Questions
of Command and Control: Chapter
Two: NATO Nuclear Sharing: What it is, The debate in the NPT over
nuclear sharing makes a detailed understanding of the nature of NATO’s
nuclear sharing arrangements essential. 2.1
Nuclear Sharing or Proliferation? During the late 1950’s
and the early 1960’s, intense discussions were held within NATO on what
form of nuclear sharing to establish within the Alliance. Some European
allies – Germany among them – pressed the US to allow them some kind of
participation in nuclear planning, decision-making, and command and control,
since they wanted a minimum of a strong say in decisions that could put the
very existence of their nations at stake. However, the declared NWS wanted
to limit access to nuclear weapons by other parties. As a compromise, the
system of “nuclear sharing” was established in NATO in the mid-1960s,
and its basic functions have remained unchanged ever since. As early as 1964, a once
top-secret description of US policy outlined the consequence of deploying
nuclear weapons on aircraft owned by non-nuclear members of NATO. It read: “As
a result of NATO’s commitment to the nuclear mode of defence, the
non-nuclear NATO partners in effect become nuclear powers in time of war”.[32] The Nuclear Planning Group
(NPG) was formed in 1966 to allow European NATO allies participation in
nuclear decision-making as well as in discussions about the Alliance’s
nuclear policy and doctrine. The NPG’s “Political Principles”, last
updated in 1992, contain guidelines for nuclear planning, selective use of
nuclear weapons and major nuclear response, consultations, and
considerations for the employment of nuclear weapons.[33] European NATO members were
given a political role in decisions on the use of nuclear forces under NATO
command. However, they could not order their use. The US National Command
Authority (NCA) retains the launch codes for use of US weapons in Europe and
elsewhere. Thus the US NCA has ‘positive control’ over all these
weapons: they cannot be armed without a US presidential decision. In peacetime, all US weapons strictly remain under custody of US forces. However, in 1969, then Chairman of the Joint Chiefs of Staff General Earle G. Wheeler told the Senate Armed Services Committee that: “All [nuclear] weapons in NATO with the exception, of course, of those possessed by the British, are under our custody and control at all times, and will remain so until there is a war, at which time the President can authorize the release of these weapons to our allies”.[34] (Emphasis added) In other words, once the President has given the order to use nuclear weapons, control over some US nuclear weapons can be handed over to non-nuclear NATO allies. After the order has been given and the aircraft has taken off with one (or more) armed weapon(s) on board, the weapon is no longer under national US command and control. Instead, the allied pilot now has full control over the weapon (or weapons) and has sole responsibility for delivering the weapon to its (predetermined) target. This is a form of nuclear proliferation, if under very special circumstances. Through the nuclear sharing arrangements, allied pilots are fully trained for nuclear missions, while training with dummy nuclear warheads during peacetime. 2.2
Would Such a Step Violate the NPT? “The
treaty deals only with what is prohibited, not with what is permitted”.[35] The “release” of US
nuclear weapons to NATO allies would appear to be inconsistent with Articles
I and II of the NPT. However, NATO members continue to argue that their
nuclear sharing arrangements are fully compatible with the Treaty. In fact,
the argument about whether NATO nuclear sharing arrangements are compatible
with the NPT dates back to the negotiation of the Treaty itself. The question of NATO
nuclear sharing arrangements was at the center of US-Soviet negotiations on
Articles I and II of the NPT. Originally, the US State Department discussed
the creation of a Multilateral Force (MLF) which would have involved some
type of “joint ownership, manning, and command of a NATO strategic
force”.[36]
The Soviets strongly opposed the MLF, but were quiet on the question
of nuclear sharing arrangements. It seems likely that there are two reasons
for this. First, the US threatened to give up negotiating a NPT if the
Soviet Union objected to nuclear sharing. And second, although the Soviets
could not foresee circumstances in which they would wish to create a Warsaw
Treaty Oganisation (WTO) MLF, the NATO nuclear sharing precedent might, if
necessary, have proved useful for the Soviets in the WTO context, as it made
possible similar arrangements within the WTO. It is likely that the
widespread objections to the MLF and to nuclear sharing arrangements in
general led the US and its allies to observe very tight secrecy when it came
to the details of NATO’s sharing arrangements. In some cases, NATO allies
were even forbidden to discuss these arrangements amongst themselves; only
bilateral discussions with US authorities were permitted.[37] In May 1966, President
Lyndon Johnson was reported to have instructed the State and Defense
Departments “to seek new forms for nuclear coordination within NATO that
might be less objectionable to the Soviets than an MLF”.[38] The compromise language
for Articles I and II which was eventually agreed was intended by the US to
close the option of an MLF or any multilateral nuclear-weapons entity, but
not to preclude the existing NATO sharing arrangements, including the newly
formed NPG. During the negotiations,
the US informed the Soviet Union that a Treaty interpretation, indicating
that allied consultation and “two-key” arrangements would not be barred,
was essential for its allies. The Soviets were told that an interpretation
to this effect would be made public during Senate hearings on the Treaty.
