Introduction

Far from being a success the 2005 Review Conference held in New York last weeks underlined the lack of agreement between Nuclear Non-Proliferation Treaty members to adopt common policies towards key issues of the convention. This fatal sign confirms that this regime is almost in intensive care. One of the main reasons of this failure is the impossibility to sustain the discriminatory basis of its members in the contemporary international realm. It is not easy to justify the possession of nuclear weapons before non-nuclear-state members when several factors have affected the original formula consented in 1968.

The present essay will address the impossibility to sustain the discriminatory categories of “have” and “not have” states under the Nuclear Non-Proliferation Treaty (NPT) framework as well as to question up to what extent is possible to justify the possession of nuclear weapons in “legal” or “illegal” basis, in other words, what makes a state a legitimate possessor and what make it an illegitimate one and who decides the difference.

In the first part of the essay I will present the context on which the NPT was negotiated and the legitimacy of its discriminatory nature. In the second part I will argue that although the NPT was born discriminatory in nature and on temporary basis this categorization has a short-term viability on the current world affairs. Many issues are affecting seriously the discriminatory formula negotiated in 1968 such as: the indefinitely extension of the treaty in 1995; the nuclear outside players – India, Israel and Pakistan-; the North Korea withdrawal from the regime; the US invasion to Iraq and the US general approach to arms control and its “Nuclear Posture Review”. I will conclude that the criteria employed by nuclear states to justify their possession have been eroded and questioned by the circumstances presented in the second part of the essay and as a result the discriminatory basis of the NPT regime is extremely difficult to sustain.

The Legitimacy of the Discriminatory Nature

The most successful multilateral treaty in the arms control and disarmament domain is the Nuclear Non Proliferation Treaty (NPT) which was signed on 1 July 1968 and entered into force on 5 March 1970. It currently has 189 members and according to the 1969 Vienna Convention on the Law of the Treaties is absolutely legally binding to its members under International Law. The main purpose of the treaty was to avoid the danger of a nuclear war provoked by the proliferation of nuclear weapons (NP Treaty). However, what makes this treaty rather unique is that its parties are classified into two main categories: nuclear-weapon states and non-nuclear-weapon states. The reason of that distinction responded to the particular necessity to articulate a mechanism that would prevent the horizontal proliferation among non-nuclear states (Spector 2002: 126).

The discriminatory basis between nuclear and non-nuclear states is contained in Article IX paragraph 3 of the treaty which reads as follows: “For the purposes of this Treaty, a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967” (NP Treaty). As a result, for the purpose of the treaty, only the United States, the Soviet Union, (now Russia), Great Britain, France and China are considered “nuclear weapon states” excluding the rest from this category. As a consequence, possessors of nuclear weapons such as India , Israel or Pakistan are not part of this category because their tests or declarations of possession were conducted after that date. In the case of India the first test was conducted in 1974 but was not until its second test of five nuclear devices in 1998 that it declared its nuclear condition. In the case of Pakistan the declaration was as well in 1998 after the detonation of six nuclear devices, five in response to India's 1998 test and one in response to the 1974 India's test (Sagan and Waltz 2003: 88). Israel followed a different path because it has never acknowledged possessing nuclear weapons (Spector 2002:121). While the absence of India, Israel and Pakistan from the NPT regime can be understood as discrimination, based on a “date” factor -1 January 1967, the second form of discrimination takes place inside the regime when classifying states in nuclear and non-nuclear possessors.

Treaties and agreements are based on what Aristotle classifies as “commutative” or “reciprocal justice” that is “the recognition of rights and duties by a process of exchange or bargaining” (Bull 2002: 77). And in this sense the NPT was not an exemption. The right of possession kept by nuclear states and the duty of the rest of the states to refrain from acquiring them was negotiated in exchange of mainly two duties assumed by the former: sharing the benefits of nuclear technology for peaceful purposes set out in Article IV and the conclusion of the arms race and nuclear disarmament established in Article VI (NP Treaty). However, those terms were convened under a transitory basis. According to Article X paragraph 2 in twenty-five years time from the entry into force a conference of state parties would decide between two options: extending the treaty for a fix period or extending it indefinitely (NP Treaty).

