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The Treaty on the Non-Proliferation of Nuclear Weapons

Published online by Cambridge University Press:  28 March 2017

Edwin Brown Firmage
Edwin Brown Firmage*
Affiliation:
University of Utah College of Law
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Extract

On March 13, 1969, the United States Senate by a vote of 83 to 15 consented to the ratification of a treaty described as “the most important international agreement brought before the U. S. Senate since the North Atlantic Pact” and “the most important international agreement limiting nuclear arms since the nuclear age began.” Assuming a timely entry into force, the Treaty on the Non-Proliferation of Nuclear Weapons may delay incarnation of the specter which “haunted” John F. Kennedy:

I see the possibility in the 1970's of the President of the United States having to face a world in which 15 or 20 or 25 nations may have these [nuclear] weapons. I regard that as the greatest possible danger and hazard.

Type
Research Article
Information
American Journal of International Law , Volume 63 , Issue 4 , October 1969 , pp. 711 - 746
Copyright
Copyright © The American Society of International Law 1969

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References

1 Statement of Senator John Sparkman, Hearings on the Treaty on the Nonproliferation of Nuclear Weapons before the Senate Committee on Foreign Relations, 90th Cong., 2nd Sess. at 2 (1968).

2 Message from President Lyndon B. Johnson to the Senate on the Treaty on the Non-Proliferation of Nuclear Weapons, July 9, 1968; 62 A.J.I.L. 954 (1968).

3 “Text of President Kennedy's News Conference on Foreign & Domestic Affairs,” New York Times (Western ed.), p. 4, col. 7, March 22, 1963.

4 Hearings on the Arms Control and Disarmament Act Amendments before the House Committee on Foreign Affairs, 90th Cong., 2nd Sess. at 28 (1968).

5 Nuclear reactors are fueled with natural uranium. Plutonium, a major element iu nuclear weapons, is produced as a by-product of this process. See Speech by Under Secretary of State Nicholas Katzenbach, April 26, 1968, 1968 Proceedings, American Society of International Law 274.“By 1985 the world's peaceful nuclear power stations will probably be turning out enough by-product plutonium for the production of tens of nuclear bombs every day. This capability must not be allowed to result in the further spread of nuclear weapons. The consequences would be nuclear anarchy, and the energy designed to light the world could plunge it into darkness.” Message from President Lyndon B. Johnson, note 2 above.

6 Australia, Canada, Federal Republic of Germany, India, Italy, Japan and Sweden. Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 31.

7 Argentina, Austria, Belgium, Brazil, Chile, Czechoslovakia, Hungary, Israel, Netherlands, Pakistan, Poland, South Africa, Spain, Switzerland, United Arab Republic, and Yugoslavia. Ibid.For other projections on world megatonnage, numbers and names of nations potentially capable of joining the nuclear club in the next twenty years, see Kahn and Wiener, The Tear 2000 (1967); Sir John Cockcroft, “The Perils of Nuclear Proliferation,” and David Inglis, “The Outlook for Nuclear Explosives,” in Unless Peace Comes (N. Calder, ed., 1968).

8 See the comparative statistics on world military expenditures at p. 733 below.

9 United States Arms Control and Disarmament Agency, International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons 93-94 (1969) (hereinafter cited as International Negotiations).

10 Ibid.

11 The best analysis of early U. S. arms control negotiations is in Bechhoefer, PostwarNegotiations for Arms Control (1961). For an analysis of the rôle of arms control and disarmament in Soviet foreign policy, see Larson, Disarmament and Soviet Policy, 1964-1968 (1969), and Edwards, Arms Control in International Politics (1969). For an analysis of postwar attempts to curb the proliferation of nuclear weapons, see Firmage, “Anarchy or Order? The Nth Country Problem and the International Rule of Law,” 29 Missouri Law Rev. 138 (1964).

12 See Department of State, 1 Documents on Disarmament: 1945-1956 (Pub. No. 7008). The Baruch Plan: Statement by the United States Representative [Baruch] to the United Nations Atomic Energy Commission, June 14, 1956, pp. 7-16 (1960). For the best account of the origin of the Baruch Plan, see Department of State (Pub. No. 2702), The International Control of Atomic Energy: Growth of a Policy (1946). Also see Department of State (Pub. No. 3161), The International Control of Atomic Energy: Policy at the Crossroads (1948); (Pub. No. 2498), The Acheson-Lilienthal Report (1946).

