"Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosives or devices directly or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other explosive devices, or control over such weapons or explosive devices".

"Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other explosive devices".

Article II, Treaty on the Non-Proliferation of Nuclear Weapons (NPT)

Recommendations

  We have had some setbacks since the last review in 1995 ­ from the Indian and Pakistani nuclear tests to continued Iraqi defiance of the UN Security Council and aggressive procurement efforts by some determined proliferators. On the other hand, we have made clear progress in helping to keep the ex-Soviet stockpile under control, in implementing modern systems of export controls, in freezing North Korean plutonium production, in strengthening compliance mechanisms, in establishing additional regional nonproliferation arrangements and in expanding adherence to the treaty. We have also made steady progress toward the ultimate goal of eliminating nuclear weapons.

              Madeleine Albright, International Herald Tribune, 7 March 2000

The problem is them, not us. This has been the Western approach for almost the whole time that the nuclear Non-Proliferation Treaty (NPT) has existed.  The problem is us, too. This is one of the main conclusions drawn in this report. Us, the nuclear weapon states and us, the Western countries allied with nuclear weapon states in NATO. It is far from clear that NATO's nuclear and non-nuclear members are in full compliance with their commitments under Articles I and II of the NPT, which they at the same time perceive as the cornerstone of the nuclear non-proliferation regime.

NATO's nuclear sharing arrangements might well violate the spirit, if not the letter, of the NPT. NATO's forthcoming new military strategy might not only prolong, but even increase, the likelihood that NATO might de facto violate the NPT by actually using nuclear weapons under the Alliance's nuclear sharing arrangements. NATO, nuclear sharing and the NPT ­ this a clear case for command and control.

This Research Report recommends: 

• NATO should agree to withdraw US sub-strategic nuclear weapons from Europe e.g. in the context of making them part of a future treaty on nuclear disarmament, such as START III. In so doing, in addition all nuclear weapons would be finally removed to the territory of the country owning them.
• NATO's non-nuclear members should agree to give up the technical capability to use US nuclear weapons in times of war. This would make a strong contribution to safeguarding and strengthening the NPT, but not eliminate NATO consultations on nuclear weapon issues. Thus all non-nuclear members of NATO would contribute to NATO's sharing risks roles and responsibilities in the same way.
• NATO should introduce or agree to a statement by the NPT Review Conference to the effect that the Treaty would be binding to all State parties "under any circumstances".

A combination of these steps could resolve existing doubts over the legality of NATO nuclear sharing under the NPT.

However, if NATO intends to continue the practice of nuclear sharing, the onus is on NATO member states to first, demonstrate that these arrangements are in compliance with the NPT; and second, convince other NPT parties to develop a consensus to this effect.

NATO members, as a prerequisite for such a discussion should therefore publish and disseminate to all NPT parties:   

• a clear definition and description of its understanding of the circumstances under which the NPT is no longer controlling.
• all relevant documents governing NATO nuclear sharing, such as intra-alliance bilateral and multilateral agreements, alliance guidelines for consultations on nuclear issues, relevant alliance politico-military and military strategy documents as well as all other documents and records of Military Committee or NAC decisions that might be relevant  to understand NATO nuclear sharing arrangements.

The documentation should give: 

• a clear picture of what is shared and by which procedures.
• a concise description of all consultation and decision-making procedures and authorities involved in nuclear sharing arrangements.
• complete documentation of all attempts by NATO member states, individually or collectively, to communicate the US and NATO interpretation of the NPT on nuclear sharing to other NPT parties.

This Research Report also recommends that NPT parties undertake intensive discussions at the 2000 NPT Review Conference to resolve the problem of NATO compliance with NPT articles I and II. The aim of such talks would be to reach agreement by consensus at the 2000 NPT Review Conference. 

The 2000 NPT Review Conference should give serious consideration to proposals that call for the adoption of a joint interpretation stating that the NPT is binding during war and peace and that no exceptions to this rule will be construed. 

Concerning NATO military strategy developments this research note concludes: 

• it would  be in the best interest of the NPT, and in the security interests of all NATO members, for NATO ministers to  move slowly. Indeed, they would be wise to reject MC400/2 if it includes any widening in the role of nuclear weapons, and especially if it includes the potential for use of nuclear weapons in counter-proliferation missions.
• At minimum NATO should to delay political approval of MC400/2 until after the NATO arms control, disarmament and non-proliferation policy review has come to a conclusion; NATO's military strategy should take full advantage of the arms control and disarmament options developed under this review. On the other hand, NATO's military strategy should not be used to limit the scope or the results of the arms control policy review.