The nuclear category under the NPT reflected the structure of power crystallized in 1945 in the United Nations Security Council. The five permanent members with right to veto to non procedural matters imposed to the rest of the international community the model under which the balance of power would function after the Second World War (Malanczuk 1997: 373-5). As Price and Tannenwald note: “nuclear deterrence is a practice reserved for the superpowers and the non-use norm at the same time serves to justify the illegitimacy of the acquisition of nuclear weapons by the majority of the world” (1996: 143). The commitment of nuclear states not to use those weapons against the other parties of the NPT -as a manner to legitimate their possession- will be discussed further in the second part of this essay. However, I want to advance the major issues that facilitated the acceptance of the “asymmetrical application of … nuclear prohibitionary norms to different category of states” consented by the “non-possessors” (Price and Tannenwald 1996: 142).

After the Second World War there was a great concern over the existence of nuclear weapons, the loose control over them and the arms race that would affect the stability set out by the great powers (O'Neill 2000: 191). In other words, what made nuclear states to negotiate the NPT was deterrence. After Hiroshima and Nagasaki there was no doubt that nuclear weapons should remain unused (Price and Tannenwald 1996: 136). However, that feeling was not strong enough to engage in the disarmament road that was first proposed by the Baruch in the so-called “Baruch Plan”. The proposal was designed under the Truman Administration and aimed to control nuclear weapons under the UN umbrella (Price and Tannenwald 1996: 137). Not only the Soviet Union rejected the Baruch Plan accusing the US of monopolizing the management of nuclear technology but also US allies, with exemption of China , opposed the initiative (Waller Jr. 2002: 102).

It was not until the Cuban missile crises that nuclear powers were urged by the necessity of limiting the risks posed by their weapons. The immediate reaction was translated in the 1963 Limited Test Ban Treaty which restricted nuclear tests only to underground (Spear and Robertson-Snape 2001: 45). On the other hand the process to make further steps in nuclear restrictions took more years but finally in 1968 the multilateral agreement on Nuclear Non Proliferation translated the consensus of the international society on the necessity to control the acquisition and use of nuclear weapons (Wheeler 1996:29).

The Cold War imposed the need to preserve the balance of power. The legal basis on which the NPT was negotiated was according International Law. Hence, we can conclude that the discriminatory nature of the NPT was absolutely legitimate and justified not only politically but also from the legal point of view. However, the concession made by non-nuclear states was made in exchange of both: the condition of disarmament and the temporary nature of the treaty. As a result, it is the lack of compliance of those conditions what makes the discriminatory treatment non sustainable.

The Non- sustainability of the NPT

In this part of the essay I will analyze the most significant issues that are affecting enormously the NPT regime and are particularly damaging the relationship between nuclear and non-nuclear possessors. The different circumstances I will discuss – the indefinite extension of the NPT; the non-members' club: India, Israel and Pakistan; the North Korea withdrawal; the US invasion of Iraq and the US Nuclear Arms Policy- question the legitimacy of the “exclusive nuclear club” and present the difficulties to maintain the discriminatory nature under the NPT regime.

1. The indefinite extension

Article VIII paragraph 3 of the NPT requires that Review Conferences be held every five years in order to “review the operation” of the treaty to make sure that the purposes and its provisions “are being realized” (NP Treaty). These conferences create a common forum where debates about nuclear policies take place in formal and informal basis. One example of the latter is the participation of non-governmental organizations (Rydell 2005). In addition to that, Article X paragraph 2 provides for a special conference to be held twenty five years after the entry into force of the treaty in order to decide the extension of it for fixed periods or the continuation of it indefinitely. Hence, in April – May 1995 the Review and Extension Conference was held in New York with the presence of 178 parties (Nuclearfiles.org).

During the 1995 Conference the unconditional indefinite extension of the NPT was the first and most supported proposal. Canada was the coordinator of this alternative; however the biggest sponsors were the US , the UK , Japan , Germany , the Netherlands and France . Of course, Russia did not reject the motion and a group of 39 states which included the majority of Western and Eastern Europe countries, identified as the “Mason Group”, agreed with this initiative in April 1995. By May 5, 111 states parties supported the motion (Essis Essoh 2005: 172-3).

