“I feel impelled to speak today in a language that in a sense is new, one which I, who have spent so much of my life in the military profession, would have preferred never to use. That new language is the language of atomic warfare.” With these words, the US President Dwight Eisenhower addressed the United Nations General Assembly in 1953, presenting the threat of a nuclear catastrophe that impended over the world like a giant sword of Damocles. It was 1953, more than sixty years ago. However, today the world still faces the possibility of an act of warfare or terrorism in which nuclear weapons are deployed. Recently, the development of an agreement framework on nuclear disarmament that involves the nuclear powers and the Islamic Republic of Iran has brought the topic of nuclear security to the front page. That threat, however, has been constantly present since 1945, and the UN General Assembly has served as a key forum for discussing how to avoid a nuclear conflict and ensure the deployment of atomic energy only for peaceful purposes. In JCU MUN 2016, member states will meet once again in the General Assembly to discuss an international political and legal solution for nuclear disarmament and the prevention of nuclear warfare.
1. HISTORICAL INTRODUCTION
1A. The development of the atomic bomb
1B. The United Nations and the Nuclear Threat
1C. The case if Iran
2. THE NUCLEAR CONTROL REGIME
2A. From Eisenhower’s speech to the IAEA
2B. The Non-Proliferation Treaty
2C. Nuclear-weapon-free zones
2D. Nuclear terrorism
3. INTERNATIONAL LAW AND NUCLEAR WEAPONS
3A. Does international law categorically prohibit the use of nuclear weapons?
The discovery of nuclear energy in the first decades of the 20th Century led, almost immediately, to the application of this new technology to states’ military strategies, during the final period of the Second World War. When the United States dropped two atomic bombs on Hiroshima (August 6, 1945) and Nagasaki (August 9, 1945), not only did it crush Japan’s formidable will to resist: it also demonstrated American military superiority over any possible opponent, especially the Soviet Union. The post-WWII period, therefore, developed under the shadow of those two nuclear mushrooms. The other great powers felt threatened by the United States’ military might and started to seek their own nuclear weapons for the purpose of self-defense. The Soviet Union developed nuclear weapons in 1949, causing panic in the West and pushing the United States to develop more powerful weapons of its own. In 1951, American scientists Edward Teller and Stanislaw Ulam designed the thermonuclear weapon, or H-bomb, hundreds of times more powerful than the one dropped on Hiroshima.
Not only the United States and the USSR developed nuclear armaments. Within twenty years after Hiroshima, five states had conducted tests with the aim of developing nuclear weapons: the US (1945), the USSR (1949), the United Kingdom (1952), France (1960) and the People’s Republic of China (1964).During the Cold War, the world lived in fear of Mutually Assured Destruction (M.A.D.): a U.S. and Soviet strategy of military deterrence, according which any state that attacked first would face massive destruction in retaliation, making the aggressive use of nuclear weapons de facto suicidal. In the event of a war in which the nuclear superpowers were involved, the deployment of nuclear armaments would escalate the number of casualties and damages up to the virtual annihilation of mankind and the world. This prospect obviated any kind of rational use of such weapons in the first place.
The main policy followed by states was nuclear deterrence: the development of nuclear arsenals with the purpose of discouraging an enemy from striking first and suffering the disastrous consequences of retaliation. The practical consequence of deterrence, however, was an escalation of tensions, with the increase and diffusion of nuclear arsenals, which was the main fear expressed in Eisenhower’s 1953 speech: “It is a danger shared by all… which will increase helplessly the probability of civilization destroyed.” But at the same time, the policy of détente was taking place: a warming of diplomatic relations, especially between the United States and the Soviet Union, leading to a reduction of nuclear arms through arms reduction or non-proliferation treaties (1969-1976).
The Charter of the United Nations, adopted in 1945 while the first (and only) atomic bombs were deployed in the course of warfare, stands firmly in opposition to the armament race. The UN Charter is willfully oblivious to nuclear weapons, and it does not mention the atomic threat at any point. However, disarmament is clearly included in the goals of the UN, and it is mentioned in several points of the Charter like Article 11 and Article 26. In particular, the General Assembly plays a key role in promoting disarmament (UN Charter, Article 11):
The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments […].