·        In the interests of transparency, and of the preservation of the NPT, NATO should make public its MC400 series of documents, including MC400/2, as previous core military strategy documents such as the MC14 or MC48 series of documents have now been made public. There is no reason to object to such transparency if nothing objectionable or controversial is contained in the MC400 documents.  

More than 100 nations including South Africa, Egypt and the entire Non-Aligned Movement, have consistently expressed concern that members of NATO, especially Belgium, Germany, Greece, Italy, the Netherlands and Turkey, as well as the United States, are themselves nuclear proliferators, acting against the intent and even the letter of the nuclear Non-Proliferation Treaty. 

These concerns arise because, under NATO nuclear sharing arrangements, European non-nuclear-weapon states (NNWS) could be given wartime access to some of the 180 American-owned and controlled nuclear free-fall bombs stored in Europe.  In fact, pilots from these NNWS states are already trained to fly nuclear missions and their aircraft are equipped to allow them to do so. 

All of this is done in the name of NATO's nuclear sharing arrangements.  NATO recently reaffirmed this policy at its April 1999 Summit in Washington, when the Alliance stated that:  "A credible Alliance nuclear posture and the demonstration of Alliance solidarity and common commitment to war prevention continue to require widespread participation by European Allies". 

At the 1997 Non-Proliferation Treaty (NPT) PrepCom diplomats were, for the first time, presented with historical evidence concerning nuclear sharing in the PENN publication, NATO Nuclear Sharing and the NPT ­ Questions to be Answered. This report used declassified US documents to demonstrate to  NPT members why NATO needed to be questioned over possible breaches of Articles I and II of the NPT, and why further clarification was necessary as to whether NATO nuclear sharing should be considered legal or illegal under the NPT.

NATO's sharing arrangements for nuclear war in Europe seem anachronistic in today's world.  It is hard to imagine an American president ever agreeing to hand a nuclear weapon over to a Belgian or other European fighter pilot.  Nevertheless, NATO countries agree that these arrangements are indispensable.  Thus, one concrete result of these arrangements is their impact on the position of NATO's NNWS when it comes to nuclear arms control and disarmament.  Non-nuclear European NATO countries fail to support disarmament initiatives in the UN or other fora, such as the NPT. 

From the point of view of many states  party to the NPT, the NATO arrangements constitute de facto ­ and are also possibly de jure ­ violations of the Treaty. 

However, the US and NATO refute this. Secretary of State Madeleine Albright said that the participation by NATO NNWS in the activities of the Nuclear Planning Group: 

[I]n no way contravenes Article I of the NPT. This question of NPT Article I and its impact on NATO nuclear forces was debated at length during the negotiation of the NPT. All concerned accepted that the final language of Article I would not preclude the type of nuclear planning, basing, and consultative arrangements that have taken place in NATO since NPT entry-into-force in 1970.

[See Section 1.5, "US Rejection of Any Impropriety by NATO"]

The legal status of the nuclear sharing arrangements depends on whether NPT states accept the US's legal view of how these arrangements are compatible with the Treaty. 

NATO members argue that nuclear sharing is in compliance with Articles I and II of the NPT on the basis of an interpretation that the NPT does not apply during "general war".

[See Section 2.5, "General War"]

However, both the argument that NATO's sharing arrangements were approved by NPT signatories in 1970, and that 'general war' ends the validity of the NPT have been challenged by non-nuclear-weapon states. It is far from clear that most NPT signatories even knew of the NATO arrangements when signing the Treaty. 

In February 1969, six months after the NPT signing ceremony, then Deputy Director of the US Arms Control and Disarmament Agency (ACDA), Adrian Fisher, told the Senate Foreign Relations Committee that the core document containing the US legal point of view on nuclear sharing, the Questions and Answers attached to a letter "were made available to key members of the ENDC [Eighteen Nation Disarmament Committee, which negotiated the NPT]. They have now been made available to all members of the UN [] There has been no indication of objections." By depositing this statement in the US Senate records, it was assumed to be known by all NPT signatories.  However, since even 'key ENDC members' appear to have been unaware of the details of nuclear sharing arrangements or the existence of Programs of Cooperation, the value of the Questions and Answers to them would have been limited.  Others knew even less. It is likely, for example, that Ireland ratified the NPT on 1 July 1968, without any prior information on these US and NATO interpretations. The question that remains is whether states would have objected to signing the NPT had they been aware of the full implications of the US interpretation. Would the NPT be the globally accepted Treaty it is if all nations would have been fully aware of the US interpretations at the time they decided to join the NPT?