This “blank cheque” in hands on nuclear-weapon states (NWSs) implied to extend indefinitely the obligation of disarmament (Alley 2001:55). In other words, prior to 1995 although there was not a fixed deadline in the fulfillment of Article VI, there was an indirect deadline posed by the “Extension Conference” where non-nuclear-weapon states (NNWs) had the possibility to “punish” or to reconsider on which basis the Treaty would continue. This decision was adopted as part of a bigger framework, the so-called: “Package Deal”. This packaged was composed of three decisions and one resolution. The resolution was about the intention to create a nuclear-free zone in the Middle East; the first decision aimed to reinforce the Review Process of the treaty, the second decision set out some principles and objectives and the last decision was about the willingness of the majority to continue the treaty in effect indefinitely (Rydell 2005).

The most influential factors that favored the NNWSs concession were: a great optimism of the majority of states generated by the end of the Cold War; the strong commitment of the US and the rest of the nuclear powers to support a Comprehensive Test Ban Treaty (CTBT) by 1996; the enthusiasm transmitted to many countries by South Africa, which after abandoning its nuclear programs joined the treaty in 1991 (Alley 2001: 55). This attitude was followed as well by other countries such as Belarus , Kazakhstan and Ukraine which after the end of the Cold War inherited nuclear programs and devices from the former Soviet Union and decide to transfer them and to access the NPT as non-nuclear states. The same optimism was received in Latin America where Argentina and Brazil decided not only to suspend their nuclear programs and joined the NPT but also to participate in the nuclear free zone set out by the Treaty of Tlatelolco (Alley 2001: 55). This “Christmas spirit” was also supported by the 1994 Agreed Framework where the “prodigal son” decided to freeze its nuclear activities at North of the Korean Peninsula in exchange of the replacement of reactors and the supply of heavy fuel oil (Sigal 1998:8).

While the outcome of the Extension and Revision Conference was perceived as a tremendous success in 1995; the US refusal to ratify the CTBT, the collapse of the 1994 Agreed Framework, the current crises with North Korea and the nuclear tests conducted by France, India and Pakistan prove that no progress was made by nuclear states to take the road of disarmament. There is a feeling of discontent among NNWSs because they perceive that the concession made was unfair and they received nothing in exchange. While withdrawal is always an option, there are very few states ready to pay it high cost. The only negotiation tool that would give NNWSs space to maneuver disarmament with NWSs was offered to them in a “silver platter” ten years ago.

2. The non-members' club: India , Israel and Pakistan

The universality of the NPT is diminished by three states which are not part of the treaty: India , Israel and Pakistan . The implication of this situation is particularly interesting because those states are nuclear possessors. Article IX paragraph 3 of the NPT requires that states in order to be considered nuclear parties must have “manufactured and exploded a nuclear weapons or other nuclear explosive device prior to 1 January 1967” (NP Treaty). Hence, as explained in the first part of this essay India , Israel and Pakistan cannot access the treaty as NWSs but only as NNWSs. Moreover, the 2000 Review Conference confirms that states which are nor part of the regime can only access the treaty as non-nuclear-weapon states (Applegarth and Rhiana 2005: 38).

Why the US has not invaded Israel as it did with Iraq ? It can be argued that from a legal point of view, Israel is not violating the NPT because it is not part of it. However, being in the shadows of the law makes Israel an illegitimate nuclear possessor and the US , as it main protector, will always “turns a blind eye” (Hagerty 2001: 107). The major problem with Israel is that the US is permitting it the possession of nuclear weapons for both reasons: the US and Israel are allies, hence Israel is not going to use its nuclear weapons against the US or its friends; secondly, to increase its security in the Middle East due to the conflict with Palestine . This situation is affecting enormously the NPT regime, not only because being outside the regime Israel is not subject to any verification process but also is provoking and generating the proliferation of nuclear arms in the Arab World. This last argument is of major concern because while the US can up to some extend “control” Israel as a nuclear power it cannot do the same with other Arab countries. If Israel would disarm and accesses the NPT will always have the support of the US and would decelerate the urgent need of its neighbors to procure nuclear weapons. The case of India and Pakistan offers different features but the same threat. Assuming that the nuclear possession of India and Pakistan is based on the deterrence that they exert each other is correct but it is just half of the truth.

