July/August 2016 | Arms Control Association

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Tuesday, July 5, 2016

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The Dangers of Using Cyberattacks to Counter Nuclear Threats

July/August 2016

Top military and defense officials in the United States are currently contemplating plans to use cyberattack capabilities against enemy missile and command-and-control systems as part of a new push for full-spectrum missile defense.¹

The idea is to augment the current suite of kinetic missile interceptors deployed within the United States, at sea, and on the territory of certain allies with new, nonkinetic capabilities designed to attack, compromise, or destroy enemy missiles before they can be launched. As Brian McKeon, principal deputy undersecretary of defense for policy, explained in a recent testimony to Congress,

A long-range ground-based interceptor missile is test-launched from Vandenberg Air Force Base in California on January 28. [Photo credit: Missile Defense Agency] [W]e need to develop a wider range of tools and that includes the efforts underway to address such threats before they are launched, or “left of launch.” The development of left-of-launch capabilities will provide U.S. decision-makers additional tools and opportunities to defeat missiles. This will in turn reduce the burden on our “right-of-launch” ballistic missile defense capabilities. Taken together, left-of-launch and right-of-launch will lead to more effective and resilient capabilities to defeat adversary ballistic missile threats.²

The end goal is a more robust, affordable, and holistic U.S. ballistic missile defense system,³ designed to protect against limited or perhaps undeterrable conventional and nuclear missile threats from certain states and nonstate actors around the globe.

The concept is being driven by an increasing diversification in the types of missile threats facing the United States and by the growing acceptance that there will never be enough interceptors to address all of these missile threats or enough money to build them. Although the idea of using cyberattacks or other nonkinetic weapons for missile defense is not necessarily new and probably has been discussed in secret in the Pentagon for at least a decade, such options appear to have become increasingly viable for the United States today. In the words of Admiral Archer Macy, former director of the Joint Integrated Air and Missile Defense Organization, “Ballistic missile defense cannot consist simply of defeating the launch, flight, targeting and arrival of all of the missiles an enemy could employ. We cannot simply play catch.”⁴

The desire to disable a missile before it can be launched rather than to intercept it after launch, however, represents a significant shift in mission and planning. This is because it amalgamates traditional protective ballistic missile defense concepts with a new offensive focus on pre-emptive prompt global-strike technologies. Although each of the systems under the prompt global-strike mission is likely to create problems, the use of cybercapabilities to disable missiles before launch is a move with particularly worrying implications for other nuclear-armed states for three key reasons.

• Kinetic missile interceptors are used only after a missile has been launched and the threat has materialized. Cyberattacks, on the other hand, would likely have to be used pre-emptively and be based on prior infiltration of enemy networks. It is therefore a notable transformation of strategy, and it will become more difficult to classify the mission as purely defensive.

• It will be even more difficult to identify the targets of such cybercapabilities and what the capabilities are intended to achieve. Although a limited U.S. ballistic missile defense system is not a serious threat to China and Russia, at least currently, due to their ability to overwhelm the limited number of U.S. interceptors, it is virtually impossible to prove what type of cybercapabilities have been deployed by the United States or other actors and in what quantity.

• The adoption of cyberattack capabilities for missile defense opens up a Pandora’s box of future uncertainty for all nuclear-armed states given the likelihood that other states and potentially nonstate actors will follow suit in developing such options.

Ultimately, such moves would appear detrimental to U.S. goals of strategic stability, arms control, nuclear security, and the safe management of the global nuclear order and may even drive renewed proliferation. The United States therefore needs to think long and hard before it opens up a whole new area of competition and insecurity that it may not win in the long run.

China and Russia

Although the budding U.S. concept of full-spectrum missile defense has not specifically mentioned nuclear weapons systems or particular actors, it is virtually impossible to see how the incorporation of cyberattack capabilities will not be met with great alarm in Beijing and Moscow. Officials in both capitals have expressed concern about the deployment of kinetic missile interceptors in the past two decades, and moves to augment these deployments with a new suite of kinetic and nonkinetic offensive options are likely to magnify this distrust and lead to potentially greater nuclear instability.

Conventional prompt global-strike systems are clearly a major concern, but it is arguably the uncertainty associated with cyberattacks that will prove to be the most problematic aspect of this new approach. Conventional kinetic systems can be quantified, monitored, and perhaps even countered. In addition, they are limited by cost. Cybercapabilities, however, remain inherently nebulous, and it is impossible to estimate their quantity or the extent of the threat. The use of cybercapabilities will also almost certainly require that an adversary’s missile systems be penetrated and perhaps even compromised in advance. As scholar Greg Austin notes, “Strategic nuclear stability may be at risk because of uncertainty about innovations in cyber attack capability.”⁵

Russia already is acutely worried about the vulnerability of its strategic nuclear systems to cyberinterference and may even see cyberattacks as the greatest challenge at the strategic level, while China’s limited nuclear arsenal and posture make it particularly susceptible to disablement through cyber means or otherwise. The worst-case scenario is that “one state could hack into the nuclear command-and-control systems of another, render its weapons unusable, and use the temporary monopoly of power to coerce its target.”⁶ Although it is highly unlikely that the United States could or would want to hack into enemy systems as the precursor to a disarming first strike against an adversary’s nuclear forces, it will be difficult for China and Russia to get this worst-case thought out of their minds. The fact that the stated U.S. desire to be able to strike strategic assets anywhere in the world in either “30 minutes or 300 milliseconds” through conventionally armed missiles or cyberweapons could theoretically be directed toward any adversary seems unlikely to help build trust in the nuclear realm.⁷ For full-spectrum missile defense, these perceptions matter as much as capabilities or intent.

Utilizing cyberattack capabilities for full-spectrum missile defense will almost certainly further undermine strategic stability with Russia and place considerable pressure on the strategic balance with China. Tensions between Washington and Moscow are already high, and cooperation on nuclear security has been suspended. Although both parties continue to implement the New Strategic Arms Reduction Treaty, the prospects for further arms control or reduction measures appear bleak. The introduction of cybercapabilities that could undermine the Russian nuclear deterrent is highly unlikely to help ease these strains.⁸ In fact, the threat of cyber disablement, combined with the development of other U.S. capabilities as part of the full-spectrum missile defense mission, is likely to add to Russia’s desire to modernize and upgrade its nuclear forces and keep them on high alert.⁹ The direct result of the United States using cyberattacks in this way could be increased instability, creating another major impediment to the maintenance of nuclear arms control regimes between Russia and the United States and to the idea of further nuclear cuts. Keeping nuclear missile forces on high alert is also seen by some as a major cyber risk because this makes them vulnerable to a cyberattack that could directly or indirectly lead to a launch.¹⁰

The potential implications of full-spectrum missile defense are perhaps even more acute for China, given its smaller and less sophisticated nuclear arsenal. Chinese planners are concerned about the possibility of a U.S. non-nuclear first strike involving precision missile attacks backed up with increasingly capable missile interceptor systems.¹¹ The idea that China’s deterrent could be compromised through cyberattacks as well will be a major concern. As with Russia, it is difficult to see how adding new cyberattack options to the U.S. arsenal will help improve relations or engender greater trust with Beijing. The new U.S. capability is much more likely to force reconsideration of Beijing’s no-first-use policy and create another incentive for China to build up and diversify its nuclear arsenal. Indeed, China and Russia are looking at developing new high-tech capabilities for the nuclear deterrence mission in response to growing concerns about U.S. plans.¹²

The introduction of cyberattack capabilities also creates a whole range of worrying dynamics for crisis stability and management, given that it will likely never be possible to know whether nuclear weapons systems have been breached and compromised or whether they will work as planned when needed. This problem is magnified in Russia due to the degradation of its strategic forces, problems with early-warning systems, and recent moves to increase the role of nuclear weapons in Russian strategy. In China, Beijing’s rumored sharing of certain components of its command-and-control infrastructure between nuclear and conventional systems raises the prospect that a cyberattack on conventional systems might be interpreted as an attack on nuclear systems.¹³ Including cyberattacks as part of the full spectrum of missile defense may well lead to a compressed escalation ladder, a shortened time frame for nuclear decision-making during a crisis, and a greater incentive to “use them or lose them.” Commanders may incorrectly think they are under attack, fear that nuclear systems had been or could be compromised, or worry cyberattacks might be used to directly cause a nuclear launch. Each of these anxieties might increase the pressure to act first. As analyst Sydney Freedberg has pointed out, “The best defense may be a good offense, but that raises the unsettling possibility that the US might strike first.”¹⁴ It is not inconceivable to see this as the beginning of a possible transition to a condition of Mutually Unassured Destruction, or MUD.¹⁵

People attend an event marking the opening of the new facility for the U.S. Computer Emergency Readiness Team in Arlington, Virginia, on October 30, 2009. [Photo credit: Win McNamee/Getty Images]

In the quest to secure the United States against the threat of missile attack, the employment of cyber- and other new technological capabilities seems likely to create many of the problems it seeks to solve. The deployment of increasingly capable ballistic missile defense systems has become a major impediment in nuclear arms control discussions with Russia. Yet, although a full-spectrum missile defense approach by the United States may mean that the deployment of kinetic interceptors can be slowed or even capped, replacing interceptors with cyber- and other capabilities is unlikely to unblock the road to greater bilateral nuclear cuts or produce stability. The general idea behind U.S. plans to develop cyberwarfare capabilities is almost certain to target rogue actors and limited missile threats, but it will be very difficult to convince others, notably China and Russia, that these capabilities are not directed or at least usable against them. Convincing Beijing and Moscow that the nascent kinetic-based missile defense program is not directed against them has been difficult enough; the unknowns associated with cyberattacks intertwined with the clear possibility for pre-emptive strikes raise the stakes considerably.

Challenges for the U.S.

At the same time that it creates concerns for other states by pursuing cybercapabilities, the United States is highly likely to become vulnerable to the use of cybercapabilities to undermine its own nuclear weapons systems. Concerns in the United States about relying on computers for nuclear weapons management can be traced back as far as the 1960s and early 1970s,¹⁶ but anxieties have grown considerably in the past few years. In 2013 the U.S. Defense Science Board cautioned that U.S. nuclear weapons might be vulnerable to cyberattacks and that future cyberthreats to U.S. nuclear systems “might be impossible to fully defend against.”¹⁷ Two years later, retired General James Cartwright, former head of U.S. Strategic Command, warned that “[t]he sophistication of the cyber threat has increased exponentially…. It is reasonable to believe that the threat has extended itself into [our] nuclear command and control systems.”¹⁸

Although U.S. nuclear weapons and associated command-and-control systems are well protected and “air gapped” where possible, and therefore physically separated from unsecured networks, they are by no means invulnerable to hackers seeking to disable these systems or at least stop them from working as planned. The increasing reliance of all aspects of the nuclear mission on complex software and endless lines of code and the requirement for ever greater connectivity among nodes mean that hackers have numerous potential points of entry. Indeed, a backdoor into naval broadcast systems used to transmit nuclear launch orders was discovered in the 1990s,¹⁹ and in 2012, Thomas D’Agostino, head of the Department of Energy’s National Nuclear Security Administration, revealed that U.S. nuclear weapons and associated systems “are under constant attack” from a “full spectrum of hackers.”²⁰ Although recent moves to bolster the defense of U.S. nuclear systems against cyberattacks,²¹ as well as the establishment of in-house hacker teams at the Pentagon,²² should be welcomed, they are unlikely to be foolproof. This is particularly true in light of the ongoing development of technologies to “jump” the air gap and widespread attempts by U.S. adversaries to use cyberespionage to steal sensitive nuclear-related secrets about these systems from U.S. government agencies, research laboratories, and contractors, possibly as a precursor to future attack.