13 Atomic Energy Act of 1946, 60 Stat. 755-775, 42 U.8.O.A. §§2011-2296.

14 Atomic Energy Act of 1954, as amended, 42 TJ.8.C. 2121; 72 Stat. 276.

15 Ibid,at §91(c), 42 U.S.C. §2121(c) (1964).

16 Department of State, Documents on Disarmament: 1957-1959, Proposals for Partial Measures of Disarmament 868-870.

17 Final Act of the Nine-Power Conference, London, Sept.-Oct., 1954: Protocol I II to the Treaty of Brussels creating the Western European Union. 49 A.J.I.L. Supp. 134 (1955).

18 U.N. General Assembly, 8th Sess., Official Records 443 (1953).

19 International Atomic Energy Agency Statute, 1956, 8 U. 8. Treaties 1093; T.I.A.S., No. 3873; 276 U.N. Treaty Series 3 (1956); 51 A.J.I.L. 466 (1957). For analyses of the Statute, See Bechhoefer and Stein, “Atoms for Peace: The New International Atomic Energy Agency,” 55 Mich. Law Rev., 747 (1957); Firmage, note 11 above; Stoessinger, “ T h e International Atomic Energy Agency: The First Phase,” 13 Int. Organization 394 (1959).

20 See Firmage, note 11 above, at 144-147.

21 See Address by the Polish Foreign Minister (Rapacki) to the General Assembly, Oct. 2, 1957, in Documents on Disarmament: 1957-1959, note 16 above, at 889; Note and Memorandum from the Polish Foreign Minister (Rapacki) to the American Ambassador (Beam), Feb. 14, 1958, Ibid,at 944; News Conference Remarks by the Polish Foreign Minister (Rapacki) Regarding an Atom-Free Zone in Central Europe, Nov. 4, 1058, ibid.,at 1217.

22 The Antarctic Treaty, Dec. 1, 1959, 12 U. S. Treaties (1961) 794; T.I.A.S., No. 4780; 402 TJ.N. Treaty Series 71 (1959); 54 A.J.I.L. 477 (1960).

23 UN. Doc. A/C.l/946 (1967). The United States and the United Kingdom signed Protocol II providing that both states would respect the treaty's aims not to use or to threaten to use nuclear weapons against the parties.

24 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, T.I.A.S., No. 6347 (1967); 61 A.J.I.L. 644 (1967). See Larson, note 11 above, at 145-147, for an analysis of Soviet strategy on the treaty.

25 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Underwater, Aug. 5, 1963, 14 TJ. 8. Treaties (1963) 1313; T.I.A.S., No. 5433; 480 U.N. Treaty Series 43 (1963); 57 A.J.I.L. 1026 (1963).

27 U.N. Doc. A/Res/1380 (XIV) (1959). 26 See note 16 above.

28 General Assembly Res. 1664 (XVI), U.N. General Assembly, 16th Seas., Official Records, Supp. 17, at 5, U.N. Doc. A/4980/Add. 1 (1961); Department of State, Documents on Disarmament: 1961, at 693.

29 U. S. Proposal Submitted to the Eighteen-Nation Disarmament Committee: Draft Treaty to Prevent the Spread of Nuclear Weapons, Aug. 17, 1965. International Negotiations, note 9 above.

30 U. S. Proposal Submitted to the Eighteen-Nation Disarmament Committee: Amendment to the U. S. Draft Treaty to Prevent the Spread of Nuclear Weapons, March 21, 1966, Hid.at 140.

31 State Department, Documents on Disarmament: 1965, Soviet Draft Treaty on the Nonproliferation of Nuclear Weapons, Sept. 24, 1965, at 443-446.

32 S. Res. 179, 89th Cong., 2d Sess., 112 Cong. Bee. 10802 (1966).

33 See note 14 above.

34 Department of State, Documents on Disarmament: 1967, at 338-341; 62 A.J.I.L. 308 (1968).

35 See note 1 above, at 6.

36 See Larson, note 11 above, at 150.

37 See note 29 above.

38 Ibid.

39 International Negotiations, note 9 above, at 70.

40 Ibid,at 57.

41 Ibid,at 71.

42 Ibid, at 29.

43 Ibid.

44 Revised Draft Treaty on the Nonproliferation of Nuclear Weapons, Jan. 18, 1968, ibid,at 150, 153.

45 Ibid,at 73.

46 Ibid.

47 Ibid,at 74.

48 Ibid.

49 Ibid,at 89.

50 Ibid,at 89-90.

51 Ibid,at 112.

52 Ibid,at 113; 62 A.J.I.L. 817 (1968).

53 International Negotiations, note 9 above, at 118.

54 Ibid,at 118-119.

55 The United States had previously agreed to accept IAEA safeguards upon “ a ll nuclear activities in the United States—excluding only those with direct national security significance.” Department of State, Documents on Disarmament: 1967, at 614- 615. The United Kingdom subsequently made a similar declaration. The Soviet Union did not.