The nuclear India 's doctrine is according to Hagerty based on two pillars. The first is related with the challenge posed by China . India 's aim is to assurance “a second strike nuclear capability vis-à-vis China ” (2001:105). Indian Prime Minister Vajpayee explained in 1998 that India did not intend to engage in a nuclear arms race and that by no means was looking for matching China 's nuclear arms in terms of quantity. India argues that its only purpose is to generate a “credible deterrent” and wants to prevent war rather than starts it (Hagerty 2001:106). The second pillar is a consequence of the first one: the no-first-use approach. India bases its WMD in the need to deter nuclear attacks and to avoid “political-nuclear blackmail” (Hagerty 2001: 106).

On the other hand, Pakistan has a completely different approach to nuclear matters. It refuses the non-first-use position and its deterrence is oriented to both nuclear and conventional aggression (Hagerty 2001:107). One of the big differences that explain the contrasting approaches of these countries is the actor who is in control of the nuclear programs in each state. In India the civilians has control on nuclear and military issues since its independence. All the decisions over nuclear tests, production, management and control of the programs are exclusively on civilian hands. On the other side of the road the military forces have been controlling all nuclear issues. In Pakistan , even during civilian governments, prime ministers have never had direct control over nuclear decisions. Moreover, they have never had acknowledged with complete details of nuclear weapon programs (Sagan 2003:91-2).

Those different approaches implied also different manners to perceive the military preparation of the other party. Pakistan is much more vulnerable to misunderstand India 's military exercises and much more ready to decide a counter offensive attack (Sagan 2003: 93). The India-Pakistan case is a triangle where China plays a vital role. India wants to deter China and in this enterprise is indirectly challenging Pakistan to increase its capabilities. Without China 's deterrence the India and Pakistan situation would be much easier to handle (Hagerty 2001:107). Here again, the responsibility of the case rest very much on China , one of the legitimate possessors under the NPT. If China would engage in a disarmament process it would generate better conditions to negotiate the accession of India and Pakistan to the NPT regime. 

3. The North Korea 's withdrawal

In January 2003 Democratic People's Republic of Korea (DPRK) announced that it was going to make use of the prerogative set out in Article X paragraph 1 of the NPT. This provision permits state parties to withdraw from the treaty in the case that “extraordinary events related to the subject matter of this Treaty, have jeopardized the supreme interests of its country”. This decision should be communicated to the other state parties as well as to the UN Security Council at least three months in advance (NP Treaty). However, as Applegarth and Tyson cited, DPRK manifested “an automatic and immediate effectuation of its withdrawal from the NPT” and considered that was “totally free from the binding force of the Safeguards Accord with the IAEA” (2005: 30). The IAEA reported the situation to the UN Security Council claiming that DPRK had violated the safeguards obligations under the NPT but the latter took no actions on this respect (Applegarth and Tyson 2005: 30).

Two main considerations can be made from this situation. First, the necessity to create more complex proceedings to avoid the withdrawn from the regime as well as to strengthen the mechanism to deal with cases of non-compliance (Applegarth and Tyson 2005: 30). Addressing this concern Germany presented a working paper to the 2004 PrepCom suggesting diverse recommendations such as: a) states should submit in a written format the information on which they based the cause of their withdrawal, b) states should consult the other NPT-parties prior to exercise the right of withdrawal, c) a list of the criteria that describes what an “extraordinary event” is in order to withdraw from the NPT, d) the impossibility to exercise the right to withdraw when the state is being judged for noncompliance with the treaty, e) in case of withdraw the state should return the nuclear material, technology and know-how to the supplier or to the IAEA and e) that although withdrawal the state remains responsible for the acts and violations against the NPT for the time it was party (Applegarth and Tyson 2005: 31). Notwithstanding the preliminary reports submitted by Germany and France the 2005 Review Conference was unable to reach a single agreement on this issue (Nason 2005: 14). Consequently, the damage that caused the North Korea withdrawal from the regime not only reveals its nuclear activities but also exposed the fragility of the regime and the incapability of the state parties to save it from the death.