The provisions of Article 11 led to the creation of the First Committee of the General Assembly, concerned “with disarmament and related international security questions.” With governments becoming increasingly preoccupied with nuclear escalation, over time this committee has produced relevant resolutions concerning nuclear disarmament, which have led to the drafting of the main treaties that ensure nuclear control: the Statute of the International Atomic Energy Agency and the Nuclear Non-Proliferation Treaty, which will be dealt with in the next section of this study guide. While a non-proliferation regime among the super-powers (which had already attained their own nuclear weapons) was taking form, other states pursued their own nuclear arsenals. In 1974, India tested its first nuclear weapon, and Pakistan did the same in 1998. In 2006, the Democratic People’s Republic of Korea tested its first nuclear warhead. Israel and South Africa also had a nuclear program in the 1980s. South Africa dismantled its nuclear arsenal in the early 1990s, while Israel still possesses an estimate stockpile of 40-800 nuclear warheads.
1C. The case of Iran
In the 2000s, the Islamic Republic of Iran started an independent program of uranium enrichment which did not subject to the supervision of the IAEA (as discussed in the next section). The international community viewed Iran’s program as a path leading to the development of any nuclear warheads which could easily reach most of the Middle East and Europe. For this reason, in 2006/2007 the UN Security Council adopted Resolutions 1737 and 1747, calling for selective economic sanctions against Iran under UN Charter Article 41. Such economic sanctions have been in place for almost a decade. In the meantime, multilateral talks were held between the five permanent members of the UNSC with the addition of Germany (“the P5+1”), the European Union, and Iran. The result of the talks is a set of “Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran's Nuclear Program”, adopted in April 2, 2015 (US Department of State), and a definitive accord of July 14, 2015. The government of Iran has agreed on limiting its uranium enrichment program, turning several nuclear bases into scientific centers, and accepting IAEA supervision, in exchange for the lifting of much of the economic sanctions against it. The final accord is yet to be ratified by the legislatures of the US and Iran. If the deal is approved domestically, Iran will not be able to develop a nuclear weapon for one year at the very least. The supporters of this Nuclear Agreement – the governments of the P-5 and the European Union, which moved to turn a dangerous enemy into a possible ally - believe that it can keep the Middle East free of nuclear weapons and perhaps start talks for the nuclear disarmament of Israel. On the contrary, opponents – among which are Iran’s strategic rivals, Israel and Saudi Arabia, whose governments consider Tehran a threat to their survival and influence – regard the deal as a “historic mistake”: Iran, they claim, cannot be trusted because of its recent political history, and the accord will pave the way for a new nuclear-weapon-equipped state.
Nine states currently possess nuclear weapons: the United States, the Russia, China, the United Kingdom, France, India, Pakistan, North Korea and Israel. If any of these states were to opt for the use of the atomic bomb against another state, the threat of M.A.D. would become reality. At the same time, other states have nuclear programs which might have the task of developing nuclear-weapon capability in the future. Moreover, non-state actors may be coming closer to gaining access to nuclear know-how and technology. The necessity of ensuring nuclear security and non-proliferation is, therefore, timely and urgent.
THE NUCLEAR CONTROL REGIME
2A. From Eisenhower’s speech to the IAEA
Several factors contributed to the development of a nuclear non-proliferation regime in the 1950s and 1960s. First of all, President Eisenhower’s address to the General Assembly demonstrated that, their nuclear hegemony challenged, Americans started to see the nuclear weapons race as running out of control: “If at one time the United States possessed what might have been called a monopoly of atomic power, that monopoly ceased to exist several years ago.” Eisenhower’s proposal, however, was not one of completely dismantling nuclear arsenals. He called for the creation of an international atomic energy agency under the aegis of the United Nations which could “devise methods whereby fissionable material would be allocated to serve the peaceful pursuits of mankind.” The agency would be responsible for collecting atomic material from the nuclear powers’ voluntary contributions, and ensure its deployment for scientific and energetic purposes. It would try to slow down the race between the superpower states that had already attained nuclear weapons, while keeping everyone else out altogether.