56 See note 39 above, at 19, 119.

57 Ibid at 122-123.

58 Ibid,at 123.

59 Ibid. at 125. The Soviet Union, the United Kingdom, and the United States all supported the resolution; Albania, Cuba, Tanzania and Zambia voted against it. Brazil, Burma, France, India and Spain were among the 21 countries which abstained.

60 Ibid,at 127-128. Abstaining were Algeria, Brazil, France, India, and Pakistan.

61 Ibid,at 129.

62 Paragraphs one to three of the preamble express the importance of preventing the proliferation of nuclear weapons. Paragraphs four and five state the need of and confidence in the safeguards system of the International Atomic Energy Agency. Paragraphs six and seven declare the goal of sharing peaceful uses of nuclear energy and nuclear explosions for peaceful purposes. The need for further progress toward nuclear disarmament is emphasized in paragraphs eight and nine. The last paragraph of the preamble reaffirms the principles of the United Nations Charter regarding the use of force in international relations:“Preamble:“The States concluding this Treaty, hereinafter referred to as the ‘Parties to the Treaty';“Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples,“Believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war,“ In conformity with resolutions of the United Nations General Assembly calling for the conclusion of an agreement on the prevention of wider dissemination of nuclear weapons,“Undertaking to cooperate in facilitating the application of International Atomic Energy Agency safeguards on peaceful nuclear activities,“Expressing their support for research, development and other efforts to further the application, within the framework of the International Atomic Energy Agency safeguards system, of the principle of safeguarding effectively the flow of source and special fissionable materials by use of instruments and other techniques at certain strategic points.“Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear-weapon States,“Convinced that, in furtherance of this principle, all Parties to the Treaty are entitled to participate in the fullest possible exchange of scientific information for, and to contribute alone or in cooperation with other States to, the further development of the applications of atomic energy for peaceful purposes,“Declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament,“Urging the cooperation of all States in the attainment of this objective,“Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapon tests in the atmosphere in outer space and under water in its Preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end,“Desiring to further the easing of international tension and the strengthening of trust between States in order to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a treaty on general and complete disarmament under strict and effective international control,“Recalling that, in accordance with the Charter of the United Nations, States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, and that the establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world's human and economic resources,‘ ‘ Have agreed as follows:''

63 “Article I“Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.”“Article II“Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.“

64 “Nuclear-weapon states” are denned as those states which have manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.

65 Note, ‘ ‘ The Nonproliferation Treaty and Peaceful Applications of Nuclear Explosions,” 20 Stanford Law Eev. 1030, 1035-1037 (1968).

66 A nuclear-weapon state would be prohibited by Art. I from transferring nuclear explosive devices to the IAEA, since the language of Art. I, unlike Art. II, precludes transfer “ t o any recipient whatsoever,” without regard for a status of statehood or treaty membership.

67 Willrich, ‘ ‘ The Treaty on Non-Proliferation of Nuclear Weapons: Nuclear Technology Confronts World Politics,” 77 Yale Law J. 1447, 1465 (1968). See also Willrich, Non-Proliferation Treaty: Framework for Nuclear Arms Control (1969).

68 Secretary Busk, testifying before the Senate Foreign Relations Committee: ‘ ‘ The treaty deals only with what is prohibited, not with what is permitted. It prohibits transfer to any recipient whatsoever of nuclear weapons or control over them, meaning bombs and warheads. It also prohibits the transfer of other nuclear explosive devices, because a nuclear explosive device intended for peaceful purposes can be used as a weapon or can be easily adapted for such use. It does not deal with, and therefore does not prohibit, transfer of nuclear delivery vehicles or delivery systems, or control over them to any recipient, so long as such transfer does not involve bombs or warheads. It does not deal with allied consultations and planning on nuclear defense so long as no transfer 61nuclear weapons or control over them results. It does not deal with arrangements for deployment of nuclear weapons within allied territory as these do not involve any transfer of nuclear weapons or control over them unless and until a decision were made to go to war, at which time the treaty would no longer be controlling. And, it does not deal with the problem of European unity, and would not bar succession by a new federated European state to the nuclear status of one of its former components. A new federated European state would have to control all of its external security functions, including defense and all foreign policy matters relating to external security, but would not have to be so centralized as to assume all governmental functions.While not dealing with succession by such a federated state, the treaty would bar transfer of nuclear weapons (including ownership) or control over them to any recipient, including a multilateral entity.” See Hearings on the Treaty on the non-proliferation of Nuclear Weapons, note 1 above, at 5-6.