The problem is particularly pressing given the ongoing upgrade of the U.S. nuclear command-and-control infrastructure and possible plans to replace all three legs of the nuclear triad in the years ahead. The Pentagon has been clear that this involves a transition to relying on “internet like networks” for command and control, and all of these modernization programs almost certainly will entail a greater reliance on computers, software, and code.²³ Although modernization may well allow for greater functionality, processing speed, control, and real-time management, it also makes U.S. nuclear weapons systems and missile defense systems much more vulnerable to hackers and those seeking to interfere with or gain access to sensitive nuclear infrastructure. It also makes the systems increasingly difficult to protect. As General C. Robert Kehler, head of U.S. Strategic Command, put it, “The age of the [U.S.] command and control system might inadvertently offer some protection against the latest hacking techniques.”²⁴ This is because some parts of the system are so old that current cyberattack techniques do not apply to them.

The cyberthreat extends across the U.S. nuclear weapons enterprise and will include all components that rely on networked computers and software, including weapons and delivery platforms, early-warning and command-and-control systems, and secret design and operational information produced and stored by defense contractors and research laboratories.²⁵ The cybersecurity challenge will also include information about the humans that operate these systems.

The threat is bifurcated between attacks designed to disable U.S. systems and prevent them from working and those designed to enable them by indirectly exacerbating a crisis or spoofing systems or directly seeking to cause an unauthorized launch or explosion. The disablement attacks are more likely to come from states, as discussed above; the enablement scenarios are more likely to be perpetrated by nonstate actors. As the Global Zero Commission warned, “Questions abound: could unauthorized actors—either state or non-state—spoof early warning networks into reporting attack indications that precipitate overreactions? Could such hackers breach the firewalls, the air gaps, and transmit launch orders to launch crews or even to the weapons themselves? What if an insider colluded with them to provide access and passwords to the launch circuitry? Might they acquire critical codes by hacking?”²⁶

General C. Robert Kehler, the head of U.S. Strategic Command, speaks during the Air Force Association Air Warfare Symposium in Orlando on February 23, 2012. [Photo credit: U.S. Strategic Command] Protecting against these two different types of cyberthreats arguably requires different and to some extent antagonistic requirements. For example, greater security and protection against both state and nonstate threats might mean a reduction in usability. The problem is that the United States, as well as Russia and to a lesser extent China, appears determined to prioritize the threat of disablement and therefore the ability to ensure weapons can be used over measures that might be taken to guard against outside interference designed to enable nuclear use. This in turn means that there are more opportunities for nonstate actors to attack these nuclear systems, either directly or indirectly through manipulation of information or through so-called false-flag attacks, in which attacks by one party are designed to look like they are conducted by another.²⁷ Bruce Blair, a former missileer and the co-founder of Global Zero, has argued it is at least possible that terrorist groups or other unauthorized actors might have taken advantage of the loss of control of 50 Minuteman missiles at F.E. Warren Air Force Base in Wyoming in October 2010 and caused a nuclear launch.²⁸ Moves to make the use of cybercapabilities against nuclear systems routine are a double-edged sword: using cyberattacks to undermine missile threats from U.S. adversaries might also expose significant vulnerabilities in U.S. systems to other states and other nonstate actors.

Conclusion

The use of cybercapabilities to undermine missile threats to the United States by disabling the missiles before they are launched might seem at first like an attractive, cost-effective, and sensible way of bolstering protection against a serious and growing challenge. Yet, the idea is inherently problematic for a number of reasons, and thought needs to be given before the Pentagon turns this concept into reality. First, the use of cybercapabilities conspicuously transforms the ballistic missile defense mission from one of protection to one of pre-emption. Second, it will add further pressure for states to focus more on the credibility of using their nuclear forces rather than on safety and security against harmful interference by nonstate actors. Third, such moves appear antithetical to virtually all U.S. nuclear proliferation, arms control, and nuclear security objectives. Fourth, it sets a precedent and creates a norm that such attacks or at least planning for them, is acceptable. Finally, it is far from clear that the United States will retain a comparative advantage in this field in future years as capabilities spread, and the United States may find its own nuclear and missile systems vulnerable to cyberattack.

A far better approach to the emerging cyber-nuclear nexus is to consider how an increasingly diverse nuclear environment can best be managed and how an array of new threats can be mitigated and perhaps overcome. The focus of U.S. policymakers should be on how nuclear forces and associated command-and-control systems of all states might be better protected against cyberinterference and how to ensure that hackers cannot cause a nuclear crisis or, in a worst-case scenario, facilitate a nuclear launch. Although better security, training, and understanding are a must for protecting against cyberattacks, the United States might also consider reaching out to other nuclear-armed states in the hope of building trust through various confidence-building measures, perhaps through sharing best practices or exchanging data and intelligence on nonstate threats. This approach also might conceivably lead to discussion of constraints on targeting each other’s weapons or command-and-control systems with cyberattacks and to formal discussion within broader nuclear arms control dialogues and within global forums such as the review conferences for the nuclear Nonproliferation Treaty. The goal of the discussions would be to reach agreement on a moratorium or other constraints on targeting each other’s weapons or command-and-control systems with cyberattacks.

This is undoubtedly a difficult task, not least because of problems of verification, attribution, transparency, and trust. It is worth pursuing because it might help reduce some of the uncertainties and worst-case thinking that surround the cyber challenge. It might even provide a basis for moving toward a safer nuclear environment.

Although it may be true that cyberthreats and nuclear strategy will become increasingly commingled in the future,²⁹ this does not mean that such a nexus should be desired or sought. It is far from clear that the United States will remain immune from the myriad threats to its own nuclear systems posed by cyberattacks. At the same time, it is clearly in the national interest not to make other governments feel increasingly vulnerable and suspicious. The next U.S. president faces a big choice on the future shape of U.S. missile defense, the use of cybercapabilities for pre-emptive attacks on enemy systems, and the full-spectrum concept more generally. Although various techno-military developments undoubtedly will make the nuclear future more uncertain and potentially more complex, a strong decision now to forswear or at least limit the use of cyberattacks against nuclear assets would be an important benchmark for managing this challenge and minimizing the risks of nuclear weapons use in the longer term.

ENDNOTES

1. See Riki Ellison, “Left of Launch,” Missile Defense Advocacy Alliance, March 16, 2015, http://missiledefenseadvocacy.org/alert/3132/; Bill Gertz, “Pentagon Developing Pre-launch Cyber Attacks on Missiles,” Washington Free Beacon, April 14, 2016, http://freebeacon.com/national-security/pentagon-developing-pre-launch-cyber-attacks-missiles/.

2. Brian P. McKeon, Statement before the Senate Armed Services Subcommittee on Strategic Forces, April 13, 2016, http://www.armed-services.senate.gov/imo/media/doc/McKeon_04-13-16.pdf.

3. Thomas Karako, remarks at the Center for Strategic and International Studies (CSIS), Washington, D.C., April 12, 2015, http://csis.org/files/attachments/151204_full_spectrum_transcript.pdf.

4. Admiral Archer Macy, remarks at CSIS, Washington, D.C., April 12, 2015, http://csis.org/files/attachments/151204_full_spectrum_transcript.pdf.

5. Greg Austin, “Costs of American Cyber Superiority,” China-U.S. Focus, August 6, 2013, http://www.chinausfocus.com/peace-security/costs-of-american-cyber-superiority/.

6. Martin Libicki, Crisis and Escalation in Cyberspace (Santa Monica, CA: RAND Corporation, 2012), p. 128.

7. See General James Cartwright, “Whither the Forward-Basing of U.S. Troops?” MP3 audio, 01:34:14, June 4, 2009, http://c689403.r3.cf2.rackcdn.com/090604_militaryforum.mp3.

8. See Andrew Korybko, “U.S. ‘Missile Defense’: Satellites, Lasers, and Electromagnetic Railguns,” Russian Institute for Strategic Studies, September 22, 2015, http://en.riss.ru/analysis/18912/.

9. William Broad and David Sanger, “Race for the Latest Class of Nuclear Arms Threatens to Revive Cold War,” The New York Times, April 16, 2016.

10. See Global Zero Commission on Nuclear Risk Reduction, “De-alerting and Stabilizing the World’s Nuclear Force Postures,” April 2015, http://www.globalzero.org/files/global_zero_commission_on_nuclear_risk_reduction_report_0.pdf.

11. Andrew Futter and Benjamin Zala, “Coordinating the Arm Swing With the Pivot: Nuclear Deterrence, Stability and U.S. Strategy in the Asia-Pacific,” The Pacific Review, Vol. 28, No. 3 (July 2015): 377.

12. Martin Matishak, “The Next Arms Race for the U.S., China and Russia: Hypersonic Weapons,” The Fiscal Times, March 2, 2016, http://www.thefiscaltimes.com/2016/03/02/Next-Arms-Race-US-China-and-Russia-Hypersonic-Weapons.

13. Joshua Pollack, “Emerging Strategic Dilemmas in U.S.-Chinese Relations,” Bulletin of the Atomic Scientists, Vol. 65, No. 4 (July-August 2009): 56.

14. Sydney J. Freedberg Jr., “Joint Staff Studies New Options for Missile Defense,” Breaking Defense, September 16, 2015, http://breakingdefense.com/2015/09/joint-staff-studies-new-options-for-missile-defense/.

15. Richard J. Danzig, “Surviving on a Diet of Poisoned Fruit: Reducing the National Security Risks of America’s Cyber Dependencies,” Center for a New American Security, July 2014, p. 6, http://www.cnas.org/sites/default/files/publications-pdf/CNAS_PoisonedFruit_Danzig_0.pdf.

16. Gordon Corera, Intercept: The Secret History of Computers and Spies (London: Weidenfeld and Nicholson, 2015), pp. 71-72; James P. Anderson, “Computer Security Technology Planning Study,” ESD-TR-73-51, October 1972, http://csrc.nist.gov/publications/history/ande72.pdf.

17. Defense Science Board, “Task Force Report: Resilient Military Systems and the Advanced Cyber Threat,” January 2013, pp. 2, 6, http://www.acq.osd.mil/dsb/reports/ResilientMilitarySystems.CyberThreat.pdf.

18. Robert Burns, “Former U.S. Commander: Take Nuclear Missiles Off High Alert,” Associated Press, April 29, 2015, http://bigstory.ap.org/article/2ae0a33fa1c7402999afb6d55046e2cc/former-us-commander-take-nuclear-missiles-high-alert. When asked about the vulnerability of U.S. systems, retired General James Cartwright responded, “Have they been penetrated? I don’t know. Is it reasonable technically to assume they could? Yes.”

19. Jason Fritz, “Hacking Nuclear Command and Control,” International Commission on Nuclear Non-proliferation and Disarmament, July 2009, http://icnnd.org/documents/jason_fritz_hacking_nc2.pdf.

20. Jason Koebler, “U.S. Nukes Face Up to 10 Million Cyber Attacks Daily,” U.S. News and World Report, March 20, 2012, http://www.usnews.com/news/articles/2012/03/20/us-nukes-face-up-to-10-million-cyber-attacks-daily.

21. Benjamin D. Katz, “U.S. Beefs Up Cyber Defense to Thwart Hacks of Nuclear Arsenal,” Bloomberg, March 24, 2016, http://www.bloomberg.com/news/articles/2016-03-24/u-s-beefs-up-cyber-defenses-to-thwart-hacks-of-nuclear-arsenal.

22. Colin Clark, “As GAO Finds DoD Wobbly on Cyber Policies, Carter Launches HackerOne,” Breaking Defense, April 7, 2016, http://breakingdefense.com/2016/04/as-gao-finds-dod-wobbly-on-cyber-policies-carter-launches-hackerone/.

23. Office of the Assistant Secretary of Defense for Nuclear, Chemical, and Biological Defense Programs, U.S. Department of Defense, “Nuclear Command, Control and Communications System,” in Nuclear Matters Handbook, 2011, p. 53.