Following the “Atoms for Peace” speech, several U.N. member states moved for the establishment of the International Atomic Energy Agency (IAEA) in 1957, with the purpose of ensuring “the contribution of atomic energy to peace, health and prosperity throughout the world” (Statute of the IAEA, article 2). Central to the work of the IAEA is article 12.1 of the Statute, which deals with the Agency Safeguards System:
The Agency shall have the right to examine the design of specialized equipment and facilities, including nuclear reactors, and to approve it only from the view-point of assuring that it will not further any military purpose and that it complies with applicable health and safety standards[…].
The Agency Safeguard System, which is developed into a series of bilateral and multilateral safety agreements between the IAEA and states, became the fundamental tool to ensure that states were deploying nuclear energy for peaceful purposes, and not pursuing atomic warheads. For example, the UNSC resolutions and sanctions against Iran derived, in the first place, from the Islamic Republic’s violations of its obligations under the IAEA Statute in its unwillingness to allow the IAEA Staff of Inspectors into the Natanz nuclear plant.
2B. The Non-Proliferation Treaty
Yet, despite the establishment of the IAEA, the world came very close to a nuclear conflict in 1962, when the US and the USSR threatened the use of nuclear ballistic missiles in the “Cuba Missile Crisis.” In the aftermaths of the event, UN member states drafted the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in the Outer Space and under Water, and in 1968 they approved what is today considered as the cornerstone of the contemporary nuclear regime: the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). While valid in its own right as international treaty law, the NPT builds upon earlier norms: the doctrine of disarmament (the Geneva Conventions, the Protocol to the Hague Convention and the Antarctic Treaty), the UN Charter (article 2.4 on the prohibition of threat and use of force) as well as the IAEA statute, with its declared aim “to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake measures in the direction of nuclear disarmament.”
The NPT identifies five “nuclear-weapon states” (states which manufactured and exploded a nuclear weapon device prior to 1 January 1967: US, USSR, UK, France, PRC – parties who are also the UNSC 5 permanent members), parties which have the right of retaining their nuclear capability. It prohibits all other party states from developing nuclear weapons. It calls on party states to accept the IAEA Safeguard System (Art. 3.1) and reiterates every state’s right to exchange nuclear materials and produce nuclear energy for peaceful purposes (Art. 3.4). Article 7 recognizes the states’ right to “conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.” This Article 7 was the basis for the establishment of Nuclear-weapon-free zones around the globe.
As an international treaty, however, the NPT has the major liability of being valid only for the states that have signed and ratified it. Article 10.1 recognizes each sovereign state’s “right to withdraw from the Treaty if it decides that extraordinary events… have jeopardized the supreme interest of its country”. There is no penalty, internal to the Treaty itself, for states withdrawing from it, as demonstrated by North Korea which withdrew in 1997 when it decided that it wanted a nuclear arsenal anyway. And some states have never even signed the NPT in the first place (India, Pakistan, Israel). In line with their obligations under the UN Charter, those states that are not part of the NPT claim that they use atomic energy only for peaceful purposes (in accordance with the Treaty’s principles) and for national defense, and that they will join the treaty once they are recognized the status of nuclear power like the UNSC P-5.
Despite this weakness, the current regime of nuclear control has nevertheless taken shape under the terms of the NPT. The IAEA has concluded comprehensive safeguard agreements with states party to the Treaty, as well as voluntary agreements with the nuclear-weapon states and with some non-NPT states. The importance of the Non-Proliferation Treaty was reiterated in 1995, when party states decided to extend the treaty for a indefinite period, and in the NPT Review Conferences that take place every five years (the last of which in 2015) to discuss the possibility of solving current issues on the basis of the Treaty. The NPT was also the basis for further treaties on nuclear disarmament, such as the Comprehensive Test Ban Treaty (CTBT), approved by the General Assembly in 1996, which bans every kind of nuclear-weapon test on the planet Earth. The treaty, however, still needs to be ratified by several states (Iran, Egypt, but also officially nuclear states like the United States and China).