69 Ibid.

70 Ibid.

71 “Article III“ 1 . Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency's safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.“ 2. Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclearweapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article.‘ ‘ 3. The safeguards required by this article shall be implemented in a manner designed to comply with Article IV of this Treaty, and to avoid hampering the economic or technological development of the Parties or international cooperation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes in accordance with the provisions of this article and the principle of safeguarding set forth in the Preamble of the Treaty.“ 4 . Non-nuclear-weapon States Party to the Treaty shall conclude agreements with the International Atomic Energy Agency to meet the requirements of this article either individually or together with other States in accordance with the Statute of the International Atomic Energy Agency. Negotiation of such agreements shall commence within 180 days from the original entry into force of this Treaty. For States depositing their instruments of ratification or accession after the 180-day period, negotiation of such agreements shall commence not later than the date of such deposit. Such agreements shall enter into force not later than eighteen months after the date of initiation of negotiations.“

72 See Willrich, 77 Tale Law J., note 67 above, at 1447-1480.

73 International Negotiations, note 9 above, at 101.

74 Department of State, Documents on Disarmament: 1967, at 614-615; for a comment on this matter, see Hearings on the Treaty on the Non-proliferation of Nuclear Weapons, note 1 above, at 11.

75 Department of State, Documents on Disarmament: 1967, at 616.

76 See Firmage, note 11 above, at 152-154.

77 Ibid.

78 Statement by the Director-General, IAEA, Sept. 26, 1967, to the General Conference.

79 For the Safeguards Document, see IAEA, GC(IX)/294 (1965). For an analysis of the background and content of both the IAEA and United States safeguards systems, see the statement of Dr. Glenn T. Seaborg, Chairman of the Atomic Energy Commission, in the Hearings on the Treaty on the Non-proliferation of Nuclear Weapons, note 1 above, at 97, 99-105. See also “Analysis of IAEA Safeguards System,” ibid,at 277.

80 Ibid.

81 IAEA, GC(IX)/294 (1965), Annex, par. 57.

82 See analysis above, at p. 717. See also the remarks of William Foster, Director, U. S. Arms Control and Disarmament Agency and our representative at ENDC, in International Negotiation, note 9 above, at 70-73, 81-82, 101-103.

83 Statement of ACDA Deputy Director, Adrian Fisher, Jan. 18, 1968, ENDC/PV.357, at 14, 17. See also Mr. Fisher's testimony, Hearings on the Arms Control and Disarmament Act Amendments, note 4 above, at 61-62. In addition, see “AEC Comparison of Euratom safeguard system and the IAEA System,” Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 266.

84 “Article IV:“ 1 . Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.“ 2 . All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world”

85 Department of State, Documents on Disarmament: 1967, at 394-395.

86 International Negotiations, note 9 above, at 83.

87 For a short description of present and possible future peaceful uses of nuclear energy and nuclear explosions, see the speech by former Secretary of State Dean Busk, Fordham University Club of Washington, D. C, May 2, 1968, “Gaining the Full Measure of the Benefits of the Atom,” reprinted in 58 Dept. of State Bulletin 632 (1968).There has not been the development of peaceful uses of nuclear energy within the underdeveloped areas that such nations expected after President Eisenhower's “Atoms for Peace” speech. The sound concept of peaceful applications of nuclear energy was oversold to the extent that developing nations thought that they could be brought into the industrial 20th century without going through the stages of industrialization that Western nations have experienced. The realization that a significant industrial base must first be had before meaningful uses of atomic energy could be enjoyed has produced understandable disillusion and hostility. However, genuine attempts to aid the developing nations in their application of nuclear energy for peaceful purposes are being made. From 1958 to 1963 the ratio of research contract funds granted by the IAEA to institutes in developing countries rose from 23% to 65%. In 1966, 75% of all research contract funds of the Agency were awarded for research in developing countries. IAEA, GC(XI)/362 (1967) Annex B, par. 19.

