. See supra note 74.
201. See NWFZC & EE, supra note 53, at 20.
202. See Vladimir Chumak, A Nuclear-Weapon Free Zone in Europe: Possibilities and Expectations, 2 YADERNY KONTROL 12 (1996).
203. See Tlateloco, supra note 19.
204. See NPT, supra note 1.
205. See U.N. INST. FOR DISARMAMENT RESEARCH, A ZONE FREE OF WEAPONS OF MASS DESTRUCTION IN THE MIDDLE EAST at 67, U.N. Doc. UNIDIR/96/24, U.N. Sales No. GV.E.96.0.19 (1996); Convention on the Prohibition, Production, Stockpiling, and Use of Chemical Weapons, opened for signature Jan. 13, 1993, U.N. GAOR, 47th Sess., Supp. No. 27, U.N. Doc. A/47/27/Appendix 1 (1992), reproduced at 32 I.L.M. 800 (1993); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, T.I.A.S. No. 806, 94 L.N.T.S. 65.
206. See ANWFZ, supra note 7, art. 4.2; SPNFZ, supra note 6, art. 5.2; SEANFWZ, supra note 8, art. 7. Although this is not expressly stated in Tlateloco, the U.S. Senate consented to ratification of Protocols 1 and 2 subject to the following understandings: that the provisions did not affect the rights of contracting parties to "grant or deny transport or transit privileges" to foreign vessels or affect freedom of the seas. See ACDA Agreements, supra note 9, at 66-67.
207. "'Stationing' means emplantation, emplacement, transportation on land or inland waters, stockpiling, storage, installation and deployment." SPNFZ, supra note 6, art. 1(d).
208. SEANWFZ, supra note 8, at 642.
209. Id. at 640.
210. In its 1986 accession to the SPNFZ, Russia stated in an understanding that "the permission of transit of nuclear weapons . . . in any form and the calls at the ports and airfields within the limits of the nuclear free zone of foreign ships . . . is incompatible with the nuclear free status of the zone." Soviet Signing of SPNFZ Protocols, supra note 81, at 1.
211. See Baynham, supra note 96.
212. See supra note 132.
213. See Presidential Initiative on Nuclear Arms (visited Sept. 11, 1997) <http://www.acda.gov/factshee/wmd/nuclear/unilat/sandy.htm>.
214. "Visits by nuclear powered ships-Entry into the internal waters of New Zealand by any ship whose propulsion is wholly or partly dependent on nuclear power is prohibited." New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act, supra note 187, at �11.
215. See Safety of Navigation: Designation of Certain Sea Lanes and Air Routes Thereabove through Indonesian Achipelagic Waters (Note by Indonesia), I.M.O. Maritime Safety Committee, 67th Sess., Agenda Item 7, at 2, U.N. Doc. MSC 67/7/2 (1996). Paragraph 12 provides "For the purposes of . . . the safety of Indonesia . . . foreign vessels carrying nuclear substances . . . as well as foreign warships transiting through Indonesian waters from one part of the . . . high seas . . . to another party of the . . . high seas are recommended to use the sea lanes . . . ." Id.
216. During the 1991 Gulf War, U.S. military air transport made stops in Colombo, Sri Lanka and Bombay, India. Critics framed these brief stops as violations of the Indian Ocean Zone of Peace. See Sri Lanka's Decision to Permit U.S., Allied Aircraft to Refuel in Colombo Criticized, Xinhua Gen. Overseas News Service, Feb. 9, 1991, available in LEXIS, News Library, Wires File (concerning criticisms of the Sri Lankan government by an opposition party), and Patrick Cruez, Sri Lanka Turns Away U.S. Warships, One Berths in Bombay, AP, Jan. 30, 1991, available in 1991 WL 6169218 (concerning criticism of the Indian government for permitting a military transport aircraft to stop in Bombay to refuel).
217. See SEANWFZ, supra note 8, arts. 2-3.
218. See id.
219. See Nirmal Ghosh, U.S. "Still Concerned About ASEAN Nuclear-Arms-Free Zone," STRAITS TIMES, Jan. 25, 1996, South-East Asia section, at 29. An interview with U.S. Assistant Secretary of State Winston Lord disclosed that the United States and all of the nuclear powers continued to have problems with the Southeast Asian Nuclear Weapons Free Zone Treaty. He stated that Washington's "single major concern is the fact that exclusive economic zones and continental shelves are included in the terms of coverage . . . and it is of major concern to us." Id.; see also State Department Regular Briefing, Fed. News Service, Dec. 15, 1995, available in LEXIS, Genfed Library, Fednew File; State Department Regular Briefing, Fed. News Service, Dec. 8, 1995, available in LEXIS, Genfed Library, Fednew File.
220. See Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, supra note 34.
221. See LOS Convention, supra note 36, arts. 56, 77.
222. "Each State Party undertakes to respect the Treaty on the Southeast Asian Nuclear Weapon-Free Zone . . . and to not contribute to any act which constitutes a violation of the Treaty or its Protocol." SEANWFZ, Protocol, supra note 8, art. 1.
223. LOS Convention, supra note 36, art. 89.
224. See id. art. 87.
225. See Tom Zamora Collina, South Africa Bridges the Gap, 51 BULL. ATOM. SCIENTISTS 4 (1995).
226. See Fisher, supra note 88, at 13.
227. See id.; see also Libya Urges Arabs to Get Nuclear Arms, AFP, Jan. 27, 1996, available in LEXIS, World Library, AFP File (Libya's official JANA news agency claimed that Arab states "have the right to try by any means to get the same [nuclear] weapons [as Israel]," following a report by a right wing Israeli legislator that Israel would never renounce its nuclear weapons program).
228. See Eddie Koch, South Africa Book Claims White Right Has Nuclear Weapons, Mail and Guardian (Johannesburg), Africa News Service, Oct. 20, 1995, available in LEXIS, NEWS Library, Curnws File.
229. See Worldwide Threats to National Security: Hearing of the Senate Select Intelligence Committee, Federal News Service, Feb. 22, 1996, available in LEXIS, Genfed Library, Fednew File (reporting on the testimony of CIA Director John Deutch). "Despite Libya's pronouncement of its peaceful intent-the underlying motivation . . . continues to be acquiring nuclear weapons." DOD PROLIFERATION REPORT, supra note 103, at 25.
230. See CTBT, supra note 4; NPT, supra note 1.
231. See supra notes 83-87 and accompanying text; see also Thomas McNamara, Asst. Secretary Of State for Politico-Military Affairs, Hearing of the House Int'l Rel. Comm. Asia & Pacific Aff. Subcomm. Regarding Nuclear Issues in the South Pacific, State Department Briefing, Fed. News Service, Nov. 15, 1995, available in LEXIS, Genfed Library, Fednew File.
232. In the short term, it is probable that a Central and Eastern European Nuclear Free Zone is achievable if it extends to promises by the P-5 not to station nuclear weapons in the zone, use zonal territories as a "launch site" (following the East German model, see supra note 54) for nuclear weapons or nuclear armed missiles targeted against a Treaty or Protocol party (particularly Russia) or test nuclear weapons inside the zone. A more expansive agreement which includes legally binding negative security assurances not to "use of threaten to use" nuclear weapons inside or respecting the zone between the P-5 would be controversial and difficult to negotiate.