2C. Nuclear-weapon-free zones
An important piece of nuclear governance that was developed on the basis of the NPT is the creation of nuclear-weapon-free zones (NWFZ). These zones are established on the basis of free arrangements among states concerned, in which “the status of total absence of nuclear weapons is defined” and “an international system of verification and control is established” (UN GA Resolution 3472 B of 1975). Several NWFZs have been established since 1975, each of which was created with a treaty and under the consent of the nuclear-weapon states, which agreed not to deploy nuclear-weapon facilities in the zones. The existing NWFZs are: Latin America and the Caribbean (Treaty of Tlateloco), the South Pacific (Treaty of Rarotonga), South-East Asia (Treaty of Bangkok), Africa (Treaty of Pelindaba), Central Asia, and Mongolia (self-declared nuclear weapon free status). The NWFZs can be added to the other reachable areas that are free from nuclear weapons (the Antarctic, the Outer Space, the Moon and the Seabed). The situation of Europe is the complete opposite of a NWFZ, as several states host and share nuclear warheads of the United States as part of NATO’s nuclear weapon sharing policy (Germany, Netherlands, Italy, Belgium, Turkey).
Part of the international community’s effort in the last decades has been the fostering of new NWFZs in the hope of circumscribing the areas in which a nuclear device can be stored and deployed, and eventually achieving nuclear disarmament as a norm of customary international law. General Assembly Resolution 67/28 of 2012 called for the “Establishment of a Nuclear-Weapon-Free Zone in the region of the Middle East”, and reports from states and other actors welcomed this proposal. However, a nuclear-weapon-free zone in the Middle East is far from becoming a reality: the reports sent by the governments of Cuba, Iraq, Jordan, Libya and Syria to the UN Secretary General in 2013 blame the State of Israel’s unwillingness to accede to the NPT as a non-nuclear state and to submit its nuclear facilities to IAEA control as the factor impeding the implementation of a NWFZ (A/68/124, Secretary General Report). In contrast, the Report of Israel stresses the current lack of confidence and a common vision as the cause of “four major violations of the NPT in the Middle East – Iraq under Saddam Hussein, Libya, Syria and Iran” (Response by Israel to the Secretary- General Report). The nuclear deal achieved between Iran and the P5+1 may pave the way for a limited NWFZ in the Middle East, but there will not be a multilateral agreement before a climate of confidence-building is achieved. The UN General Assembly might be the best available venue to nurture that confidence.
2D. Nuclear terrorism
States are not the only international actors that may deploy a nuclear device. The threat of nuclear terrorism is another aspect of the nuclear security regime, to which attention has been drawn since the 2001 terrorist attacks. In particular, the claimed relations between the Islamic Republic of Iran and transnational Shiite terrorist groups have led Iran’s opponents to presume that a nuclear Iran might provide nuclear material to those groups. The UN Security Council has addressed this threats with two resolutions.
Security Council Resolution 1373, which was adopted in 2001 under Chapter VII of the UN Charter, notes with concern the close connection between international terrorism and the illegal movement of nuclear materials. The resolution emphasizes the need to enhance coordination of national, regional and international efforts in order to strengthen a global response to this serious challenge and threat to international security. The resolution obliges all States to criminalize assistance for terrorist activities, deny financial support and safe haven to terrorists and exchange information for the prevention and prosecution of criminal acts.