24. Eric Schlosser, Command and Control: Nuclear Weapons, the Damascus Accident, and the Illusion of Safety (London: Allen Lane, 2013), p. 475.

25. For more information, see Andrew Futter, “Cyberthreats and Nuclear Weapons,” RUSI Occasional Paper (forthcoming) (copy on file with author).

26. Global Zero Commission on Nuclear Risk Reduction, “De-alerting and Stabilizing the World’s Nuclear Force Postures.”

27. See Andrew Futter, “War Games Redux? Cyber Threats, U.S.-Russian Strategic Stability and New Challenges for Nuclear Security and Arms Control,” European Security, Vol. 25, No. 2 (2016): 163-180.

28. Bruce Blair, “Could Terrorists Launch America’s Nuclear Missiles?” Time, November 11, 2010, http://content.time.com/time/nation/article/0,8599,2030685,00.html.

29. Stephen Cimbala and Roger McDermott, “A New Cold War? Missile Defenses, Nuclear Arms Reductions, and Cyber War,” Comparative Strategy, Vol. 34, No. 1 (2015): 103.

Andrew Futter is a senior lecturer in international politics at the University of Leicester in the United Kingdom. He is the author of Ballistic Missile Defence and US National Security Policy (2013) and editor of the forthcoming book The United Kingdom and the Future of Nuclear Weapons. His current work into cyberthreats and nuclear strategy is funded by the UK Economic and Social Research Council.

Officials are contemplating the use of cyberattack capabilities to counter missile and command-and-control systems. Doing so risks creating new competition and insecurity...

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A French View on the Iran Deal: An Interview With Ambassador Gérard Araud

July/August 2016

Interviewed by Kelsey Davenport and Elizabeth Philipp

Gérard Araud was appointed ambassador of France to the United States in September 2014. A career diplomat, his past positions include director for strategic affairs, security and disarmament (2000-2003) and permanent representative of France to the United Nations in New York (2009-2014). Araud served as the French negotiator on the Iranian nuclear file from 2006 to 2009.

Araud spoke with Arms Control Today in his office at the Embassy of France in Washington, D.C., on May 20.

The interview was transcribed by Elizabeth Philipp. It has been edited for clarity.

ACT: France has been involved in the nuclear negotiations with Iran far longer than the United States—over a decade. Why was achieving an agreement with Iran an important priority for France?

Araud: First, the history is that, in 2002, I was assistant secretary for security affairs and disarmament in Paris and we had the idea of a letter from the three ministers.¹ So it was a French idea. When I actually drafted the first letter, there was a choice about the terms in the letter about enrichment. We could say we are asking to suspend enrichment or to stop enrichment. If we had “to suspend enrichment,” the Russians were immediately on board, but the British were not. If we had “to stop enrichment,” the British were on board, but not the Russians. It was the choice to have the British on board rather than the Russians on board.

In 2002 we discovered the program, and the letter was sent during the summer of 2003. Why? If we had the letter signed by France, Germany and Russia, it would have had absolutely no bearing in Washington, D.C. So the idea was to have the British as a sort of bridge toward the Americans, and I presented the letter to the Americans-—the American was John Bolton, the undersecretary at the time. The Americans told us that it was not a green light, but it was not a red light. So we sent the letter with sort of a yellow light coming from Washington, D.C., and on our side with the promise, the commitment, to [be] totally transparent. Because from the beginning, I knew that there would be an agreement only if the Americans were engaging in the negotiation. So that was the beginning of the story.

French Foreign Minister Laurent Fabius (left) meets his Iranian counterpart Mohammad Javad Zarif (right) on July 2, 2015, at the Palais Coburg Hotel in Vienna where the Iran nuclear negotiations were held. [Photo credit: Joe Klamar/AFP/Getty Images] Why negotiate? For us, the issue of Iran nuclear power was twofold. First, it was regional. We were convinced that Israel wouldn’t accept the prospect of a nuclear Iran, and that would lead to a military option, with all the political consequences of the region. Secondly, even without an Israeli military operation, it would mean the end of the nonproliferation system. The countries around North Korea—South Korea, Japan—were restrained enough not to follow the suit of North Korea and become nuclear, while, in the Middle East, such restraint was very unlikely.

There was a strong risk that the neighbors of Iran would follow and become nuclear powers. That would have been the end of the nonproliferation system.

ACT: What do you think it is about this current period, beginning in 2013, that led to a successful nuclear deal with Iran given this long history of negotiations?

Araud: Actually, the negotiation started with the three European countries; and in 2003, there was suspension by the Iranians of their enrichment capability. But everything stopped in 2005 more or less with the election of [Iranian President Mahmoud] Ahmadinejad. When I was the French-designated negotiator between 2006 and 2009, I can tell you that there was no negotiation. It was not that our proposals were dismissed as insufficient; it was simply that the Iranians didn’t negotiate. They never entered into a substantial discussion of the terms of our proposals, and really, we tried several formulations, very different formulations. We went to Tehran, and nothing came out of it. It was really the feeling that the Iranians had not taken the decision to negotiate. Eventually they took it in 2013, and it means that the supreme leader made the decision first. I’m convinced—but it’s only a personal conviction, and I have nothing to base it on—that what we were looking at the moment when the regime has decided that the cost of the program was too expensive in terms of the survival of the regime. The sanctions were hurting very much, and the regime has decided at this moment to negotiate.

ACT: Within the negotiations for the Joint Comprehensive Plan of Action, what do you think that France brought to the table to really help that process along?

Araud: The fact is that we have, since we have been in the origin of the process, we have been very careful about keeping excellent teams of negotiators. We have been very careful about the choice of the people, about not losing the know-how between the negotiators during all these years, and I do believe that we were a very reliable team of negotiators. I heard several times people saying that, at some moment of the negotiation, really everybody was looking at the French team because we had invested a lot into this negotiation in terms of expertise.

The second point was that we’ve always had a very consistent line. We have had, between 2003 and 2016, three presidents in France—three presidents of very different orientation. There was a Gaullist. After that, there was a more rightist and pro-American, and now you have a Social Democrat. We have always—these three presidents and the governments and the ministers, and there were more than three ministers—have always kept the same line. We have been extremely consistent in this negotiation.

ACT: Speaking of presidential transitions, the presumptive Republican nominee for the U.S. presidency, Donald Trump, has said he would tear up the agreement, he would seek to renegotiate it. Are you concerned at all about the impact of U.S. elections on the continued success of the agreement?

Araud: You know all the Republican candidates were saying that they would tear apart the agreement when they arrive in office. But you know it’s an electoral campaign, and if the candidates were doing everything they promised during the campaign, and that is in all the countries in the world and all the parties, it would be terrifying. So we keep cool, and we will see when it happens and if it happens.

ACT: Iran, though, has expressed some frustrations about sanctions relief under the deal, saying that businesses and banks have been reluctant to do business with Iran. Do you see prospects for European companies returning? Do you think there’s more that the EU 3+3² could be doing?

Araud: We are not in charge of the Iranian economy. But, nevertheless, when there is an agreement, there is a quid pro quo. The Iranian quid is the limitation of their program, and so far, they have implemented their part of the commitment. The quo is the lifting of the sanctions. But the lifting of the sanctions, it is not only an expression saying, “I lift the sanctions.” The sanctions have to be lifted, which means that the Iranians should first have access to frozen assets and secondly should be able to have a trade relationship with the rest of the world.

The fact is—and it’s a fact—that because of the American secondary sanctions, the Iranians are saying that relief doesn’t happen. Actually, if you look—I don’t have the figures, but I think the proportion of the assets effectively de-frozen or released is really not that big. There is a lot of money, which is still frozen because since you can’t use the dollar, apparently it prevents a lot of financial operations. The fact is the banks don’t dare to go to Tehran. You can call it overcompliance on their side because, after having some trouble in New York City, they are still afraid to go there. The U.S. administration is aware of it and has said publicly that they will do their best. It’s not a question of helping the Iranians, it’s simply to give to our commitments, their whole significance. So the U.S. administration is trying to clarify the roles. The problem is your system of secondary sanctions is so complicated that even the U.S. administration has some problems really to understand it.

So the Americans have told us and they have told also [the] business community that they are ready to answer to all the questions that the companies may have. For instance we have the example of Airbus and Boeing who want to sell planes to the Iranians. Planes come with a lot of spare parts. The question is whether it’s legal to sell the planes to the Iranians. Airbus is in contact with the U.S. administration to clarify the situation. But what we feel, and it’s public now, [it] is the will of the U.S. administration to deprive the radicals in Tehran from any pretext to say, “Oh you see, the West is not implementing its part of the deal, we have been trapped, it was a trap, so let’s do the same on our side.”

ACT: So aside from this question of sanctions, do you see any other challenges that the agreement could face in the coming years?

Araud: It’s such a complicated agreement—159 pages. When you enter an arms control agreement, you can’t foresee everything or every problem. So it’s obvious that we will have every six months a different interpretation between the Iranians and us, maybe between us and the Russians and the Chinese, of the different points. The Iranians, of course, will try to drag the agreement toward their interests, and we will do the opposite. So there will be disagreements down the road, and that’s the reason why we have created this committee, which will be in charge of trying to solve these disagreements.³ But disagreements are not unusual. When the Americans have an arms control agreement with the Russians, or with the Soviets at the time, there were also these bumps on the road.

ACT: On the U.S. side, one of the areas that members of Congress in particular have voiced concern about is Iran’s continued ballistic missile testing. The UN Security Council resolution endorsing the deal softens the language on missile tests. Under the new resolution, Iran is “called upon” not to undertake any activity on ballistic missiles that are designed to be nuclear capable. Since the resolution came into effect in January, Iran has continued to test missiles. Are you concerned about the continued missile testing in Iran?

Araud: Our choice was to limit the negotiations to the nuclear issue and not to go beyond that. We consider that the nuclear issue in itself should be really the only topic of the negotiation, considering the seriousness of the issue and also considering that it was certainly in a sense the only issue where the P5+1 would agree.⁴ So it’s on the nuclear issue.

The second point is, and I said it publicly, I was expecting the Iranians to harden their position on the other issues after this nuclear deal, in a sense to show or to send a message that they have not caved in front of the West, which is a message toward the outside world but also toward the Iranian public opinion, which is dreaming of seeing the end of the revolution. So I guess what we see now as provocations, unfortunately, were more or less expected.

On the French side, we have always been in favor of reacting strongly against missile testing in the Security Council, but I think you know the Russians and the Chinese have opposed it. We have said that we have expressed our concern about the missile testing, and we would be willing to go to the Security Council if necessary.

ACT: Do you think there are any particular steps that countries, like the United States and France, could take to stem Iran’s continued ballistic missile development?

Araud: You have the regimes, [Missile Technology Control Regime] and so on, that we have to implement. We have to work with the usual suspects and implement the regimes and controls.

ACT: What do you think that reaching this agreement with Iran means for strengthening nonproliferation norms writ large? Are there areas of the deal that you think the international nonproliferation regime could build off of?

Araud: Yes, but during all the negotiations, especially the Russians but the Chinese also have been very keen on avoiding the impression of creating a precedent. When we negotiated the agreement, there was always this concern coming back, with the Russians and the Chinese basically saying, “No, you are not going to create a new regime.” Having said that, it’s obvious that, during the negotiation, we have faced the problem of enrichment, of uranium enrichment. As a military nuclear power, we know that enrichment is the first step toward a weapon. The militarization side is easier to hide, so the enrichment is really the critical step. The Russians have joined in floating ideas of proposing an international regime for enrichment. There were ideas of having an international bank because countries were saying, “Well, if we give up the right to enrichment, we don’t have any assurance that we will get the enriched uranium that we need for our civilian program.” There was the idea of the Russians saying that they were dedicating a plant for an international bank, and there is the [International Atomic Energy Agency] fuel bank in Kazakhstan.⁵

ACT: Are you concerned, though, that other countries, particularly in the region, might choose to pursue enrichment, given that Iran has maintained its capacity?