The second consideration is related to the different treatment rendered by the US to two NPT violators: Iraq and North Korea . Why the US did not invade North Korea when it has an enormous military force and a more advanced WMD program than Iraq ? Why this differential treatment to two “axis of evil”? Two main arguments can answer those questions: First, that although North Korea possess major capabilities than Iraq its intention is different. According to Howard deterrence is about intentions that make capabilities be perceived as threats (Howard 2004: 811). The US argued that the decision was made considering the feasibility of a state to use those weapons against the US than in its real nuclear capacity. However, as it is discuss below in 4. The invasion of Iraq the absence of weapons of mass destruction (WMD) in Iraq made the US invasion much easier because no nuclear retaliation was expected. On the other hand, it is the real existence of WMD in North Korea what is deterring the US military intervention in that country (Howard 2004: 811).

The other reason that can explain the preference to conduct the North Korea crises through a diplomatic channel and not by the resort of the use of force is that it creates the perfect excuse for the US to justify its national missile defense system (Howard 2004: 811). It seems that WMD are the perfect excuse that the US present in order to pursue its own interests. In the case of Iraq , as it is explained below, the WMD were the excuse to change the Iraq regime and to gain major influence in the Middle East . In the case of North Korea , the WMD are seen differently because North Korea has no intention to use them against the US , but to survival. However, remaining those weapons in the Korean Peninsula creates the case on which the US decided to base its missile defense system. This is exactly the opposite to “disarming”.

4 . The US invasion of Iraq

I present the case of the 2003 Iraq War separately from the US Nuclear Arms Policy because especial considerations should be made on the particular damage infringed to the NPT regime by the US actions. The main reason sustained by the US and its allies to violate the sovereignty of Iraq as well as many rules of International Law - such as the lack of a United Nations Security Council Resolution to resort to the use of force- was that Iraq possessed WMD (Hanson: forthcoming). Being suspected of having WMD Iraq was considered as a flagrant violator of the NPT regime. As a consequence, the US and its allies decided to enforce the NPT norms and invaded Iraq to “stop the crime”. After months of finding no weapons the original perpetrator became the victim.

There are big suspicious that the US knew that there were no WMD in Iraq but the excuse of enforcing the NPT was appropriate to achieve “private” goals such as the implementation of a new regime as well as gaining a more influencing presence in the Middle East (Hanson: forthcoming). The US manipulation of the regime caused an enormous damage not only to its relation with the NNWSs but also with NWSs because their collaboration will be extremely difficult to obtain for future cases (Hanson: forthcoming).

Another interesting question is what makes the difference between Iraq and the rest of nuclear possessors such as India , Israel , Pakistan and North Korea . Some of them are confirmed and other suspected of having nuclear weapons and nuclear programs, however only on Iraq extreme actions were taken (Hanson: forthcoming).

The only positive aspect that can be rescued from the Iraq invasion in terms of nuclear non-proliferation is the “rehabilitation” of Libya . After the Iraq War Libya agreed to dismantle its WMD, agreed to sign an additional protocol with the International Atomic Energy Agency (IAEA) – to allow more rigorous inspections – and “rejoined the international community after years of isolation” (Kerr 2004). Iran also demonstrated “good intentions” and after the Iraq War is more willing to cooperate with IAEA inspectors and with the NPT provisions (Kimball 2004).

Apart from this side-effect on Libya and Iran , the Iraq War revealed the consequences of the different agendas in the NPT regime. While nuclear states do literally “nothing” to fulfill the obligation of disarming provided in Article VI, they do “everything” to disarm others, even when those “others” have nothing to disarm.

5. The US Nuclear Arms Policy

The US Congress required from the Defense Department a “Nuclear Posture Review” (NPR) to guide American nuclear policy for the next ten years. Based upon the “Quadrennial Defense Review” the NPR was released in January 2002 and presents a completely revised approach that transforms the American strategic position (NPRR 2002). This new approach is in flagrant opposition with the spirit and the letter of the NPT regime.

Nuclear Testing is an activity that is related with nuclear possessors. The prohibition of nuclear tests was negotiated in 1995 by NNWS as a condition to agree with the indefinitely extension of the treaty. In 1996 most states supported the Comprehensive Test Ban Treaty, however the treaty still needs 11 ratifications of the 44 nuclear-capable states in order to entry into force (Applegarth and Tyson 2005: 20). Notwithstanding President Clinton has singed the CTBT President Bush has decided not to ratify it (Campbell 2002). When President George W. Bush assumed his mandate declared that although he was not going to ratify the treaty, the 1992 self-imposed moratoria was still in force. However, the Nuclear Posture Review Report states that the testing moratorium “may be not possible for the indefinite future” and that each year the need to nuclear testing is going to be revised. The Report justifies nuclear testing by noting that: “Nuclear nations have a responsibility to assure the safety and reliability of their own nuclear weapons” (NPRR 2002). United Kingdom and France ratified the CTBT in 1998, Russia in 2000 and only China and the US are not part of it yet (Applegarth and Tyson 2005: 21) . However, the US posture adopted by its new nuclear approach is extremely provocative for states inside and outside the NPT regime. The CTBT was thought to reinforce the NPT regime and the US declaration is a dagger in the heart of the treaty.