88 “Article V“Each Party to the Treaty undertakes to take appropriate measures to ensure that, in accordance with this Treaty, under appropriate international observation and through appropriate international procedures, potential benefits from any peaceful applications of nuclear explosions will be made available to non-nuclear-weapon States Party to the Treaty on a non-discriminatory basis and that the charge to such Parties for the explosive devices used will be as low as possible and exclude any charge for research and development. Non-nuclear-weapon States Party to the Treaty shall be able to obtain such benefits, pursuant to a special international agreement or agreements, through an appropriate international body with adequate representation of non-nuclearweapon States. Negotiations on this subject shall commence as soon as possible after the Treaty enters into force. Non-nuclear-weapon States Party to the Treaty so desiring may also obtain such benefits pursuant to bilateral agreements.“

89 International Negotiations, note 9 above, at 63.

90 Ibid,at 58.

91 Ibid,at 63-65.

92 Ibid,at 67.

93 Department of State, Documents on Disarmament: 1967, at 172-176.

94 Ibid,at 338-341.

95 lbid,at 369-370, 546-547, 436-437.

96 See statement of ACDA Director Foster, ENDC/FV.330, p. 5.

97 Department of State, Documents on Disarmament: 1967, Statement of Ambassador Roshchin, 518.

98 Ibid,at 395-401.

99 Ibid. at 557-558.

100 See International Negotiations, note 9 above, at 150.

101 The U. 8. negotiating team was motivated by an understandable desire to avoid any specific and open-ended commitment to provide nuclear explosive services upon demand and the technological necessity of forbidding any nuclear explosive device to non-nuclear-weapon states. The position of such states as India and Brazil against any provision prohibiting peaceful nuclear explosive devices is equally understandable. Both states continually maintained that such a provision would render non-nuclear weapon states perpetually dependent upon nuclear-weapon states for the performance of nuclear explosions for peaceful purposes. The extent of this dilemma can be seen by comparing the statements made by the representatives of Brazil and India, which continued unchanged by the decision to make provision for such services a part of the treaty (see International Negotiations, note 9 above, at 104), with the following statement from the Senate Foreign Relations Committee Report recommending Senate consent to ratification:“The committee wishes to record its concern at the open ended commitment implied in Article V. We suggest that obligations under this provision should be undertaken only after the fullest consultation with appropriate congressional committees and should be limited to projects within the capacity of the United States consistent with its interests. Moreover, the committee specifically reject any suggestion that article V constitutes an across-the-board pledge by the United States to support foreign and domestic commercial research and development projects. As in the case of nuclear services projects, research and development projects should be undertaken only after the public interest has been carefully defined by the appropriate congressional committees.” Treaty on the Non-Proliferation of Nuclear Weapons., Senate Rep. No. 9, 90th Cong., 2d Sess. 14 (1968).

102 ENDC/PV.358, at 19-20.

103 ENDC/PV.364, at 5-7.

104 ENDC/PV.367, at 12.

105 See International Negotiations, note 9 above, at 120, 122.

106 Ibid.at 123-124.

107 See note 88 above. The general outlines of TJ. 8. planning for providing such services were presented by Dr. Glenn T. Seaborg, Chairman of the Atomic Energy Commission, before the Senate Foreign Relations Committee:“When particular applications are found to be feasible, we plan to make a nuclear explosion service available on a commercial basis to domestic users and to nonnuclear weapon parties to the NPT. Such a service would include the fabrication of the nuclear explosive device, its transportation from the assembly plant to the project site, its emplacement at the prepared site, and its arming and firing. The service would also include appropriate technical reviews of the proposed detonation, such as those relating to health and safety. The users of the service, whether it is furnished domestically or pursuant to article V, will pay for the service in accordance with rates established for its various elements… . the charges for the nuclear explosive devices used in furnishing the service will not include the cost of their research and development.“ …. The objectives of the treaty could not permit any observation contemplated by the treaty to include access by the observers to the design or internal operation of nuclear explosive devices. Consequently, there will be no transfer of nuclear explosive devices or control over them; nor will the service, in any way, assist, encourage, or induce any nonnuclear weapon state to manufacture or to otherwise acquire nuclear explosive devices.” Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 104.