[See Section 2.3, "When Were UN Members Informed?"]

In 1999, rhetorical criticism of NATO policy was translated for the first time into action.  Egypt formally proposed that the Preparatory Committee of the 2000 Non-Proliferation Treaty (NPT) Review Conference adopt an interpretation of the Treaty that would outlaw current NATO policies: 

The delegation of Egypt proposes that the PrepCom recommend that the 2000 Review Conference state in clear and unambiguous terms that Articles I and II of the Treaty on the Non-Proliferation of Nuclear Weapons allow for no  exceptions and that the NPT is binding on State parties in  times of peace and in times of war alike.

[See Section 1.4, "The 1999 PrepCom"]    

The nuclear sharing arrangements that NATO now seeks to protect are controversial principally because they are clearly de facto proliferation in times of war. Under the US/NATO interpretation of the Treaty, Russia, with the acquiescence of Belarus, could reintroduce nuclear weapons on the territory of Belarus for wartime use by Belarussian armed forces; China could create nuclear sharing arrangements with North Korea, or Pakistan, not a member to the NPT, theoretically could do the same with Afghanistan, a non-nuclear member to the NPT. Simply put, NATO has established and continues to maintain a pattern it surely does not want others to emulate.

[See Section 2.4, "What Constitutes Control"]

These questions are coming increasingly to the fore because the US is pushing NATO to expand the role of nuclear weapons in Alliance policy. Nominally non-nuclear-weapon states in NATO could then become involved in nuclear war fighting missions against actual or possible possessors of all types of Weapons of Mass Destruction (WMD) who use, or threaten to use, them.

[See Section 3.0, "NATO Nuclear Doctrine After the Cold War: Changes in NATO Nuclear Strategy in 1999"]  

According to US military doctrine, "the fundamental purpose of US nuclear forces is to deter the use of weapons of mass destruction" (nuclear, chemical, and biological) and their means of delivery by hostile governments and non-state actors. The objective is to enhance freedom of action for US and allied forces in out-of-area missions as well as to protect US and allied territories. The mission includes retaliatory strikes once opponents have used weapons of mass destruction. Moreover, it does not exclude preemptive offensive missions. This new strategy was adopted by the US in 1997, when President Clinton issued Presidential Decision Directive 60.

[See Section 3.2, "US Perspectives on NATO Nuclear Strategy"]

The key question is whether the NNWS NATO members who participate in nuclear sharing programs are prepared to accept this new US doctrine. If they do, and allow inclusion of this doctrine in NATO's new military strategy document, MC400/2, currently under development, they would declare their preparedness to use nuclear weapons in a regional conflict short of 'general war'. Nuclear weapons could be used against an opponent, who is a NNWS, but owns other types of WMD or just their means of delivery. In such a case, NATO's NNWS would be in clear and direct violation of the NPT. NATO sources have indicated to the authors that NATO's draft new military strategy, which is currently close to adoption, does not rule out this option.

[See Section 3.1, "Future Directions for NATO Strategy"]

NATO sources have also confirmed to the authors that NATO's new doctrine could bring the Alliance members into conflict with both the NPT and Negative Security Assurances given to NNWS. They are aware that the Alliance's own arms control and disarmament review, currently underway, could be severely undermined or restricted by the new strategy. Furthermore, NATO's new military doctrine might be heavily criticized for the severe blow it would deal to the global non-proliferation regime. However, NATO might argue that strengthening uncertainty for proliferators about NATO's possible reactions in case of the use of weapons of mass destruction helps to effectively deter the use of WMD and thus increases stability.  Now, it simply remains to be seen whether NATO will adopt a widened role for nuclear weapons in MC400/2, its core military strategy document due for approval during spring 2000.

[See Section 3.4, "Threats to the Nuclear Non-Proliferation Regime"]

The purpose of this report is to examine these questions, their implications for the Non-Proliferation Treaty, and to propose solutions to some of the problems they pose.