They were told that if they publicly disagreed with this interpretation, the
US would have to reconsider its position of support for the Treaty.[39] The background of US
opinions of Articles I and II were forwarded to Secretary of Defense Clark
Clifford prior to the NPG meeting at The Hague on 18-19 April 1968. Under
Secretary of State Nicholas Katzenbach wrote: “I believe you should be
familiar with the US interpretations of Articles I and II of the
Non-Proliferation Treaty regarding alliance arrangements for nuclear
defense. The FRG [Federal Republic of Germany] has requested in particular
that we make it clear that the realization of the NPT will not affect the
work of the NPG”.[40]
In other words, the US and its NATO allies did not expect their mutual
defense arrangements to be constrained by new treaty commitments. The key document on the US
interpretation of Articles I and II is entitled Questions
on the Draft Non-Proliferation Treaty asked by US Allies together with
Answers given by the United States. (See Annex 1.) The Questions
and Answers document was enclosed with a letter from Secretary of State,
Dean Rusk, to President Johnson and thus is often referred to as the Rusk
letter. It was transmitted to the Senate on 9 July 1968, along with other
relevant documents, for consideration during the Senate ratification
hearings on the NPT. According to available documents, this was first time
the US made public its interpretation of the NPT, eight days after the NPT
signing ceremony had taken place, at which the first 56 nations had signed
the Treaty. The Questions
and Answers was designed to give an interpretation of the NPT which
allowed NATO nuclear sharing, based on the idea that the Treaty dealt only with prohibited matters. They indicate four areas that
the Treaty “does not deal with” and therefore, in the US view, does not
prohibit. The first question asked
what may and may not be transferred under the Treaty. The US answered that
the Treaty prohibits the transfer of nuclear bombs, warheads or nuclear
explosive devices, but “does not deal with, and therefore does not
prohibit, transfer of nuclear delivery vehicles or delivery systems or
control over them”.[41]
This interpretation was intended to allow continued cooperation on
development of delivery systems and continued allied procurement of
missiles, artillery systems and aircraft capable of delivering US nuclear
weapons under NATO nuclear sharing arrangements. The second question
asked whether the treaty prohibits nuclear defense planning among
NATO members. The US position stated that the NPT “does not deal with
allied consultations and planning on nuclear defense so long as no transfer
of nuclear weapons or control over them results”.[42]
This answer was designed to allow information exchange within NATO’s
system of nuclear sharing. This includes NNWS participation in Programs of
Cooperation, drafting target plans, obtaining information about how
different weapons would be used against different targets, and other aspects
of the work of the Nuclear Planning Group, such as consultations on the use
of nuclear weapons.[43] The third question was the
most crucial one. It asked whether the Treaty prohibits the deployment of US
nuclear weapons on NNWS NATO allies territory. In the US view, the NPT
“does not deal with arrangements for deployment of nuclear weapons within
allied territory as these do not involve any transfer of nuclear weapons or
control over them unless and until a decision were made to go to war, at
which time the treaty would no longer be controlling”.[44] This answer, that the NPT
“would no longer be controlling” once a decision has been made “to go
to war”, is crucial to the US interpretation. The US definition of
“control” over the weapons, meaning that the weapons cannot be launched
without a decision of the US president, is also critical. Thus,
“control” over US nuclear weapons would only be transferred to NATO
allies in the event of war, when the US considered that the Treaty was no
longer binding. However, the implication of
this interpretation is that the use of US nuclear weapons by allied forces
would be illegal under the NPT if the Treaty was binding in wartime.
