The Nuclear Weapons Non-Proliferation Articles I, II and VI
of the Treaty on the Non-Proliferation of Nuclear Weapons
Hon. Brian Donnelly *

I have been asked to speak about Articles I, II and VI of the NPT. Without wishing to minimize the importance of other Articles of the Treaty. I think it is probably true to say that these are the Articles which most people think of as being the essence of the Treaty. They lie at the heart of the bargain which is fundamental to the NPT . Articles I and II embody the commitment of States Parties , other than the nuclear weapon States, not to acquire nuclear weapons. Article VI spells out the commitment of the nuclear weapon States to negotiate in good faith effective measures relating to the cessation of the arms race and nuclear disarmament. Much of the argumentation at the Review and Extension Conference will be about whether, or to what extent, the bargain has been kept.

What I would like to do today, therefore , is to look back at what the negotiators of the Treaty and its original signatories believed they were committing themselves to by subscribing to these Articles. I hope this will help to provide a yardstick against which performance then may be measured. For reasons which will probably become obvious as I go on, I shall not pretend this is an entirely objective view - too many of my sources are British or American. But, on the other hand, I shall try not to be partisan and I am certainly not giving a British government view.

At risk of boring some of you who have been in this business much longer than I have, it is worth recalling the way in which the Treaty was negotiated because this significantly affected both its form and content. The formal negotiating body was the Eighteen Nation Disarmament Committee. It first met in 1962 and was meant to have 8 NAM Members (Brazil and Mexico represented Latin America), 5 Eastern and 5 Western. But in practice France never participated. The US and Soviet Union were co-chairmen and the negotiation proceeded, rather peculiarly, on the basis of drafts submitted to it by the co-chairs: at first rival drafts, then separate but identical drafts and finally a joint draft. The co-chairmen held bilateral discussions and there were consultations between each chair and its allies. It was more difficult for the NAM countries to bring influence to bear, though they certainly did this in the ENDC itself.

Although the NPT was not completed until 1968, the negotiation of Article I and II was completed during 1965 and 1966. For most of the period, the issue which dominated the negotiation was whether or not Article I should preclude the possibility of the transfer of nuclear weapons to a multilateral entity as well as to individual NNWS. Against the background of discussions in NATO on the possibility of a multilateral nuclear force, the US wanted to leave this possibility open. Per contra, the SU was opposed to this (particularly the thought of the FRG gainings even indirect access to nuclear weapons). They were also unhappy about the NATO ¨dual key¨, arrangements whereby the NNWS owned nuclear delivery systems, but the warheads were kept in US custody. The United Kingdom had a more parochial - but vital interest - in not precluding US/UK nuclear co-operation.

The US and Soviet Union eventually agreed on language, which was that which was finally agreed in the Treaty, in December 1966. This was deliberately vague in some respects - both to facilitate agreement and because of the intrinsic difficulties of definings terms such as ¨transfer¨, ¨control¨ and ¨manufacture¨. The clearest indications we have of what underpinned the US/Soviet agreement, and what Article I was understood by the co-chairmen to mean, is to be found in 4 Q and A which the US handed to the Soviet Union in April 67 and which was attached to the letter submitting the NPT to the Senate for advice and consent.

These Q and A had been given to the Soviet Union on the basis that if the US explicitly objected, the US would not go forward with the Treaty. The Soviet Union neither consented nor objected.

I will make available the exact text of the Q and A - but what they make clear is the following:

Article I prohibits the transfer of nuclear weapons, but not nuclear delivery systems. It does not prohibit consultation and planning on nuclear defence among NATO Member nor does it prohibit “dual key¨ arrangements. But it does prohibit transfers to a multilateral entity, unless that entity has a federal identity with a unitary foreign policy i.e. a federal Europe could succeed to the British or French nuclear status, but NATO couldn´t. This has obvious relevance to the resurgence of talk about a European defence identity.