108 Speech by Under Secretary of State Nicholas Katzenbach, note 5 above: “Even an optimistic assessment of its potential uses would not justify the enormous expenditure of time, money and scientific and technical talent required to develop nuclear devices for this purpose alone.'’ He later spoke of the “economic absurdity of a country's developing nuclear explosives solely for peaceful purposes … . “

109 Koop, “Plowshare and the Nonproliferation Treaty,” 12 Orbis 793, 809 (1968).

110 See note 23 above.

111 Art. 18 of LANFZ states that: “Contracting parties may carry out explosions of nuclear devices for peaceful purposes—including explosions which involve devices similar to those used in nuclear weapons—or collaborate with third parties for the same purpose.“

112 For analyses of Project Plowshare, see Hearing on the Peaceful Application of Nuclear Explosives—Plowshare Before the Joint Committee on Atomic Energy, 89 th Cong., 1st Sess. (1965); Inglis and Sandler, A Special Report on Plowshare, Prospects and Problems: The Non military Uses of Nuclear Explosives, Bulletin of Atomic Scientists 46-53 (Dec, 1967); Koop, note 109 above; Van Cleave, “The Nonproliferation Treaty and Fission-Free Explosive Research,” 11 Orbis 1055 (1968); Note, “The Nonproliferation Treaty and Peaceful Applications of Nuclear Explosions,” note 65 above.

113 This would necessitate an amendment to the Partial Nuclear Test Ban Treaty. Dr. Seaborg stated that provisions of the Partial Nuclear Test Ban Treaty would permit excavation-type projects but trans-isthmian canal projects would necessitate treaty amendment. See note 107 above, at 105.

114 Koop, note 109 above, at 801.

115 Article VI“Each 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.“

116 Public Papers of the Presidents of the United States— John E. Kennedy, 1961- 62, Address Before the United Nations General Assembly, Sept. 25, 1961, at 620.

117 United States Arms Control and Disarmament Agency, World Military Expenditures, Research Report 68-52, at 1 (1968).

118 Ibid.

119 Ibid,at 2.

120 Ibid.

121 Ibid.

122 Ibid.

123 See the statements of Lord Chalfont of the United Kingdom and General Burns of Canada at the ENDC, ENDC/PV, 299, at 7-8, 16.

124 International Negotiations, note 9 above, at 74-75.

125 Ibid.

126 Ibid.at 75-76, 106.

127 See the identical drafts of the United States and the Soviet Union, ENDC/192 and ENDC/193. International Negotiations, note 9 above, at 146. See also 62 A.J.I.L. 308 (1968).

128 International Negotiations, note 9 above, at 86.

129 Department of State, Documents on Disarmament: 1967, at 395-401.

130 17 Congressional Quarterly 303 (Feb. 28, 1969).

131 International Negotiations, note 9 above, at 150, 153.

132 Ibid,at 106.

133 Ibid,at 107.

134 Ibid,at 155-158.

135 17 Congressional Quarterly (No. 9) at 303 (Feb. 28, 1969).

136 James Reston, New York Times, p. 40 M, cols. 5-8 (March 19, 1969).

137 As quoted in Acheson, Sketches From Life of Men I Have Known 105 (1961).

138 “Historically, the foreign affairs of Russia have developed along lines entirely different from those of the United States. Our most important foreign relations, historically speaking, have been along the lines of peaceable overseas trade. These have set the pattern of our thinking on foreign affairs. The Russians, throughout their history, have dealt principally with fierce hostile neighbors. Lacking natural geographical barriers, they have had to develop, in order to deal with these neighbors, a peculiar technique (now become traditional and almost automatic) of elastic advance and retreat, of defense in depth, of secretiveness, of wariness, of deceit. Their history has known many armistices between hostile forces; but it has never known an example of the permanent peaceful coexistence of two neighboring states with established borders accepted without question by both peoples. The Russians therefore have no conception of permanent friendly relations between states. For them, all foreigners are potential enemies. The technique of Russian diplomacy, like that of the Oriental in general, is concentrated on impressing an adversary with the terrifying strength of Russian power, while keeping him uncertain and confused as to the exact channels and means of its application and thus inducing him to treat all Russian wishes and views with particular respect and consideration. It has nothing to do with the cultivation of friendly relations as we conceive them.” Q.Kennan, Memoirs: 1925-1950 at 560 (1967).

139 See note 137 above, at 104.

140 Cf.Department of State, Documents on Disarmament: 1967, Statement of ACDA Director Foster before the ENDC, Sept. 19, 1967, in defense of the Johnson Administration decision to deploy a limited system, at 402.