Non-NATO diplomatic sources who confirmed knowledge of the Nuclear Planning
Group have also stated that they knew nothing about nuclear sharing
agreements at the time of signing and ratifying the NPT. However, they did
know of these arrangements nearly 20 years later, when they included fresh
language to the effect that the NPT would be controlling “under any
circumstances” in the 1985 NPT Review Document. The formula was intended
to close the NATO nuclear sharing loophole, and to ensure that all countries
understood the NPT to be controlling at all times.[45] Three issues of political
importance arise from the Questions
and Answers. The first issue is the question of which states were
informed of these interpretations of the draft NPT, how and when they were
informed, and whether they can be considered to have consented to the US
interpretations. The second issue results from weaknesses in the US
definition of “control”. The third concerns the question of when the
Treaty is considered to be “controlling”. 2.3
1968: When Were UN Members Informed? As early as 1966 Leonard
Meeker, Legal Adviser to the US Department of State warned: “Should
we decide to leave the wartime exception implicit we would want to make
perfectly clear at Geneva what we were doing, lest we later be accused of
having negotiated a treaty under false pretenses”.[46] In February 1969, eight
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 Questions
and Answers “were made available to key members of the ENDC [Eighteen
Nation Disarmament Committee – the multilateral forum conducting
negotiations on the treaty]. They have now
been made available to all members of the UN, and an indication that this is
the way the United States proposed to proceed. There has been no indication
of objections”.[47]
(Emphasis added) By depositing this statement in the US Senate records, it
was assumed to be known by all NPT signatories.[48]
However, since even “key ENDC members”, such as the Swedes,
appear to have been unaware of the existence of the details of NATO’s
nuclear sharing arrangements, such as the Programs of Cooperation, the value
of the Questions and Answers to them would have been limited. The US and its
NATO allies were asking other nations to sign the NPT knowing they would be
unaware of NATO plans to circumvent the Treaty, and making a pretense of
informing of NATO’s intentions with a somewhat cryptic set of
reservations. The Questions
and Answers had been shown to NATO allies in early April 1967, 13 days
prior to tabling of the draft treaty text at the Geneva-based ENDC.
Therefore, NATO’s non-nuclear members were informed in time to indicate
their consent or dissent to the US NPT interpretation. However, it appears,
that with all likelihood they were the only non-nuclear nations which were
fully in a position to do so at the time. Despite intensive efforts,
the authors of this report were unable to obtain evidence which demonstrated
that the contents of the Questions and
Answers were distributed to
all UN members prior to 1 July 1968, when the first 56 nations signed the
NPT or that the Questions and Answers
was made publicly available prior to 9 July 1968. In a letter written by
Under Secretary of State Nicholas Katzenbach to the Secretary of Defense
dated 10 April 1968, it was made clear that it was deliberate policy to
ensure the Rusk letter interpretations should become available to other
signatories only after the Treaty was signed. “We do not believe it would
be in our interest or that of our allies to have a public discussion of the
US interpretations prior to the time when the NPT is submitted to the Senate
for advice and consent”.[49] Fisher implies that the US
was somewhat selective in revealing the details of its interpretations. He
told the Senate Foreign Relations Committee that the Questions
and Answers document was “seen by the Soviets and key members of the
ENDC before it was made public and there was no objection. In view of the
fact it is public, and has been referred to on a public hearing, I assume
all countries in the world are on notice of our intention”.[50] As a consequence, states
which were neither NATO members nor “key ENDC-members” may have had no
formal notification of the details of the US interpretation prior to the
publication of the US Senate hearings covering NPT ratification at the
earliest – considerably after many states had signed the Treaty. It is
highly likely, for example, that Ireland (the country which proposed the UN
resolutions that led to the NPT) ratified the NPT on 1 July 1968 without
prior information on this interpretation. Indeed, diplomatic sources
involved at the time recall that the US deliberately acted to hide the Questions
and Answers from members of the NAM until after the signing of the NPT. In effect, it is likely
that those nations which sent representatives to US Senate hearings on NPT
ratification, and gathered the relevant documents prior to or during the
meeting, had access to the Rusk letter once the US ratification process was
underway. Those who did not may have seen the document only after the
proceedings of the hearings were available in print. Further, an important
omission in the process is that the US did not deposit its interpretation
when it signed the NPT. It is common practice for states to deposit their
reservations and interpretations about a treaty upon submission of articles
of ratification to the depositary body or state. Eighteen countries did so
prior to or upon signing the NPT, some non-nuclear NATO members even
referring indirectly to the Questions and Answers. The US, however, did not deposit any
declaration, and consequently not informed additional countries of
its interpretation. Therefore, the question
arises as to how non-NATO members could have given informed consent to
nuclear sharing arrangements, the details of which remain classified to this
day. Fisher admitted that even the Soviets had not “indicated acquiescence
or agreement because they can’t be asked to agree about certain
arrangements that we keep secret”.[51] Back in 1966, then US
Secretary of Defense Robert McNamara had promised that the US was willing,
“to make every effort to explain both our nonproliferation and our NATO
nuclear sharing policies and to demonstrate beyond any reasonable doubt that
there is no conflict between them”.[52]
Neither the US nor NATO appears ever to have lived up to this commitment.