Araud: Of course. There is the risk because some people can argue that we have created a special status, a sort of new status for Iran. After the agreement, there were some neighbors saying, “Oh, you know we would want the same capabilities.” For the moment, we have not seen any step into this direction. But of course, we have to be vigilant, considering the tensions in this part of the world.

I do remember when I was in Paris, I was interviewed by our parliament hearing committee on foreign affairs and the chairman of the committee told me, “The nonproliferation system is broken, it’s over.” Actually, when I was assistant secretary now 15 years ago, there were two problems, which were North Korea and Iran. Fifteen years later, there are two problems: North Korea and Iran.

When I was a student, people were saying, “In 2000 the list of the nuclear powers will be Argentina, Brazil,” and so on, and it’s not the case. So in a sense, the nonproliferation system has quite resisted this, and it has been a success. So we have to be vigilant, especially in terms of enrichment. But now that we have this deal with the Iranians, maybe we could come back to working on it.

ACT: Speaking to the weaponization concerns, the concern over nuclear-tipped ballistic missiles in Iran was a primary driver for deploying U.S. missile defense in Europe. Since that threat has been mitigated by the Iran deal, do you think the plans for keeping Aegis Ashore should be adjusted?

Araud: That’s a difficult issue because the American administrations have been very insistent on launching this program, keeping this program, and the debate has been raging in NATO for the last 20 years. The Russians have been through the ceiling on this issue. I think eventually we are going to declare the NATO system as operational.⁶ But my personal opinion would be that what we have done is enough. It’s not really necessary to dedicate so many resources in a situation where we don’t have a lot of resources for such a system for a very hypothetical threat.

For the French, the starting point is evaluation of the threat, and this is something we should re-evaluate regularly. Given the latest assessment of this threat, heads of state and government decided to move forward with this missile defense, but that doesn’t prevent re-evaluating now or in a few years what is the state of this threat. That’s actually something we, France, would be keen to doing because missile defense is not something we should do out of the blue and not just for itself. It’s to protect us against a threat, and it’s just common sense to link it to the re-evaluation of the threat. That is one of the elements we are looking at.

There are also few elements which we look at and we said publicly when we agreed to missile defense, for example, the fact that the cost of missile defense should not go overboard. Another element is that, in NATO, missile defense, on a basis of common control, is owned and operated by NATO. These are elements which are important for us in assessing the progress of the missile defense. There are a few other ones, but those are the important ones.

ACT: On that note, France recently withheld its approval from NATO taking control, command and control, of the European missile defense system.

Araud: The problem that we have, and I’m sure it will be solved before the next summit, is we want to have a real, robust NATO command-and-control chain. For obvious political reasons, the Americans want to declare the system operational at the next summit. From the French side, we want to be sure the [command-and-control] system is robust enough. So again, it’s really not a substantial problem. I’m quite sure that it will be solved.

There is an evaluation going on right now actually in NATO on whether the system is sufficient or not. We are in that phase where we see whether or not it is sufficient to declare the system operational at the Warsaw summit. So we are in this phase where we are looking at it, [being] more careful about being sure it’s sufficient, but we are looking at the info right now that NATO is giving us in the next few weeks.

ACT: Recently in certain disarmament fora, including last year’s [nuclear] Nonproliferation Treaty (NPT) review conference, the five nuclear-weapon states received some criticism for not fulfilling their Article VI disarmament commitments from the NPT review conference in 2010. What does France think could be done to accelerate the progress on disarmament?

Araud: I think that if the U.S. and Russia were decreasing dramatically their systems, it will really be very important and very critical. This has been an ongoing criticism for a long time. We do consider on our side, and if you look at the figures, that we have made significant progress in terms of disarmament. We have given up the tactical weapons. We have also made [a] declaration of transparency.⁷ We have been more transparent in these terms, and we do consider that our systems are very much smaller than the Russians’ and the Americans’. Before talking to us, you have to talk to the Russians and the Americans.

ACT: Is there anything that you think that France could do to encourage the United States and Russia to take further steps?

Araud: The [fissile material cutoff treaty] FMCT and the [Comprehensive Test Ban Treaty] CTBT are the two main elements we are trying to promote in the international arena, given that it’s very difficult, but we still try to push for it.

ACT: Are there any particular steps related to either of those treaties that you are hoping to promote or move forward on?

Araud: There is going to be, in a few weeks, the 20th anniversary of the CTBT. We would like to use this opportunity to promote the CTBT a bit more. For the FMCT, we proposed a draft some time ago, and we are trying to make concrete proposals to promote these treaties. But it’s a slow process. It is a gradual step by step process to go forward.

ACT: In the United Kingdom, there’s a debate about the salience of its nuclear weapons program and its deterrent. What is France’s view on the UK eliminating its nuclear weapons arsenal, and would that have an impact on France as a sole possessor of nuclear weapons in Europe?

Araud: No, it wouldn’t have an impact on France. Very often, people don’t understand why France is so much committed to nuclear deterrence. They do believe it’s sort of out of glory. The fact is that, in 1940, when the Germans invaded our country, we were alone. The Americans were not here, and the British were not really here either—they had sent 10 divisions to France. France nearly disappeared. So we have drawn [a] very clear lesson that, to survive, you are alone. So we need nuclear deterrence.

After this horrendous period for us, when our country nearly disappeared, it has become a sort of ingrained conviction that you are alone to defend your existence. That’s part of our very particular experience that people don’t understand. It’s not because we love nuclear weapons. It’s simply that now the genie is out of the bottle. Nuclear disarmament is difficult because if we get rid of the nuclear weapons you know Kim Jong Un or somebody else may still have the nuclear weapons. What will happen? He will be the master of the world.

It’s impossible to reach universal nuclear disarmament. What we are trying to do is to limit the numbers of the nuclear-weapon states. Of course it’s unfair for the states which are not. As for the United Kingdom, I would bet everything you want that they won’t get rid of their nuclear weapons. There is a debate, but a debate we don’t have so much in France. Of course there is a fringe left which is in favor of it. But there is not a debate like the British have every decade. The British, maybe there could be debate about modernization, whether you need to modernize or not to modernize, considering the threat. That could be a debate. But on having the weapons, I really don’t see. Compared to the Americans, we Europeans know that history is a tragedy.

ENDNOTES

1. Iran’s heavy-water production plant at Arak and its centrifuge plant at Natanz were revealed to the international community in 2002. The first three countries to engage with Iran on the question of uranium enrichment were France, Germany, and the United Kingdom.

2. The EU 3+3 refers to the three EU countries—France, Germany, and the United Kingdom—plus China, Russia, and the United States, that were engaged in talks with Iran on its nuclear program.

3. The Joint Comprehensive Plan of Action established the Joint Commission as a mechanism for resolving disputes.

4. P5+1 refers to the five permanent members of the UN Security Council (China, France, Russia, the UK, and the United States) plus Germany.

5. See Tariq Rauf, “From ‘Atoms for Peace’ to an IAEA Nuclear Fuel Bank,” Arms Control Today, October 2015.

6. In April 2016, the United States declared the ballistic missile interceptor it built to be operational in Romania and a second site in Poland to be under construction. NATO claims this system is intended to protect against the ballistic missile threat from Iran while Russia claims it is an attempt to undermine Russia’s nuclear deterrent. For more information, see Kingston Reif, “Romania Missile Defense Site Activated,” Arms Control Today, June 2016.

7. In 2006, France passed the Nuclear Transparency and Security Law. In 2008, under French President Nicolas Sarkozy, France became the first nuclear-weapon state to publicly reveal the size of its nuclear arsenal. For more information, see Bill Richardson et al., “Universal Transparency: A Goal for the U.S. at the 2012 Nuclear Security Summit,” Arms Control Today, January 2011.

The ambassador to the United States and former Iran deal negotiator reflects on how that agreement was reached, possible bumps ahead, and dangers posed by Iranian ballistic missile development...

Read more about A French View on the Iran Deal: An Interview With Ambassador Gérard Araud

Looking Back: The 1996 Advisory Opinion of the International Court of Justice

July/August 2016

By John Burroughs

The 1996 advisory opinion of the International Court of Justice (ICJ) was the culmination of a decades-long debate on the legality of nuclear weapons. In recent years, it has shaped how international law is invoked by the initiative focused on the humanitarian impacts of nuclear weapons use and served as a foundation for the nuclear disarmament cases brought by the Marshall Islands in the court.

The legality of use of nuclear weapons had been considered by the UN General Assembly since 1961, when the body adopted Resolution 1653 by a divided vote.¹ The resolution declared that such use “is contrary to the rules of international law and to the laws of humanity.” But the General Assembly’s 1994 resolution² requesting the ICJ “urgently to render” an advisory opinion on the matter set in motion an entirely different, extraordinary process. The General Assembly asked the court to opine on the following question: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” This put the issue before the judicial branch of the United Nations, the highest court in the world on questions of international law.

The International Court of Justice holds a public hearing in the Marshall Islands’ case against India in The Hague on March 7. [Photo credit: Frank van Beek/ICJ-CIJ/UN] Several nuclear-weapon states chose to defend the lawfulness of using nuclear weapons in extended arguments to the court. Russia, the United Kingdom, and the United States argued that although nuclear arms, like other weapons, are subject to the law of armed conflict, whether their use would be lawful or unlawful would depend on the circumstances. France contended that absent a specific prohibition, the weapons may be employed in the exercise of the right of self-defense. States not reliant on nuclear weapons, plus Australia, a country closely aligned with a nuclear-armed state, argued that the effects of nuclear explosions are inherently uncontrollable and indiscriminate and that the use of such weapons is therefore unlawful in all circumstances.³

Over two weeks of dramatic hearings in November 1995, 22 states made oral arguments, most after also submitting written arguments, and another 23 made written submissions only. Altogether, 45 states participated, the largest number to do so in ICJ proceedings to that date. Civil society also played a role. More than 700 groups worldwide had joined together in the World Court Project to support the General Assembly’s request for an opinion and to publicize the initiative.

Release of the Opinion

The court deliberated for an unusually long period of time before delivering its opinion on July 8, 1996.⁴ For advocates of the illegality of threat or use of nuclear arms sitting in the Peace Palace courtroom in The Hague and listening to the court’s president, Mohammed Bedjaoui, read the opinion, the experience was something of a roller coaster ride.

A positive early signal was the observation that the “destructive power of nuclear weapons cannot be contained in either space or time” and the acknowledgement of “the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.” Toward the end of the opinion, Bedjaoui read the following key finding:

[Under] the principles and rules of law applicable in armed conflict—at the heart of which is the overriding consideration of humanity…methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons…the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.

Then he continued, reading a finding that was baffling at the time and has not become any less so in the two decades since then:

[T]he Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the [UN] Charter, when its survival is at stake. Nor can it ignore the…“policy of deterrence.”

Accordingly, in view of the present state of international law viewed as a whole…and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.

One of the several formal conclusions, each adopted by a vote of the judges, in reply to the General Assembly’s question joined the “general” illegality of the threat or use of nuclear weapons under the law of armed conflict with the court’s uncertainty regarding the extreme circumstance of self-defense.⁵ Because a judge had died shortly before the hearings, the court had 14 members instead of the normal 15. The judges’ votes on the conclusion were evenly split, 7-7; it was considered adopted due to the positive vote of Bedjaoui. Yet, the tie vote is misleading. In powerful dissents, three of the seven judges who voted against the conclusion maintained that the threat or use of nuclear weapons is unlawful in all circumstances.⁶ Thus, 10 of the 14 judges took the position that such threat or use is at least generally unlawful.