141 “Article VII “Nothing in this Treaty affects the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.“

142 Department of State, Documents on Disarmament: 1967, at 395-401.

143 Ibid.at 515-521.

144 Ibid.at 513-515.

145 “Article VIII“ 1 . Any Party to the Treaty may propose amendments to this Treaty. The text of any proposed amendment shall be submitted to the Depositary Governments which shall circulate it to all Parties to the Treaty. Thereupon, if requested to do so by onethird or more of the Parties to the Treaty, the Depositary Governments shall convene a conference, to which they shall invite all the Parties to the Treaty, to consider such an amendment.“2.Any amendment to this Treaty must be approved by a majority of the votes of all the Parties to the Treaty, including the votes of all nuclear-weapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency.The amendment shall enter into force for each Party that deposits its instrument of ratification of the amendment upon the deposit of such instruments of ratification by a majority of all the Parties, including the instruments of ratification of all nuclearweapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. Thereafter, it shall enter into force for any other Party upon the deposit of its instrument of ratification of the amendment.“ 3 . Five years after the entry into force of this Treaty, a conference of Parties to the Treaty shall be held in Geneva, Switzerland in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realized. At intervals of five years thereafter, a majority of the Parties to the Treaty may obtain, by submitting a proposal to this effect to the Depositary Governments, the convening of further conferences with the same objective of reviewing the operation of the Treaty.“

146 Department of State, Documents on Disarmament: 1967, at 338-341.

147 Ibid,at 525-526.

148 Ibid,at 557-558.

149 ENDC/PV.345 at 13.

150 “Article IX“ 1 . This Treaty shall be open to all States for signature. Any State which does not sign the Treaty before its entry into force in accordance with paragraph 3 of this article may accede to it at any time.“2.This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics, which are hereby designated the Depositary Governments.“ 3 . This Treaty shall enter into force after its ratification by the States, the Governments of which are designated Depositaries of the Treaty, and forty other States signatory to this Treaty and the deposit of their instruments of ratification. 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.“4, For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession.“ 5 . The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or of accession, the date of the entry into force of this Treaty, and the date of receipt of any requests for convening a conference or other notices.“6. This Treaty shall be registered by the Depositary Governments pursuant to article 102 of the Charter of the United Nations.''

151 “ArticleX “ 1 . Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.“ 2 . Twenty-five years after the entry into force of the Treaty, a conference shall be convened to decide whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty.“

152 International Negotiations, note 9 above, at 90-91, 111.

153 Ibid,at 111.

154 See note 146 above.

155 Department of State, Documents on Disarmament: 1967, a t 527-528, 572-574.

156 International Negotiations, note 9 above, at 110.

157 “ Article XI“ This Treaty, the English, Russian, Trench, Spanish and Chinese texts of which are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Treaty shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.“ In witness whereof the undersigned, duly authorized, have signed this Treaty.“Done in triplicate, at the cities of Washington, London and Moscow, this first day of July one thousand nine hundred sixty-eight.“

158 International Negotiations, note 9 above, at 112.

159 Ibid.

160 Ibid.

161 For the text of the March 7, 1968, draft resolution, see 7 International Legal Materials 570 (1968).

162 Ibid.

163 For the texts of the security declarations of the Soviet Union, the United Kingdom and the United States, see Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 43.

164 “Resolution or Security Assurances Adopted by the United Nations Security Council, June 19, 1968 “The Security Council “Noting with appreciation the desire of a large number of states to subscribe to the treaty on the non-proliferation of nuclear weapons, and thereby to undertake not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices. “Taking into consideration the concern of certain of these states that, in conjunction with their adherence to the treaty on the non-proliferation of nuclear weapons, appropriate measures be undertaken to safeguard their security, “Bearing in mind that any aggression accompanied by the use of nuclear weapons would endanger the peace and security of all states, “ 1 . Recognizes that aggression with nuclear weapons or the threat of such aggression against a non-nuclear-weapon state would create a situation in which the Security Council, and above all its nuclear-weapon state permanent members, would have to act immediately in accordance with their obligations under the United Nations Charter; “ 2 . Welcomes the intention expressed by certain states that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon state party to the treaty on the non-proliferation of nuclear weapons that is a victim of an act or an object of a threat of aggression in which nuclear weapons are used; “ 3 . Reaffirms in particular the inherent right, recognized under Article 51 of the Charter, of individual and collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.“