For non-NATO members it must have been difficult or even impossible to judge
or comment on the validity of US interpretations concerning nuclear sharing. Therefore, in order to
determine the validity of US interpretations and the continuance of nuclear
sharing under them, the US must state publicly which governments were
informed about the contents of the Questions
and Answers, and when they were informed. The question that remains is
whether State parties 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?[53] “The
treaty should be void of any loop-holes which might permit nuclear or
non-nuclear powers to proliferate, directly or indirectly nuclear weapons in
any form”. Principle
(a), UN General Assembly Resolution 2028 (XX), 19 November 1965. In 1965, the United Nations
General Assembly called for a non-proliferation treaty that was “void of
loop-holes”. However, by interpreting the NPT as dealing “only with what
is prohibited” and not with what is allowed, the US introduced a major
loop-hole for nuclear sharing. This directly contradicts the demand in the
Treaty that it should be “In conformity with resolutions of the United
Nations General Assembly calling for the conclusion of an agreement on the
prevention of wider dissemination of nuclear weapons”.[54] All US administrations have
consistently argued that NATO shared nuclear command and control is legal
because the US guarantees to maintain positive control over all its nuclear
weapons in peacetime. It is this interpretation
that allows NATO NNWS to make every preparation in peacetime for the
employment of nuclear weapons during war. Moreover, this interpretation
introduces a loop-hole in the NPT that others may follow. For example,
Belarus, a former Soviet republic, stated that the NPT was the “moral and
legal guideline… that finalized the political decisions” behind its
renouncement of its nuclear weapon regime.[55]
However, Russia, with the acquiescence of Belarus, could reintroduce nuclear
weapons on the territory of Belarus for use by Belorussian armed forces.
China could decide to create nuclear sharing arrangements with North Korea,
or Pakistan (not an NPT party) could do the same with Afghanistan, a NNWS
party to the NPT. All this would be consistent with the US interpretation of
the Treaty, supported by NATO allies. Simply put, NATO has established a
pattern it does not want others to emulate. Even the US definition of
“control” poses other questions with regard to the NPT: what
precautions has NATO taken to avoid a national pilot violating NATO orders
after take off? What if he were to execute a mission different from his
orders, such as a mission ordered by national rather than NATO authorities?
What precautions has NATO taken to ensure all pilots return to their home
base if a decision is taken to break-off nuclear operations? To further complicate the
situation: to whom would the control of nuclear weapons be transferred when
the decision is taken that NATO would go nuclear? Earlier discussions have
focused on the question of whether loading a fully armed nuclear bomb onto
an aircraft piloted by a citizen of a NNWS would constitute a transfer of
control over the nuclear weapon to that NNWS. This question is legitimate,
but it is not the only question that needs to be answered. In wartime,
NATO’s national air force units would be assigned to the Alliance, a
multinational entity. The US interpretation itself states that “the treaty
would bar transfer of nuclear weapons (including ownership) or control over
them to any recipient, including a multilateral entity”.[56]
Yet no discussion has taken place as to whether a transfer of nuclear
weapons to a multinational entity, such as NATO, would be legal under the
NPT in wartime. This is why the wartime exclusion question is of core
importance. 2.5
Does the Treaty Apply in Time The US interpretation made
public in the Rusk letter indicated that the Treaty would not be binding
once a decision had been made to “go to war”.[57] Internal US
interpretations at the time and statements by US officials indicate that
this was taken to mean ‘general war’. (See below) The US government was aware
that NATO arrangements were in conflict with Treaty provisions, so it had
created a fallback position. During the NPT negotiations, the US pushed
strongly to include wording which, in its interpretation, would make the
Treaty invalid in times of war. In a 1966 secret memorandum, Adrian Fisher
explained how the US should proceed with respect to this problem: Under these
bilateral arrangements [within NATO], the US nuclear weapons available for
use by allied forces assigned to NATO in the event of hostilities could, of
course, be transferred to those forces in that event. This would be
justified under the Atomic Energy Act on the ground that, when a war broke
out, the President could exercise his power, as Commander-in-Chief, without
regard to the ban on transfer contained in the Act. A
similar interpretation would make a non-proliferation treaty inapplicable
also. (Emphasis added) The purpose
of such a treaty, as the preamble could be expected to express it, would be
to prevent the spread of nuclear weapons and, by this measure among others,
to avoid the outbreak of nuclear war anywhere in the world. Thus the treaty
has its application in time and in a situation when no conflict has broken
out and when it continues to be possible to prevent such a conflict. Once
general hostilities involving nuclear weapons have occurred, however, the
point of prevention has been long passed, and the purpose of the treaty can
no longer be served. In such circumstances the treaty would not apply, and a
nuclear power would be free to transfer nuclear weapons to an ally for use
in the conflict”.[58] As a result of the US
position, the preamble of the NPT now states that the general purpose of the
Treaty is “to avert such a war”. It does not, however, state that the
Treaty is no longer controlling in time of war. During negotiations in 1966
Leonard Meeker, Legal Adviser to the US Department of State warned: “Should
we decide to leave the wartime exception implicit we would want to make
perfectly clear at Geneva what we were doing, lest we later be accused of
having negotiated a treaty under false pretenses”.[59] Despite this, the US
interpretation was expressed even in the Questions
and Answers in very general terms. On 11 July 1968, Dean Rusk explained
the US position further, stating: “I think... that this is simply a
recognition of what today is almost an element of nature, and that is that,
in a condition of general war involving the nuclear powers, treaty
structures of this kind that were formerly interposed between the parties
would be terminated or suspended”.[60] Nonetheless, the US
administration did not provide a clear-cut definition of ‘general war’.