At the close of the reading of the opinion, Bedjaoui unexpectedly turned to a matter not raised by the General Assembly’s request. Given the “eminently difficult” legal issues posed by nuclear weapons, the court underlined the importance of Article VI of the nuclear Nonproliferation Treaty (NPT),⁷ explained its meaning, and observed that fulfillment of the nuclear disarmament obligation “remains without any doubt an objective of vital importance to the whole of the international community today.” All judges voted for the resulting formal conclusion: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

Governmental Responses

The participating nuclear-armed states responded to the issuance of the opinion essentially by stating that nothing in it requires them to change their policies. The United States correctly noted that the court “declined to pass on the policy of nuclear deterrence” and incorrectly claimed, as did France in stronger terms, that the “opinion indicates that the use of nuclear weapons in some circumstances would be legal.” In fact, the court only stated its inability to decide the matter in certain possible circumstances and stressed that states must always comply with rules protecting civilians from the effects of warfare. The UK commented, “Like the Court, we believe that the use of nuclear weapons would be considered only in self-defence in extreme circumstances.” Russia observed that the opinion “reflected a complex, mostly political role of nuclear weapons in the modern world.”⁸

States of the Non-Aligned Movement, in particular Indonesia and Malaysia, had led the campaign to obtain a General Assembly majority in favor of asking the court for its opinion. Their emphasis was on the court’s unanimous conclusion regarding the disarmament obligation. In a resolution put forward by Malaysia in the fall of 1996 and adopted annually since then,⁹ the General Assembly underlines the conclusion and calls on all states to fulfill the obligation by immediately commencing multilateral negotiations leading to the early conclusion of a convention prohibiting and eliminating nuclear weapons. The resolution receives a substantial number of opposing votes and abstentions, due in part to the position of states such as Japan that negotiation of a convention is premature. However, in years when the paragraph welcoming the court’s statement of the disarmament obligation has been voted on separately, it has been approved by an overwhelming majority, not including France, Israel, Russia, the UK, and the United States.¹⁰

Nuclear Weapons Threat or Use

In reaching its conclusions, the court considered a range of legal issues relating to threat or use of nuclear weapons, not all of which can be reviewed here. One significant finding was that a customary norm of nonuse of nuclear weapons has not arisen out of the practice of nonuse since World War II due to states’ continued assertion of doctrines of deterrence that contemplate resorting to nuclear arms. Another was that impacts on the environment must be taken into account in assessing whether an attack complies with the law of armed conflict. Also important was the court’s examination of the legal status of threats. It found that “if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal.” But the heart of the court’s analysis and of the arguments made by states concerns the application of the law of armed conflict to the use of nuclear weapons.

The court laid particular emphasis on two elements of what is commonly referred to as international humanitarian law: the prohibition of causing unnecessary suffering to combatants and the principle of distinction between combatants and noncombatants. Under the principle of distinction, the court stated categorically, “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” The court did not refer to another aspect of the principle of distinction, the prohibition of attacks on military targets expected to cause excessive incidental harm to civilians and civilian objects when weighed against the expected military advantage. Perhaps the court considered it to be inapplicable in the nuclear realm, where collateral casualties can number in the tens or hundreds of thousands.

The court said that the rules of international humanitarian law it highlighted reflect “elementary considerations of humanity” and are “fundamental.” Moreover, they are “intransgressible,” an innovative term that must mean that the rules are not to be violated whatever the circumstance. The court further said that for a use of force in response to an armed attack to be proportionate, a requirement for the lawful exercise of the right of self-defense, it must also comply with international humanitarian law. Although the court declined to address whether the legal doctrine permitting reprisals aimed at dissuading further unlawful acts by an enemy could justify a use of nuclear weapons in response to a prior use, it stated that any reprisal must meet the requirement of proportionality. The court found that it was unable to assess the legality of use in marginal scenarios such as use of low-yield nuclear weapons in remote areas, but stated that the nuclear-weapon states had failed to make the case for legality in such circumstances.

The thrust of the analysis is captured by the court’s finding that, in view of their “unique characteristics,” the use of nuclear weapons is “scarcely reconcilable” with the requirements of international humanitarian law. That finding has been taken up as a subsidiary theme by the initiative on the humanitarian impact of nuclear weapons (see box).

Given its analysis of the application of international humanitarian law to the use of nuclear weapons, what sense can be made of the court’s inability to determine the lawfulness or unlawfulness of a threat or use of nuclear weapons in an extreme circumstance of self-defense in which the very survival of a state is at issue? This provision has been the subject of harsh criticism, and most members of the court signaled their discomfort or disagreement with it in their separate statements accompanying the opinion. It seems incongruous that a court would declare itself unable to apply the law to an important issue in the matter before it. The provision left an opening for states relying on nuclear arms to claim that their policies of deterrence are lawful and that use could be lawful—an opening that they in fact seized. No similar clause exists in international law governing the use of force, the conduct of warfare, and the use of particular weapons. Further, the court’s finding arguably implies that international humanitarian law possibly could bend in extreme circumstances of self-defense, whereas the essence of that law is that it applies to all states, whether aggressor or defender, in all circumstances. Indeed, as already noted, the opinion elsewhere is abundantly clear that whatever the circumstance, use of nuclear weapons must comply with international humanitarian law. States must “never use weapons that are incapable of distinguishing between civilian and military targets.”

The court’s reference to the policy of deterrence in justifying the finding suggests that the finding is as much or more about threat than it is about use. It appears to reflect the stark realities of threat and counterthreat at least implicitly faced by states when other potentially adverse states possess nuclear weapons. All of this points toward the comprehensive prohibition and elimination of nuclear arms as the only real solution to the dilemmas posed by their existence, a subject addressed by the court in the final section of the opinion.

Humanitarian Initiative on Nuclear Weapons

The initiative first made its mark with the provision in the final document of the 2010 NPT Review Conference referring to the “catastrophic humanitarian consequences of any use of nuclear weapons.” It has continued through conferences in Oslo; Nayarit, Mexico; and Vienna in 2013 and 2014 and is a moving force in the 2016 UN open-ended working group on nuclear disarmament. While emphasizing the unacceptable consequences of nuclear weapons explosions and the inability to provide adequate relief to survivors, influential actors in the initiative have also referred to the basic incompatibility between nuclear weapons and international humanitarian law. Thus, a 2011 resolution of the International Red Cross and Red Crescent Movement “finds it difficult to envisage how any use of nuclear weapons could be compatible with the rules of international humanitarian law.”¹¹

In her presentation to the 2014 Vienna Conference on the Humanitarian Impact of Nuclear Weapons, Helen Durham, director of international law and policy at the International Committee of the Red Cross, outlined concerns motivating the resolution.¹² She stated that “the sheer scale of civilian casualties and destruction that would result from the use of a nuclear weapon in or near a populated area and its long-term effects on human health and the environment raise serious questions about the compatibility of this weapon with the rules” of international humanitarian law. She also noted that the use of a low-yield nuclear weapon “far from civilian settlements” would raise such questions due to the impact of radiation on combatants, the eventual spread of radiation, and radiological contamination of the environment.

A 2015 General Assembly resolution, “Ethical imperatives for a nuclear-weapon-free world,” puts the matter more strongly: “given the humanitarian impact of nuclear weapons, it is inconceivable that any use of nuclear weapons, irrespective of the cause, would be compatible with the requirements of international humanitarian law or international law, or the laws of morality, or the dictates of public conscience.”¹³

The Disarmament Obligation

In declaring the obligation to pursue in good faith and conclude negotiations leading to nuclear disarmament in all its aspects under strict and effective international control, the court made a significant contribution to the elucidation of international law. Its construction of NPT Article VI, read together with other parts of the opinion, clarifies that negotiation of an instrument or instruments eliminating nuclear arms would advance the objective of general and complete disarmament in the same way that the conventions on biological and chemical weapons advance that objective.¹⁴ The court also explained that the obligation is one of result—nuclear disarmament in all its aspects—as well as conduct—the pursuit of good faith negotiations. In both respects, essentially the same approach to interpretation of Article VI was taken by the 2000 NPT Review Conference when it adopted the “unequivocal undertaking by the nuclear-weapon States to the total elimination of their nuclear arsenals” separately from the reaffirmation of the ultimate objective of “general and complete disarmament under effective international control.”

The court’s formulation of the obligation and its underlying analysis compel the reading that the obligation applies universally, including to states not party to the NPT, as a matter of customary international law. In its analysis, the court notes that “the vast majority of the international community” is bound by the NPT, implicitly invoking the doctrine that customary international law can arise out of multilateral treaties with widespread participation. Moreover, the court cites General Assembly resolutions on nuclear disarmament, beginning with the very first, unanimously adopted resolution, which set up a commission to make proposals for “the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.”¹⁵ When very widely supported, General Assembly resolutions can provide evidence of customary international law.

The Marshall Islands' Cases

The proposition that the disarmament obligation applies universally is now being tested in three nuclear disarmament cases brought in April 2014 by the Marshall Islands in the ICJ. These are contentious cases that will lead to binding judgments between the litigating states, not advisory opinion proceedings. Two of the cases, against India and Pakistan, are based on a customary international obligation to pursue and conclude negotiations on nuclear disarmament as declared by the court. The third, against the UK, rests on NPT Article VI and the customary obligation.

In the case against the UK, a central issue is whether the UK is breaching the obligation to pursue negotiations leading to nuclear disarmament by opposing and refusing to participate in multilateral deliberations and negotiations on that subject. The issue is posed acutely by the UK’s absence from the 2016 UN open-ended working group on nuclear disarmament. The working group is charged with addressing legal measures to attain and maintain a world without nuclear weapons. Its deliberations are premised on the view of most states that the time to negotiate legal instruments relating to nuclear disarmament is now, not some distant future. That is also the implication, the Marshall Islands contends, of the disarmament obligation articulated by the court.

Unlike the UK, India and Pakistan support General Assembly resolutions calling for commencement of multilateral negotiations on nuclear disarmament, although they are not participating in the working group. In their cases, a principal issue is whether they are breaching the obligation and the requirement of good faith in implementing it by engaging in improvement, diversification, and quantitative buildup of their arsenals and failing to seek negotiated limits on such activities.

Hearings on preliminary issues in the cases against India, Pakistan, and the UK were held in The Hague in March. The issues concern whether the cases come under the terms of the three states’ declarations accepting the court’s jurisdiction and whether the cases are otherwise suitable for determination on the merits. The court’s judgments on preliminary issues are expected soon. In April 2014, the Marshall Islands also filed applications against the six other nuclear-armed states (China, France, Israel, North Korea, Russia, and the United States), but none of them have current declarations on file accepting the court’s jurisdiction. They have ignored or, in the case of China, declined the Marshall Islands’ requests that they come before the court in the matter.

Conclusion

The advisory opinion came at a high point of multilateral disarmament diplomacy. The Chemical Weapons Convention had been negotiated, the NPT had been indefinitely extended, and negotiation of the Comprehensive Test Ban Treaty was nearly complete. The initiative to obtain the opinion and the opinion itself reflect that moment.

In the subsequent two decades, efforts toward consolidating a multilateral nuclear disarmament regime have been stymied. Nuclear-armed states have done little to reduce the role of nuclear weapons in their security postures, let alone acknowledge that their use is incompatible with the law of armed conflict. Their planning for maintenance and modernization of their arsenals for decades to come and the associated projected vast spending—$1 trillion by the United States over the next three decades—manifests a lack of good faith in meeting the obligation of negotiating the elimination of nuclear arms. On the positive side, nuclear weapons have not been detonated in war, the demand for disarmament is still being vigorously pressed by non-nuclear-weapon states and civil society actors, and the contradiction between reliance on nuclear arms and what the court called “elementary considerations of humanity” is being exposed with renewed energy. In this complex environment, the advisory opinion remains an indispensable guide to the norms compelling nonuse of nuclear weapons and their universal elimination.