United Nations Security Council Resolution 1540 was adopted in 2004 under Chapter VII and obliges all States to adopt and enforce appropriate effective laws which prohibit non-State actors to manufacture, acquire, possess, develop, transport, transfer or use nuclear weapons, in particular for terrorist purposes, and to establish domestic controls to prevent the proliferation of nuclear weapons, including the establishment of appropriate controls over related material. To this end, States are obliged to implement a variety of accounting and control measures. These include: physical protection measures; border controls; measures to detect, deter, prevent and combat illicit trafficking; and import and export control measures (Source: IAEA, “UN Security Council Resolutions on Nuclear Terrorism”).
These two resolutions should ensure that sovereign states do not provide the nuclear resources they control to non-state terrorist organizations. But in the 21st century, with some organizations (Boko Haram, ISIL) taking control of the territory and the resources that fragile states cannot administer, these measures might not be sufficient.
INTERNATIONAL LAW AND NUCLEAR WEAPONS
3A. Does international law categorically prohibit the use of nuclear weapons?
The establishment of the IAEA recognized the right to use atomic energy for peaceful purposes. The Non-Proliferation Treaty prohibited the further development of nuclear weapons and laid the grounds for nuclear disarmament. However, none of the previous treaties were specifically meant to prohibit the use of nuclear weapons in any circumstances, in peace or in warfare. For this reason, the World Health Organization petitioned the International Court of Justice (ICJ) for an Advisory Opinion on the “Legality of the Threat or Use of Nuclear Weapons.” The ICJ issued such Advisory Opinion on July 8, 1996, after listening to reports of hundreds of states’ delegations and analyzing the various pieces of international law.
The question addressed was: “Is the threat or use of nuclear weapons in any circumstances permitted under international law?” States’ delegations were divided in two blocks, those who claimed that nuclear weapons cannot be used in any circumstances (mostly, the states that form part of NWF zones and those who do not possess nuclear weapons) and those who affirmed that in some special circumstances the recourse to nuclear armaments is lawful and legal (the P-5 and other nuclear-weapon-sharing states belonged to this group). The ICJ analyzed the following:
Whether the use of nuclear weapons would go against Human Rights law (International Covenant on Civil and Political Rights, Convention on the Prevention of the Crime of Genocide) or International Humanitarian Law, which prohibits unnecessary suffering and the targeting of civilians;
Whether the use of nuclear weapons violates the UN Charter, in particular Article 2.4 on the prohibition of threat and use of force, and Article 51 on the right to self-defense in response to an act of aggression;
Whether the use of a nuclear device would necessarily violate the principle of proportionality, which limits states’ defensive responses to an armed attack to what is “proportionate” to the attack itself;
Whether the treaties prohibiting the use of weapons of mass destruction – such as chemical and biological weapons – create a rule of customary international law banning nuclear weapons as well;
Whether states are developing a customary practice of non-utilization of nuclear weapons, basing on MAD; the policy of détente and on the establishment of nuclear-weapon-free zones.
3B. The answer of the ICJ
Although the ICJ recognized the importance of pursuing complete nuclear disarmament according to the NPT, the conclusions of the Advisory Opinion shocked those who were sure that nuclear weapons could never be lawfully used. The Court declared that “There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons,” but also “[t]here is … no comprehensive and universal prohibition of the threat or use of nuclear weapons as such”! The ICJ added that, to be legal under international law, the use of nuclear weapons must respect the international law of armed conflict and international humanitarian law: most importantly, any nuclear attack must be proportionate, and not cause unnecessary suffering. The Court ruled that, in extreme circumstances of self-defense (under the threat of a massive attack in which the very survival of a state could be at stake), a state’s right to self-defense might imply a right to use a nuclear weapon (for more details, see International Court of Justice, “Advisory Opinion on Nuclear Weapons”, p. 266).
Of course, the ICJ was not equipped to judge whether or not this was possible, and there remain plausible arguments on both sides. Its Advisory Opinion is therefore not a definitive answer to the question of the legality of use of nuclear weapons. Still, its significance lies in its legitimization of state recourse to nuclear weapons in self-defense. The window for the legitimate use of nuclear weapons is admittedly small, as the nuclear warhead must avoid targeting non-combatants and procuring unnecessary damage to the population and the environment. But the Court did not categorically exclude this possibility.