Instead, Rusk simply gave an example of a conflict that would not relieve
the signatories of compliance: “At
the other extreme would be a limited, local conflict, not involving a
nuclear-weapon-state. In this case the treaty would remain in force”.[61] The concept of ‘general
war’ is incorporated in the famous NATO doctrine of ‘flexible
response’, adopted in MC14/3 in December 1967. This paper, based on
guidance issued by Ministers in May 1967 at the Defence Planning Committee,
was the strategy in place during the final stages of negotiation of the NPT,
and indeed until 1991. NATO regarded ‘general war’ as something unlikely
because of the NATO deterrent. However, this definition also revealed that
general war was now seen as a major conventional war leading to nuclear
attack, to deter which NATO could threaten a ‘general nuclear response’. [I]t is
unlikely that the Soviet Union will deliberately initiate a general war or
any other aggression in the NATO
area that involves a clear risk of escalation to nuclear war.[62] Unlike in earlier
strategies, ‘general war’ and nuclear war are no longer absolutely
identical. This remains the case today. The US definition of ‘general
war’ has remained unchanged since at least 1974. The DoD dictionary refers
to ‘general war’ as “Armed conflict between major powers in which the
total resources of the belligerents are employed and the national survival
of a belligerent is in jeopardy”.[63]
There is no definition of ‘major powers’ given. From this it is clear
that a ‘general war’ can begin as conventional war, and can become a
nuclear war at NATO’s instigation. This was made clear in MC14/3: In the event
of a full-scale conventional aggression, indicating the opening of general
hostilities on any sector of the NATO area, the forces of the Alliance
should, if necessary, respond with nuclear weapons on the scale appropriate
to the circumstances.[64] The term occurs, without
explanation, in the 1991 NATO Strategic Concept. Paragraph 43 reads:
“While in the new security environment a general war in Europe has become
highly unlikely, it cannot finally be ruled out”.[65] The
US and NATO should state publicly whether they still cling to the concept of
“general war”, and if so, what
its definition of that concept is. Only this kind of transparency will
allow other NPT parties to understand in what circumstances NATO views the
Treaty as no longer binding, and whether they believe that this is
acceptable under the NPT. Unless this step is taken, other countries will
not know if and when NATO would, in effect, create six new nuclear-weapon
states. This issue concerned some
diplomats in the 1980s as well. A more restrictive interpretation that
Articles I and II apply “under any circumstances” was agreed by
consensus in the Final Document of the third NPT Review Conference in 1985.
While this final consensus statement is politically rather than legally
binding, the 1985 wording was confirmed by the UN Security Council in its
1991 resolution on Iraq. The Gulf War was a regional conflict with the
potential for involving weapons of mass destruction. The US is the only country
that has explicitly stated that, once a general war has begun, it would no
longer feel bound by the NPT. It has thus created a loop-hole by which it
could withdraw from the Treaty without the three month notice period
required by NPT Article X. In addition, the US approach implicitly creates a
loop-hole for NNWS members of NATO to withdraw from the Treaty and receive
US nuclear weapons in the event of war. Furthermore, NATO is able to create the very conditions under which it would no longer feel bound by the NPT. By retaining the option of first use of nuclear weapons, the interpretation allows the US to decide unilaterally when ‘general war’ has come and thus when it can withdraw from its NPT commitments without prior notice. The first use of nuclear weapons by the US and NATO during a conflict would not occur “unless and until a decision were made to go to war”. The US view is that “in such circumstances the treaty would not apply, and a nuclear power would be free to transfer nuclear weapons to an ally for use in the conflict”.[66]
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