ENDNOTES

1. UN General Assembly, “Declaration on the prohibition of the use of nuclear and thermo-nuclear weapons,” A/RES/1653 (XVI), November 24, 1961. The General Assembly adopted this resolution in a 55-20 vote, with 26 abstentions.

2. UN General Assembly, “Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons,” A/RES/49/75K, December 15, 1994. The General Assembly adopted this resolution in a 78-43 vote, with 38 abstentions.

3. For more about the hearings, see John Burroughs and Jacqueline Cabasso, “Nukes on Trial,” The Bulletin of the Atomic Scientists, March/April 1996, pp. 41-45.

4. Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports, July 8, 1996, p. 226, http://www.icj-cij.org/docket/files/95/7495.pdf.

5. Ibid., para. 105(2)E.

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

6. Ibid., pp. 375-428, http://www.icj-cij.org/docket/files/95/7519.pdf (Shahabuddeen dissent); Ibid., pp. 429-555, http://www.icj-cij.org/docket/files/95/7521.pdf (Weeramantry dissent); Ibid., pp. 556-582, http://www.icj-cij.org/docket/files/95/7523.pdf (Koroma dissent).

7. NPT Article VI states that “[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

8. For the statements of France, Russia, the United Kingdom, and the United States in response to the issuance of the advisory opinion, see John Burroughs, The Legality of Threat or Use of Nuclear Weapons (Münster: LIT Verlag, 1997), pp. 153-155.

9. UN General Assembly, “Follow-up to the advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons,” A/RES/70/56, December 7, 2015. The General Assembly adopted this most recent resolution on the ICJ opinion in a 137 to 24 vote, with 25 abstentions.

10. In votes on General Assembly Resolution 61/83 on December 6, 2006, the paragraph was approved by a 168-3 vote (Israel, Russia, and the United States voting no) with five abstentions (Belarus, France, Kyrgyzstan, Latvia, and the UK). The resolution was adopted as a whole by a 118-27 vote, with 26 abstentions.

11. Council of Delegates of the International Red Cross and Red Crescent Movement, “Resolution 1, Working Towards the Elimination of Nuclear Weapons,” November 26, 2011, http://www.icrc.org/eng/resources/documents/resolution/council-delegates-resolution-1-2011.htm.

12. Helen Durham, “The Use of Nuclear Weapons and International Humanitarian Law,” Vienna Conference on the Humanitarian Impact of Nuclear Weapons, December 9, 2014, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/HINW14/Presentations/
HINW14_S4_Presentation_Helen_Durham.pdf.

13. UN General Assembly A/RES/70/50, December 7, 2015. The General Assembly adopted this resolution by a vote of 132 to 36, with 16 abstentions.

14. The court construed NPT Article VI as follows: “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.” Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports, July 8, 1996, para. 99. The court elsewhere discusses the conventions on biological and chemical weapons, observing that “[t]he pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments.” Ibid., paras. 57-58.

15. UN General Assembly, “Establishment of a Commission to Deal With the Problems Raised by the Discovery of Atomic Energy,” A/RES/1 (I), January 24, 1946.

John Burroughs is executive director of the Lawyers Committee on Nuclear Policy, which is the UN office of the International Association of Lawyers Against Nuclear Arms. He is a member of the Marshall Islands’ international legal team.

The 20-year-old advisory opinion on the legality of nuclear weapons threat or use continues to be a guide to the norms requiring nonuse of the weapons and negotiation of their elimination.

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Leaders Convene to Push Test Ban Treaty

July/August 2016

By Daryl G. Kimball

Foreign ministers and representatives from more than 69 states and international organizations gathered in Vienna on June 13-14 for a special meeting to mark the 20th anniversary of the opening for signature of the Comprehensive Test Ban Treaty (CTBT) and to explore options for advancing its entry into force. Following a visit from the head of the Comprehensive Test Ban Treaty Organization (CTBTO) to Jerusalem on June 20, the Israeli government pledged to ratify the treaty “at the right time.”

In his welcoming remarks, Lassina Zerbo, the executive secretary of the CTBTO Provisional Technical Secretariat, noted that “we cannot really approach the anniversary as a cause for celebration. Until it enters into force, the CTBT is unfinished business. Until we finish what we started, there is a risk that the world will backslide into nuclear testing.”

Federica Mogherini, EU foreign policy chief (left), speaks with Erlan Idrissov, foreign minister of Kazakhstan, during the Comprehensive Test Ban Treaty (CTBT) ministerial meeting on June 13. [CTBTO] The gathering included a message from UN Secretary-General Ban Ki-moon and formal public statements from treaty signatories and nonsignatory Pakistan, as well as a closed ministerial roundtable discussion.

Speaker after speaker expressed support for the prohibition on nuclear test explosions, praised the significant advances in operationalization of the global monitoring systems to verify compliance with the treaty, condemned North Korea’s ongoing nuclear testing, and called for action from the remaining eight states listed in Annex 2 of the treaty that must still ratify to trigger formal entry into force: China, Egypt, India, Iran, Israel, North Korea, Pakistan, and the United States.

Only a few ministers, however, offered new proposals for catalyzing progress or new arguments for why the remaining holdout states should ratify. EU foreign policy chief Federica Mogherini suggested the CTBT could contribute to the realization of a Middle Eastern zone free of nuclear weapons, all other weapons of mass destruction, and their means of delivery.

“As a stepping-stone towards this long-term objective, a ‘nuclear-test-free zone’ could be created in the Middle East, by way of CTBT ratifications by the remaining states of the region,” Mogherini said.

New Zealand’s ambassador in Vienna, Deborah Geels, pledged that her delegation would work in “close cooperation” with Australia and Mexico to bring forward a “strong and supportive” resolution at the UN General Assembly this year.

Kazakhstan's Foreign Minister Erlan Idrissov, in the ministers’ roundtable discussion, raised the possibility of the UN Security Council taking up the issue of the CTBT later this fall with the goal of encouraging entry into force and reinforcing the norm against nuclear testing.

The United States did not send a cabinet-level official to the meeting, which prompted other members of the group of five original nuclear-weapon states to downgrade their level of representation, according to diplomatic sources. Instead, Rose Gottemoeller, U.S. undersecretary of state for arms control and international security, read a written message from President Barack Obama in which he said that the treaty’s “full potential has not been fulfilled.”

In her own statement, Gottemoeller also said that “the United States acknowledges that we have not completed our work on ratification and that our delay gives cover to other Annex 2 countries who have also failed to secure ratification of the Treaty.”

She told the meeting, “[W]e are building support for this Treaty, state by state, and sometimes person by person, because we know that a global ban on nuclear explosive testing is good for our country. We are certain that we have a good case to make. We will continue to make it.” But on June 6, at the Arms Control Association annual meeting in Washington, Benjamin Rhodes, assistant to the president and deputy national security adviser for strategic communications, said bluntly, “Senate ratification of CTBT is not going to happen this year.”

“Following the 2010 midterm elections,” Rhodes said, “the composition of the Senate changed, leaving us with no viable path for [the] CTBT.”

Rhodes added, however, that “we will continue to consider ways to affirm the international norm against testing nuclear weapons.”

In his remarks at the Vienna meeting, Mikhail Ulyanov, director of the department for nonproliferation and arms control in the Russian Ministry of Foreign Affairs, reiterated Moscow’s support for the treaty, which it ratified in 2000, and chided the United States for its failure to ratify.

“Unfortunately, despite repeated statements on plans to ratify [the] CTBT and facilitate its soonest entry into force…no concrete steps in this direction have been made,” he said.

Echoing the U.S. comments on its ratification situation, Chinese Vice Minister of Foreign Affairs Li Baodong pledged that the Chinese government “will continue to encourage the National People's Congress to discuss the ratification of the treaty…and continue to enhance public recognition and support for the Treaty.”

Baodong also announced that China has “made progress” through cooperation with the CTBTO on building and certifying the five seismic monitoring stations on its territory that are part of the International Monitoring System. CTBTO officials told Arms Control Today that as of June 13, data from these stations had begun to flow to their International Data Centre (IDC) in Vienna.

Iranian representative Hamid Baeidinejad, the foreign ministry’s director-general of international political and security affairs, asserted that the nuclear-weapon states “bear the main responsibility in entry into force.” Iran has signed the treaty, but has not ratified it and does not allow data from monitoring stations on its territory to be transmitted to the IDC.

Baeidinejad asserted that “banning the development of nuclear weapons is vital in the region of the Middle East,” complained that Israel is the only state in the region that has not joined the nuclear Nonproliferation Treaty, and urged progress on the establishment of a zone free of nuclear and other weapons of mass destruction in the Middle East. At the same time, he reiterated Iran’s long-standing concern about the regional grouping of states in the text of the CTBT for the Middle East and South Asia because it recognizes Israel as a state in the region.

Following a meeting in Jerusalem on June 20 with Zerbo, Israeli Prime Minister Benjamin Netanyahu issued a statement expressing Israel’s support for the treaty, adding that “the issue of ratification depends on the regional context and the appropriate timing.” Netanyahu signed the treaty in 1996.

Key ministers from CTBT states-parties plan to convene again in New York in September to mark the Sept. 24 anniversary of the treaty opening for signature.

In an effort to jump-start progress toward entry into force, foreign ministers met in Vienna to focus attention on the Comprehensive Test Ban Treaty, which opened for signature two decades ago.

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Nuclear Suppliers Divided on Indian Bid

July/August 2016

By Daryl G. Kimball

Despite a high-level lobbying effort by the U.S. and Indian governments, the 48 participating governments of the Nuclear Suppliers Group (NSG) did not reach consensus at their plenary meeting in Seoul on a controversial bid from nuclear-armed India to join the nuclear technology control body as a full-fledged member.

In recent weeks, Washington and New Delhi had ramped up diplomatic efforts to convince the participating governments of the NSG, which operates by consensus, to agree to allow India, which is not a party to the nuclear Nonproliferation Treaty (NPT), to join the group. (See ACT, June 2016.)

Indian Prime Minister Narendra Modi (left) and Chinese President Xi Jinping attend a meeting on May 14, 2015, in Xian, China. The two met again June 23 in Uzbekistan, where they discussed Indian membership in the Nuclear Suppliers Group. [Photo credit: Kim Kyung-Hoon-Pool/Getty Images] In a public statement issued after its June 20-24 plenary meeting, the NSG said it “had discussions on the issue of ‘Technical, Legal and Political Aspects of the Participation of non-NPT States in the NSG’ and decided to continue its discussion.”

Outgoing NSG chair Rafael Mariano Grossi of Argentina was tapped to facilitate the ongoing discussions. “I have to go back to each government about their stand, what they discussed and what they will agree too,” Grossi told The Hindu in a June 28 interview.

In 2008, following heavy U.S. lobbying, the NSG agreed to exempt India from its full-scope safeguards requirement for nuclear trade with non-nuclear-weapon states.

Following that decision, India concluded a number of bilateral nuclear cooperation agreements with nuclear supplier states, including Australia, Canada, France, Kazakhstan, and Russia.

The issue of Indian membership in the NSG has been discussed informally within the group since 2011. Deliberations took on new urgency with the submission of a formal membership bid from India on May 15 and another from Pakistan several days later.

On May 19, a call for an “Extraordinary Plenary Meeting” of the NSG was issued with “NSG Participation Process to review submissions for participation by non-NPT states” listed as an agenda item. That meeting was held in Vienna on June 9.

On June 3, U.S. Secretary of State John Kerry sent a two-page letter to several states believed to be skeptical of the Indian membership bid, asking them to “agree not to block consensus on Indian admission” to the NSG, according to a report published by Bloomberg News.