The “testing” provision in the Nuclear Posture Review Report affects the core concept behind the justification of “nuclear possession” that is: the “non-use-norm”. Although negative security assurances are politically but not legally binding they constitute a vital element that sustains the “right” of nuclear states to keep their weapons. The US new approach, considering testing a probable action, does not longer subscribe the essential element on which the justification on nuclear possession rests.

The US unilateralism is also reflected in its Missile Defense System. In 2002 the Bush Administration decided to withdraw from the 1972 Anti-Ballistic Missile Treaty (ABM) in order to develop a national and international missile defense system. During the 2000 Review Conference of the NPT state parties adopted the “13 practical steps” to fulfill the obligation set out in Article VI that is to pursue disarmament. Step number 7 made especial consideration on the preservation of the ABM treaty (Applegarth and Tyson 2005: 29) . But the US simply does not care about the compromises assumed when they are not in accordance with its own agenda. The major concern about this decision was expressed by different voices: Russia qualified the US withdrawal from the ABM treaty as a “wrong step”; the New Agenda Coalition stressed the negative impact it has on the strategic stability in order to facilitate disarmament and Egypt commented that this withdrawal is creating “uncertainty with negative consequences for disarmament” (Applegarth and Tyson 2005: 29) .

The US missile defense program is also related with the weaponization of the space, because the missile system depends on satellites for communications, and the Bush Administration has also planned to deploy by 2008 “space-based interceptors for testing purposes” (Applegarth and Tyson 2005: 29) . Last May it was made public that the US Air Force is pursuing to replace the 1996 Clinton policy, which preserved the space mainly for pacific use, for a new presidential direction that authorizes to field offensive and defensive weapons in the outer space (Weiner 2005: 1).

All the US initiatives and actions mentioned above are jeopardizing the NPT regime as well as regional and global security. The US is acting irresponsibly towards the international community as a whole. Its unilateral approach does not discriminate between “legal” or “illegal” because International Law has become a flag of convenience that only applies when is favorable to its national interests.

Conclusion

The NPT was one of the major successes in the arms control and disarmament domain. Although it has not achieved disarmament it has generated predictability in nuclear-horizontal proliferation during the last thirty five years. In other words, it is better to have it than to not have it. However, the very nature on which it bases the discriminatory nature of its members has been eroded and damaged by different circumstances.

The indefinitely extension of the NPT can be regarded as a good bargaining with bad results because NNWSs have lost their tool to negotiate disarmament with NWSs. The possession of nuclear weapons by India , Israel and Pakistan are provoking some states in Asia and in the Middle East to engage in an arms race competition. The North Korea withdrawal from the NPT is stimulating the necessity of nuclear weapons in South Korea and Japan , and at the same time its nuclear position is being used by the US as an excuse to advance its missile defense system. The Iraq war revealed that the US national interests will be pursued through any mean and at any cost. And last the new US Nuclear Approach is attempting to override thirty-five years of consensus.

From the circumstances mentioned above the one that is exacerbating the asymmetries between nuclear and non-nuclear states is the provocative manner on which the US is conducting its Foreign Policy, the lack of commitment with previous pacts, the unilateral style to conduct international operations and the irresponsible manner on which is setting up its nuclear agenda. Disarmament has become a promise almost impossible to fulfill and at the same time the difference between “legal” and “illegal” has become odd because the US is demonstrating that International Law is relative and it only matters when it serves its own interests.

Up to what extension the international society would accept that this irresponsible nuclear power decides who is a rogue state and who can have and who cannot nuclear weapons remains unanswered. The Bush Administration is pushing to the extreme the patience of many states, especially of those that keep the capability or the intention to develop nuclear weapons.

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