The United Kingdom´s specific concern is taken care of by the careful distinction between the first and second clauses of Article I which have the effect of prohibiting the transfer of weapons by NWS to any other State, but only prohibits assistance being given to NNWS.

The US Senate hearings on the Treaty also provide some clarification of the terms ¨control¨and ¨transfer¨- at least so far as the US was concerned - but no-one contested it at the time. This suggests that ¨control¨ means the independent power to use nuclear weapons. The implication of this is to reinforce the idea that a negative veto - ie the power to prevent the use of weapons which is embodied in a ¨dual key¨system does not constitute ¨control¨. The term ¨transfer¨ was defined as the giving up of ¨custody of or any ownership interest in” nuclear weapons.

This may seem a rather academic argument but the importance of these terms has recently been highlighted by the controversy over whether Ukraine could claim to be a nuclear weapon State by virtue of its ability to prevent the launch of former Soviet missiles on its territory and its claim to ¨ownership¨ of them. Fortunatelly with Ukranian accession to the NPT that issue has been resolved and Ukraine has accepted its Non-Nuclear Weapon State Status.

A final point on Article I. Brazil and India were potentially concerned that the terms of the Article did not show transfers of nuclear materials for peaceful nuclear explosions. The NWS argued that this was because it was impractical to distinguish between transfers for weapons or peaceful purposes - the only test could be the intent of the recipient which would not be subject to any objective measure. India and Brazil, however, saw this as further evidence of the discriminatory nature of the Treaty. This issue has been overtaken by time: few if any States now think peaceful nuclear explosions are either economically or environmentally viable.

Article II is more straightforward and did not raise so many difficulties. But I should draw attention to one aspect which Ambassador Shaker has described as a possible loophole, although US negotiators have denied this. It concerns the theoretical possibility that a NNWS might give assistance - either to another NWS or to a NNWS not Party to the Treaty. The UAR (as then was) proposed an amendment to Article II to deal with this problem, but it was rejected by the Co-Chaiman on the grounds that any NNWS which acted in this way could be assumed to be in breach of the Treaty since the only plausible grounds for doing so would be the eventual acquisition of nuclear weapons for itself. The UAR eventually withdraw on the understanding that this was a formal clarification. But it seems likely that underlying the US-Russian resistance to what was, on the face of it, an anodyne proposal was a fear that it would open up the whole of Articles I and II to still further amendment.

Let me turn now to Article VI. If the super powers made the running on Articles I and II, the NAM came into their own on Article VI. The NWS and the NAM, together with some other NNWS had very divergent views about the appropriateness of including in the Treaty any language relating to nuclear disarmament.

In November 1965 the UNGA passed Resolution 2028 which said inter alia that the Treaty should embody an acceptable balance of mutual responsibilities and obligations of nuclear and non-nuclear States. This was the basis of the NAM position. The NWS argued that non-proliferation had intrinsic value in its own right and was but one of a range of measures related to nuclear disarmament, each of which should be pursued separately. Any attempt to link them in one comprehensive measure would be self defeating since it would be too complex and could prevent any progress at all. Moreover, in the circumstances of the late 1960´s the NWS were simply not prepared to give legally binding commitments to other nuclear disarmament measures.

As a result the development of Article VI was on the following lines:

• the separate US and Soviet drafts of 1965 contained only very weak preambular language on related arms control and disarmament measures, with both of them (and the UK) arguing that an NPT should be pursued for its own sake without linkage to other measures;
• the NNWS began by arguing that on the contrary the NPT should not be just about containing horizontal proliferation but also about stopping vertical proliferation, and should either contain specific measures designed to do this or have its future clearly linked to their future achievement;
• by early 1967 it was apparent to most NNWS that the NWS would agree to neither of these approaches and they began to focus their efforts on having the main body of the Treaty include language that would put a legally binding obligation on the NWS subsequently to agree nuclear arms control and disarmament measures;
• in response the identical US and Soviet drafts of 24 August 1967 incorporated stronger preambular language on these topics, but still did not contain any language in the main Treaty text;
• the NNWS continued to press for language in the main Treaty text, but, while some continued to press for this to require future agreement on nuclear arms control and disarmament measures, Mexico and others suggested that a committment mereley to pursue negotiations for such measures would be sufficient;
• the identical US and Soviet drafts of 18 January 1968, in addition to the preambular language already in their 1967 drafts, contained for the first time an Article (Article VI) containing such language (nearly but not quite in its final form;
• the NNWS argued that the language of the Article was not quite strong enough and that there should be an additional Preambular Paragraph specifically about testing;
• the joint US and Soviet draft of 11 March 1968 introduced an additional Preambular Paragraph on testing and a slightly strengthened Article VI (it now included the words “at an early date” after “cessation of the nuclear arms race”, and inserted “nuclear” before “disarmament” at the end of the first clause);
• there was continued criticism of this language as insufficient by NNWS, but, apart from slightly strengthening one of the Preambular Paragraphs, the joint US and Soviet drafts of 31 May 1968, which became the final text, introduced no other changes.

It is also worth noting that the evolution of the review, duration and withdrawal provisions was to some extent related to the evolution of the arms control and disarmament provisions, since the less they were able to achieve on the latter the more the NNWS wanted stronger review and weaker duration and withdrawal clauses.

In conclusion I will make two further observations. First in preparing this paper I was struck by the fact that so many of the arguments being used in 1968 are still being used today. On the other hand although many NAM Countries remain dissatisfied with the disarmament provisions of the NPT and despite gloomy predictions that the Treaty would soon unravel, the NPT has gone on to become the most universally supported arms control Treaty that we have. This suggests that a large number of States have concluded that despite its shortcomings the NPT brings them worthwhile security benefits.

ANNEX

Question on the Draft Non-Proliferation Treaty asked by U.S. Allies together with answers given by the United States.

1.Q. What may and what may not be transferred under the Draft Treaty?

A. The Treaty deals only with what is prohibited, not with what is permitted.

- It prohibits transfer to any recipient whatsoever of "nuclear weapons" or control over them, meaning bombs and warheads. It also prohibits the transfer of other nuclear explosives devices because a nuclear explosive devie intended for peaceful purposes can be used as a weapon or can be easily adapted for such use.

It does not deal with, and therefore does not prohibit, transfer of nuclear delivery vehicles or delivery systems, or control over them to any recipients, so long as such transfer does not involve bombs or warheads.

2.Q. Does the Draft Treaty prohibit consultations and plannings on Nuclear Defense among NATO Members?

A. It does not deals with allied consultation and planning on nuclear defense so long as no transfer of Nuclear Weapons or control over them results.

3.Q. Does the Draft Treaty prohibit arrangements for the deployment of nuclear weapons owned or controlled by the United States within the territory of Non-Nuclear NATO members)

A.It does not deal with arrangements for deployment of nuclear weapons within allied territory as this do not involve any transfer on nuclear weapons or control over them, unless and until a decision were made to go to war, at which time the Treaty no longer be controlling.

4.Q. Would the Draft prohibit the unification of Europe if a nuclear-weapon State was one of the Constituent States?

A. It does not deal with the problem of Europe Unity, and would not bar succession by a new federate european State to the nuclear status of one of its former components. A new federate european state would have to control all of its external security functions including defense and all foreign policy matters relating to external security, but would not have to been so centralized as to assume all governmental functions. While not dealing with succession by such a federate State, the Treaty would bar transfer of nuclear weapons (including ownership) or control over them to any recipient, including a multilateral entity.


* Biographic Note

Brian Donnelly is a member of the British Diplomat Service. He has been Head of the Non-Proliferation Department of the Foreign and CommonWealth Office since 1991 and, in that capacity, has represented the United Kingdom at the Three Preparatories Committees for the NPT Revision and Extension Conference.

Before taking up his present appointment he served in a variety of posts including at the United Kingdom Mission to the United Nations in New York, Singapore, and Athene.