“India has shown strong support for the objectives of the NSG and the global nuclear nonproliferation regime and is a ‘like-minded’ state deserving of NSG admission,” Kerry wrote in his June 3 letter. Other major nuclear suppliers, including France, Russia, and the United Kingdom, support the Indian bid for membership.

In a letter dated June 7, however, China’s ambassador in Vienna, Shi Zhongjun, wrote to Grossi to object to a formal discussion of the new membership bids at the June 9 meeting or at the plenary meeting in Seoul.

“NPT membership constitutes one of the prerequisite factors for consideration of NSG participation,” the Chinese ambassador wrote. “[M]ore discussions are needed before the Group is in a position to review…participation by any specific non-NPT state at the meetings of the Group.”

“The NSG stands to benefit from the active participation of Indian technical specialists in helping the Group strengthen the international control of nuclear goods and technologies and help strengthen domestic controls on nuclear exports,’’ Canada’s acting high commissioner, Jess Dutton, told The Times of India on June 20. Canada is a major supplier of uranium for India and supports India’s membership bid.

According to a number of NSG representatives who spoke with Arms Control Today on a not-for-attribution basis, however, the June 9 and 20-24 meetings revealed widespread concern about a “politically based” approach to allow Indian membership rather than a new criteria-based policy for considering NSG members.

“The door is open for the admission of the non-NPT members. It is never closed. It is open. But the members of the NSG should stay focused on whether the criteria should be changed and whether non-NPT members should be admitted into the NSG,” Chinese Foreign Ministry spokesperson Hua Chunying told reporters at a media briefing June 21 in Beijing.

In an effort to win support for its membership bid, senior Indian officials reportedly reached out to many NSG member states, including China. Indian Foreign Secretary Subrahmanyam Jaishankar arrived at the Seoul meeting June 21. Prime Minister Narendra Modi traveled to Tashkent, Uzbekistan, on June 23 for the meeting of the Shanghai Cooperation Organization where he lobbied Chinese President Xi Jinping to support Indian membership in the NSG.

“China doesn’t support Pakistan or India to enter NSG until they follow rules established by members. NSG consensus is in favor of the Non Proliferation Treaty,” said Wang Qun, director-general of the arms control department in the Chinese Foreign Ministry on June 24. “The meeting on Thursday was an effort to find consensus on non-NPT state applications, but differences remain,” Wang said.

A number of NSG participating governments, including some who publicly said they support Indian participation in the NSG, joined China in calling for further consultations to arrive at a consensus approach to any new membership bids, according to diplomatic sources involved in the NSG meetings.

Many participating governments were weighing the potential technical and political costs of allowing one or more non-NPT states to participate in the group, according to the NSG diplomats who spoke with Arms Control Today.

One concern cited by one participating state representative regarding Indian membership was that it would require the group to reconsider the definition of a “nuclear-weapon state” in administering NSG guidelines. The guidelines specify that the “fundamental principles for safeguards and export controls should apply to nuclear transfers for peaceful purposes to any non-nuclear-weapon State.”

In 2008 the NSG agreed that the decision to except India from its comprehensive safeguards standard should not be interpreted to mean that the NSG or its members recognized that India is a nuclear-weapon state as defined by the NPT.

In a statement issued June 24, Indian Ministry of External Affairs spokesperson Vikas Swarup said that “one country” raised “procedural hurdles” regarding India’s membership bid.

“An overwhelming number of those who took the floor supported India’s membership and appraised India’s application positively. We thank each and every one of them. It is also our understanding that the broad sentiment was to take this matter forward,” Swarup said.

At its meeting last month in Seoul, the Nuclear Suppliers Group did not reach consensus on India’s bid to join the 48-nation group, but agreed to continue discussions on the matter.

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States Link Efforts to Curb Arms Flows

July/August 2016

By Jeff Abramson

Delegates at a biennial UN meeting held last month in New York reached consensus on how to link instruments related to the illicit trade of small arms and light weapons to newer initiatives, including the Arms Trade Treaty (ATT) and UN-agreed development goals.

The June 6-10 meeting was the sixth biennial and final formal meeting before a 2018 review conference on the 2001 Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, and its sister agreement, the 2005 International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (ITI).

Seized weapons displayed July 9, 2014, before being destroyed at a metal foundry near Ferizaj, Kosovo. At a biennial UN meeting in June, delegates discussed combatting the illicit small arms trade. [Photo credit: Armend Nimani/AFP/Getty Images] Some states that have not yet joined the ATT, objected to proposals to explicitly mention the treaty in the program of action meeting’s outcome document. The ATT, which entered into force in the period since the fifth biennial meeting in June 2014, is the first legally binding instrument addressing the transfer of nearly all conventional weapons. (See ACT, October 2014.)

On the final day of the meeting, Darren Hansen, the head of the Australian delegation, read a statement on behalf of more than 60 countries calling for language mentioning the ATT by name. Ultimately, the final document only made indirect reference to “complementarities” with other instruments.

Hansen told Arms Control Today in a June 27 email that although “Australia would have liked to have seen a reference to the ATT,…[w]e were satisfied with the outcome document in which it was agreed that complementarities between the [program of action] and relevant global instruments, including those that are legally binding, need to be taken into account.”

The United States, which is a signatory to the ATT, joined in the group supporting a direct reference to the treaty. A State Department official told Arms Control Today in a June 22 email that “the important point is that all countries establish export/import controls consistent with the ATT if they are States parties, or with the [program of action] if they are not…. When implemented effectively, laws and regulations make illicit trafficking more difficult.”

Although only indirectly referencing the ATT, delegates did welcome the newly agreed Sustainable Development Goals (SDGs) adopted by the United Nations in September that replaced the Millennial Development Goals. In particular, the final document referenced SDG target 16.4, which calls for the global community to “significantly reduce illicit…arms flows” by 2030.

As part of the SDG effort, indicators are being created for each target. Regarding the objectives to promote peaceful and inclusive societies in target 16, a draft indicator is “[p]roportion of seized small arms and light weapons that are recorded and traced, in accordance with international standards and legal instruments.” In the meeting’s final document, states encouraged the development of national indicators based on the program of action and ITI that could support measuring and reporting on SDG target 16.4.

Reporting on arms issues is also one of the topics to be addressed at the second annual conference of states-parties to the ATT, set to occur in Geneva on Aug. 22-26. As of June 29, only 35 states had submitted their treaty-mandated annual report on authorized imports and exports, which was due May 31. The pact has 85 states-parties and another 48 signatory states.

One issue that may emerge at the August meeting is arms transfers to Saudi Arabia. Human rights groups have documented Saudi use of foreign-supplied weapons, including cluster munitions, in attacks on civilians in Yemen and accused Riyadh of violating international law. On March 18, Zeid Ra’ad Al Hussein, UN high commissioner for human rights said, “It would appear to be the case that the distinction between legitimate military targets and civilian ones—which are protected under international law—is at best woefully inadequate…. And at worst, we are possibly looking at the commission of international crimes by members of the [Saudi-led] Coalition.”

On Feb. 25, the European Parliament approved a nonbinding resolution finding that European supplies of weapons to Saudi Arabia violate EU arms transfer rules and seeking an embargo on such transfers due to Saudi conduct in the humanitarian situation in Yemen. Requests by civil society delegates attending an extraordinary ATT meeting on Feb. 29 to discuss whether arms transfers to Saudi Arabia violated the ATT were rejected.

In April and May, U.S. Sens. Chris Murphy (D-Conn.) and Rand Paul (R-Ky.) proposed legislation that would require that U.S. sales of certain weapons to Saudi Arabia be subject to a certification process guaranteeing that the Saudis are targeting terrorists and not civilians in Yemen.

“[A]nti-American sentiment is spiking as locals blame the U.S. for the thousands of civilians killed in the coalition bombing campaign. This will come back to haunt us. We need to put real conditions on our military aid to the Saudis,” Murphy said in a May 26 press release.

In response to news reports that the United States had suspended transfers of certain weapons to Saudi Arabia, the State Department official said June 22 that “U.S. officials have regularly engaged with Saudi Arabia and other coalition members on the need to investigate all credible reports of civilian casualties allegedly caused by coalition air strikes…encouraging them to do their utmost to avoid harm to civilians and damage to critical infrastructure.”

Delegates at a biennial UN meeting on decade-old agreements addressing illicit small arms trade made connections to the newer Arms Trade Treaty and Sustainable Development Goals.

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UN, IAEA Denounce N. Korean Actions

July/August 2016

By Elizabeth Philipp

Last month, the UN Security Council condemned two new launches of North Korea’s Musudan intermediate-range ballistic missile and the head of the International Atomic Energy Agency (IAEA) raised concerns about Pyongyang’s recent activities at a nuclear site.

Council president François Delattre of France stated in a press release on June 23 that the Security Council “strongly condemned the most recent ballistic missile launches” by North Korea. The council released the statement after holding an emergency consultation on North Korea on June 22, following the June 21 test of two Musudan missiles.

This undated picture released from North Korea’s official Korean Central News Agency on June 23 shows a test launch of the Musudan ballistic missile at an undisclosed location in North Korea. [Photo credit: KCNA/AFP/Getty Images] The “repeated launches are in grave violation” of North Korea’s obligations under Security Council resolutions, Delattre said. He expressed the “serious concern” of council members that the tests were conducted “in flagrant disregard of the repeated statements of the Security Council.” Security Council members agreed to “take further significant measures” in response to North Korea’s actions, he said.

His statement included a call to member states to “redouble their efforts to implement fully” nonproliferation measures imposed on North Korea by the council. The council adopted Resolution 2270 in March in response to North Korea’s nuclear test on Jan. 6 and space launch using ballistic missile technology on Feb. 7. (See ACT, April 2016.)

The United States separately denounced the launches. In a White House press briefing on June 22, spokesperson Josh Earnest stated that Washington “strongly condemns the provocative actions by the North Korean government that is a flagrant violation of their international obligations.”

The two test launches on June 21 were the fifth and sixth tests of the missile system, following previous attempts in April and May 2016. (See ACT, June 2016.) The first four launches of the Musudan were failures.

The June launches represent a “partial success” for the development of the Musudan system, according to John Schilling, spacecraft propulsion expert and engineering specialist at The Aerospace Corp. The latest missile test “finally demonstrated the full performance of the missile’s propulsion system, and at least a minimally functional guidance system,” he said in a June 23 analysis for 38 North, an online publication of the U.S.-Korea Institute at Johns Hopkins University.

The first missile tested on June 21 exploded midflight after flying 150 kilometers, and the second one achieved a distance of 400 kilometers, according to a June 22 report in the Korea Times citing the South Korean Joint Chiefs of Staff. The missile is believed to have a range of up to 4,000 kilometers.

The UN Security Council unanimously adopts Resolution 2270 on March 2, imposing additional sanctions on North Korea in response to that country’s nuclear test and space launch using ballistic-missile technology. [Photo credit: Don Emmert/AFP/Getty Images]

Also in June, the IAEA discussed the resumption of activities at North Korea’s Yongbyon nuclear site.

The activity observed by the IAEA indicates that North Korea may have restarted its five-megawatt electrical reactor, expanded enrichment capacity, or resumed reprocessing, IAEA Director-General Yukiya Amano said in a June 6 press conference. The IAEA has not had access to the Yongbyon site since April 2009, but is “monitoring the situation, mainly through satellite imagery.” The IAEA “cannot state for sure” the type of activity at the site without inspectors on the ground, Amano said.

The recent activity at the Yongbyon site suggests that North Korea is “preparing to commence or has already begun” reprocessing nuclear material to separate additional plutonium for weapons use, according to analysis by 38 North dated May 31. Satellite imagery shows delivery of supplies to the radiochemical laboratory and exhaust coming from that facility, according to the report. The imagery, however, indicates that the reactor is operating intermittently and at a low level. North Korea had previously shut down the reactor, but restarted it in 2013.