QUESTIONS FOR DELEGATES
Should the General Assembly pursue a categorical prohibition of nuclear weapons?
Do the Resolutions addressing the use of nuclear weapons by non-state actors (nuclear terrorism) go far enough?
How should the international community deal with states that refuse to submit to the NPT system?
Should the United Nations pursue the establishment of other Nuclear-Weapon-Free Zones in regions such as the Middle East?
The Charter of the United Nations. http://www.un.org/en/documents/charter/
World Nuclear Association. “Outline History of Nuclear Energy.” http://world-nuclear.org/info/Current-and-Future-Generation/Outline-History-of-Nuclear-Energy/
International Court of Justice, 1996. “Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996.”
International Atomic Energy Agency, 1957. “The Statute of the IAEA.” http://www.iaea.org/About/statute.htlm
NPT Review Conference, 2005. “The Treaty on the Non-Proliferation of Nuclear Weapons.” http://www.un.org/en/conf/npt/2005/npttreaty.html
Address by Mr. Dwight D. Eisenhower, President of the United States of America, to the Plenary Meeting of the United Nations General Assembly, 8 December 1953 (“Atoms for Peace”). https://www.iaea.org/about/history/atoms-for-peace-speech
US State Department, Office of the Historian. “Détente and Arms Control.” https://history.state.gov/milestones/1969-1976/detente
NPT Review Conference, 2015. “Activities of the International Atomic Energy Agency relevant to Article III of the Treaty on Non-Proliferation of Nuclear Weapons. Background Paper.”http://www.un.org/en/ga/search/view_doc.asp?symbol=NPT/CONF.2015/13
United Nations General Assembly, 2012. “Establishment of a Nuclear-Weapon-Free Zone in the Middle East.” https://gafc-vote.un.org/UNODA/vote.nsf/958591109a21b54c05256705006e0a5c/e6692eaf446c41e085257ad2005236d1/$FILE/A%20RES%2067%2028.pdf
Report by the Secretary General, 2013. “Establishment of a Nuclear-Weapon-Free Zone in the Middle East.” https://disarmament-library.un.org/UNODA/Library.nsf/a45bed59c24a1b6085257b100050103a/e12c3fdee123f66e85257bc000516a1c/$FILE/A%2068%20124%20Part%20I.pdf
US Department of State, Office of the Spokesperson, 2015. “Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran’s Nuclear Program.” http://www.state.gov/r/pa/prs/ps/2015/04/240170.htm
Arms Control Association. “UN Security Council Resolution on Iran”. https://www.armscontrol.org/factsheets/Security-Council-Resolutions-on-Iran
International Atomic Energy Agency. “UN Security Council Resolutions on Nuclear Terrorism.” http://www-ns.iaea.org/security/sc_resolutions.asp
6. USEFUL WEBSITES FOR RESEARCH
The CIA World Factbook: https://www.cia.gov/library/publications/the-world-factbook/
Your country’s official website (e.g. http://www.bundesregierung.de)
Your country’s permanent mission to the United Nations (e.g. http://china-un.org)
Your country’s ministry of foreign affairs
Your country’s ministry of defense and security
Your national nuclear program website (if any)
UN Official Document System: http://documents.un.org
The IAEA website: http://www.iaea.org
UN wire: http://www.unwire.org
National Model UN: http://www.nmun.org
Center for Defense Information: http://www.cdi.org
Foreign Policy Association: http://www.fpa.org
The Online Intelligence Project: http://www.icg.org
United Nations System: http://www.unsystem.org
INFORMATION FOR DELEGATES
Please remember to submit the position paper (1 Word.doc page) before or on the assigned date.
The rules of procedure will be briefly explained before the First Committee Session.
Please find further information at http://www.johncabot.edu/.
We hope that this Study Guide will be useful to conduct your research.
See you in Rome!
All the best,
The John Cabot University Model United Nations Society