Speaking to the application of nuclear safeguards in North Korea, in a statement to the IAEA Board of Governors on June 6, Amano said that he remain[s] seriously concerned about Pyongyang’s nuclear program and that it is “deeply regrettable that [North Korea] has shown no indication that it is willing to comply with the Security Council resolution adopted in response to its nuclear test earlier this year.”

On June 7, U.S. and Chinese officials spoke on the North Korean issue while U.S. Secretary of State John Kerry and Treasury Secretary Jacob Lew were in Beijing for the China-U.S. Strategic and Economic Dialogue. Kerry met with Chinese State Councilor Yang Jiechi, where the two sides “had an in-depth exchange of views on the Korean nuclear issue,” according to Yang. At the press conference, Kerry stated that “neither one of our nations will accept North Korea as a nuclear weapons state, and we are both determined to fully enforce…UN Security Council Resolution 2270.”

The UN and IAEA criticized North Korea for continuing to test ballistic missiles and for conducting nuclear activities.

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India Joins Ballistic Missile Initiatives

July/August 2016

By Kelsey Davenport

India joined a voluntary regime last month that promotes transparency around ballistic missile development and was admitted to an export control regime designed to stem the spread of technologies relevant to developing missiles and unmanned systems capable of delivering weapons of mass destruction (WMDs).

New Delhi announced on June 2 that it subscribed to the Hague Code of Conduct Against Ballistic Missile Proliferation. On June 27, the Dutch chair of the Missile Technology Control Regime (MTCR), Piet de Klerk, released a statement saying that the “formal procedures” for Indian membership in the regime were finalized.

U.S. President Barack Obama meets with Indian Prime Minister Narendra Modi at the White House on June 7, the same day they issued a joint statement saying they expected India’s entry into the Missile Technology Control Regime to be imminent. [Photo credit: Dennis Brack-Pool/Getty Images] India’s membership in the MTCR was expected after a June 7 joint U.S.-Indian statement, released during Indian President Narendra Modi’s visit to Washington, said that Modi and U.S. President Barack Obama looked forward to India’s “imminent entry” into the MTCR.

The Hague code of conduct is a voluntary, multilateral initiative subscribed to by 138 countries. It calls on member states “to exercise maximum possible restraint in the development, testing and deployment of ballistic missiles capable of delivering weapons of mass destruction (WMD), including, where possible, to reduce national holdings of such missiles.” States also agree not to assist other countries in the development of ballistic missile programs and to “exercise vigilance” in assisting in space launch programs, given the applicability of the technology to missiles.

Any state can join the code of conduct by subscribing to the group’s principles. Participating states agree to submit pre-launch notifications and declare policies related to ballistic missile development on an annual basis. Austria serves as the administrator for the group.

India already notifies Pakistan at least 72 hours in advance of ballistic missile flight tests under an agreement reached by the two countries in 2005. (See ACT, November 2005.)

The MTCR is an initiative designed to prevent the spread of missiles and unmanned systems capable of delivering nuclear, biological, and chemical weapons. The regime, which was formed in 1987, defines WMD-capable delivery systems as missiles or drones capable of carrying a 500-kilogram payload a distance of 300 kilometers.

MTCR members agree to consider export policy guidelines designed to limit the spread of technologies applicable to the development of WMD-capable missiles and drones.

With India, the MTCR now comprises 35 member states, and new members are admitted on the basis of consensus.

De Klerk’s statement said that India’s membership “will strengthen international efforts to prevent proliferation of delivery systems” capable of delivering weapons of mass destruction.

An official familiar with India’s bid to join the MTCR said on June 22 that one of New Delhi’s “primary motivations” for joining these regimes is to strengthen its bid to join the Nuclear Suppliers Group (NSG). The official said that India is trying to represent itself as a “responsible member of the international community committed to countering proliferation” of weapons of mass destruction and related technologies.

Despite these steps, India was not admitted to the NSG at the group’s plenary meeting in June (see page 23).

The official said that the impact of India’s membership on slowing missile proliferation depends on how vigorously New Delhi adheres to MTCR export controls.

India attempted to join the MTCR at the group’s last plenary meeting, in October 2015, but was blocked by Italy over an unrelated matter. (See ACT, November 2015.) At the time of application, India said its space program was suffering because it was not a member of the regime.

Many technologies and materials applicable to ballistic missile development are also applicable to space launch vehicles, although the MTCR says the regime is not designed to inhibit space programs.

India’s membership does not guarantee it access to sensitive technologies, and other MTCR partner countries can still deny exports because the regime’s guidelines “do not distinguish between exports to Partners and exports to non-Partners,” according to a summary on the MTCR website.

India joined a voluntary regime that promotes ballistic missile transparency and was admitted to an export control regime designed to prevent the spread of ballistic missiles.

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Obama Weighs Nuclear Options

July/August 2016

By Kingston Reif

As his time in office winds down, President Barack Obama is reviewing a number of proposals to advance the nuclear weapons risk agenda he first outlined in an April 2009 address in Prague, a senior White House official said on June 6.

“[O]ur work is not done on this issue,” said Benjamin Rhodes, assistant to the president and deputy national security adviser for strategic communications, at the Arms Control Association’s annual meeting in Washington.

Ben Rhodes, assistant to the president and deputy national security adviser for strategic communications, gives his keynote address at the Arms Control Association annual meeting on June 6. [Photo credit: April Brady/Arms Control Association] According to Rhodes, the different categories of options under consideration include further reductions in the U.S. stockpile of nondeployed, or reserve, nuclear warheads; “additional steps” to lessen the role of nuclear weapons in U.S. policy and reduce the risk of inadvertent nuclear use; reaffirming “the international norm against” nuclear explosive testing; and putting “more nuclear material under appropriate monitoring.”

In addition, Rhodes said the president would continue to evaluate current plans to ramp up spending in the coming years to maintain and modernize U.S. nuclear weapons and also decide whether to “leave the next administration” with recommendations on how to “move forward.” (See ACT, May 2016.)

Defense Secretary Ash Carter told the Senate and House armed services committees in March that he “expects the total cost of nuclear modernization to be in the range of $350-450 billion.”

“Our administration has already made plain our concerns about how the modern-ization budget will force difficult trade-offs in the coming decades,” Rhodes said.

He added that the modernization plans were “developed” early in the administration’s first term “when we...anticipated a different budgetary picture going forward, particularly with respect to our defense budget.”

Congress in 2011 passed the Budget Control Act, which mandated reductions in projected spending in the Defense and Energy departments through the end of the decade.

Rhodes did not specify a timeline for when the president would make a decision on whether to pursue any of the options under consideration and, if so, when he would announce such a decision.

Rhodes noted that the president would continue to speak publicly about nuclear weapons issues, as he did during his visit to Hiroshima on May 27. (See ACT, June 2016.)

Obama delivered his first major foreign policy address as president on nuclear disarmament and nonproliferation in Prague on April 5, 2009. The speech outlined his vision for strengthening global efforts to curb the spread of nuclear weapons and moving forward on practical, immediate steps “to seek the peace and security of a world without nuclear weapons.”

In highlighting what the administration has accomplished since the speech, Rhodes touted “substantial progress in securing vulnerable nuclear materials around the world” as a result of the nuclear security summit process, measures to reduce the role of nuclear weapons in U.S. policy, the negotiation and U.S. Senate approval of the 2010 New Strategic Arms Reduction Treaty (New START), and the July 2015 nuclear agreement with Iran.

Rhodes acknowledged “other areas...where more work needs to be done.”

He said the administration has failed to stop “the advance of North Korea’s nuclear program,” achieve further nuclear weapons reductions beyond New START, and ratify the Comprehensive Test Ban Treaty.

President Barack Obama is reviewing a number of proposals to advance the nuclear weapons risk agenda he outlined in an April 2009 address in Prague.

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UAE Still Committed to Nuclear Pact

July/August 2016

By Kingston Reif

The United Arab Emirates (UAE) remains committed to its obligation under a 2009 agreement with Washington not to enrich or reprocess nuclear material, the country’s ambassador to the United States said on May 31.

Despite reports to the contrary, “we are not planning to change our position,” said Ambassador Yousef Al Otaiba at an event at the Brookings Institution in Washington.

Yousef Al Otaiba, ambassador of the United Arab Emirates to the United States, affirms his country’s commitment to refrain from enrichment and reprocessing during a panel on the Iran nuclear deal at the Brookings Institution on May 31. [Photo credit: Brookings Institution] The UAE’s support for refraining from enrichment and reprocessing was called into question last September, when Rep. Ed Royce (R-Calif.), the chairman of the House Foreign Affairs Committee, said at a congressional hearing that Al Otaiba told him the UAE “no longer felt bound by the agreement” in the aftermath of the July 2015 nuclear agreement with Iran.

Royce said the ambassador “indicated to us…your worst enemy [Iran] has achieved this right to enrich...that now your friends are going to want.”

The 2015 accord permits Tehran to enrich uranium, although under significant constraints.

In the UAE pact, known as a 123 agreement after the section of the U.S. Atomic Energy Act that makes such pacts a prerequisite for U.S. nuclear trade with other countries, Abu Dhabi’s pursuit of enrichment and reprocessing would be grounds for the United States to halt nuclear cooperation with the country, an unprecedented provision in U.S. cooperation agreements.

A Department of State spokesman in 2010 referred to the pact as the “gold standard” of 123 agreements.

“We like being associated with the gold standard,” Al Otaiba said at Brookings. “In fact,” he continued, “we adopted this gold standard particularly to be used as a model going forward.”

Meanwhile, on May 26, Sens. Edward Markey (D-Mass.) and Marco Rubio (R-Fla.) introduced legislation to tighten regulations on U.S. nuclear exports to China and hold Beijing accountable for any violation of the 2015 U.S.-China 123 agreement.

Reps. Brad Sherman (D-Calif.) and Jeff Fortenberry (R-Neb.) introduced a companion version of the bill, titled the China Nuclear Cooperation and Nonproliferation Act of 2016, in the House of Representatives.

The draft bills would require U.S. authorization before China re-exports “U.S.-origin” nuclear technology to other countries and the energy secretary to issue a definition of items that fall into this category.

In addition, the legislation would require the president to monitor China’s compliance with the 2015 agreement and determine if China fails to prevent the transfer of proliferation-sensitive items to countries of concern. If such violations are deemed to have occurred, the president must suspend cooperation with Beijing until a plan of action to address these behaviors is developed and implemented.

The bills would also prohibit the provision of U.S. consent for Chinese reprocessing of U.S. spent nuclear fuel unless the president certifies that fissile material is adequately safeguarded and protected.

The 30-year agreement with China entered into force last October and replaces an agreement signed in 1985. Unlike the 1985 deal, the current pact would grant each party “advance consent,” as specialists call it, to reprocess nuclear material transferred under the agreement and used in or produced through the use of transferred material or equipment. (See ACT, May 2015.)

In the past, U.S. officials have raised concerns about China’s nonproliferation record. For example, China is building reactors in Pakistan at that country’s Chashma site, which U.S. officials have said contravenes commitments that China made when it joined the Nuclear Suppliers Group in 2004. (See ACT, June 2010.)

In a press release announcing introduction of the legislation, Markey said the “agreement with China will only serve America’s interests if it is accompanied by appropriate restrictions and strong monitoring for violations.”

“Without these safeguards, transferring nuclear technology to China will jeopardize both United States national security and the global nonproliferation regime,” he added.

The United Arab Emirates remains committed to its obligation under a 2009 agreement with Washington not to enrich or reprocess nuclear material.

Read more about UAE Still Committed to Nuclear Pact

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