165 Also abstaining were Algeria, Brazil, India, and Pakistan.

166 Kahn and Dibble, ‘ ‘ Criteria for Long-Range Nuclear Control Policies,'’ 55 Calif. Law Rev. 473, 478 (1967).

167 See Senate Rep. No. 9, note 101 above, at 10.

168 See the exchange between Senator Margaret Chase Smith and General Earle G. Wheeler, Chairman of the Joint Chiefs of Staff, in Hearings on Military Implications of the Treaty on the Nonproliferation of Nuclear Weapons before the Senate Committee on Armed Services, 91st Cong., 1st Sess., at 22 (1969). General Wheeler assured Senator Smith that the treaty in no way increased U. S. security commitments. Paul Nitze, former Deputy Secretary of Defense, testified before the Senate Foreign Relations Committee, Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 56, that the Defense Department worked closely with the Department of State and the ACDA on the wording of the United States declaration and the U.N. resolution. He agreed that the statements do not contain any increase in our security commitments. Secretary of State Rusk and ACDA Director William Foster testified that the Security Council resolution and the U. S. declaration did not commit the United States to any additional responsibilities other than those already assumed under the U.N. Charter, with the veto power remaining unaffected. See the questions of Senators Sparkman, Pastore, Bennett and Case, note 1 above, at 15-16, 34. Senator Case asked Secretary Rusk whether the treaty or the declaration and resolution in any way increased Presidential power to commit United States forces in the event of nuclear aggression or the threat of nuclear aggression. Secretary Busk responded that neither were formal treaty commitments or Presidential prerogatives altered by the treaty, the Security Council resolution, or the U. S. declaration. Ibid.40-41.

169 “Reflections on the Quarter,” 11 Orbis 963, 967 (1968).

170 See note 1 above, at 129-139.

171 Ibid,at 138.

172 See note 169 above, at 967.

173 See Larson, note 11 above, at 148: Maggs, “The Soviet Viewpoint on Nuclear Weapons in International Law,” 29 Law and Contemporary Problems 956, 964-968 (1964).

174 See notes 13 and 14 above.

175 The following questions were asked by our NATO allies in response to Arts. I and II. The official United States response follows each question.Q.l “What may and what may not be transferred under the draft treaty?”A. “The treaty deals only with what is prohibited, not with what is permitted.“ It prohibits transfer to any recipient whatsoever of ‘nuclear weapons’ or control over them, meaning bombs and warheads. It also prohibits the transfer of other nuclear explosive devices because a nuclear explosive device intended for peaceful purposes can be used as a weapon or can be easily adapted for such use.“ It does not deal with, and therefore does not prohibit, transfer of nuclear delivery vehicles or delivery systems, or control over them to any recipient, so long as such transfer does not involve bombs or warheads.”Q.2 “Does the draft treaty prohibit consultations and planning on nuclear defense among NATO members?”A. “ It does not deal with allied consultations and planning on nuclear defense so long as no transfer of nuclear weapons or control over them results.”Q.3 “Does the draft treaty prohibit arrangements for the deployment of nuclear weapons owned and controlled by the United States within the territory of nonnuclear NATO members?”A. “ It does not deal with arrangements for deployment of nuclear weapons within allied territory as these do not involve any transfer of nuclear weapons or control over them unless and until a decision were made to go to war, at which time the treaty would no longer be controlling.” International Negotiations, note 9 above, at 180.

176 Ibid.See as well the comments of Secretary Busk, note 68 above.

177 Deputy Secretary of Defense Paul Nitze, appearing before the Senate Foreign Relations Committee, quoted Secretary Clark Clifford's statement to the NATO Nuclear Planning Group ministerial meeting at The Hague in April, 1968: “The U. S. Government holds the view that the entry into force of the Nonproliferation Treaty will not interfere with the work of the Nuclear Planning Group. The U. S. Government intends to continue to pursue actively the work of the Nuclear Planning Group and to seek to find solutions satisfactory to its non-nuclear partners in NATO. It also is the view of the U. S. Government that the Nonproliferation Treaty will not hinder the further development of nuclear defense arrangements within the alliance compatible with articles I and I I of the Nonproliferation Treaty.” Secretary Nitze added: “We have also assured our NATO and other allies that the treaty would not interfere with any existing nuclear arrangements.” Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 56.

178 See notes 68 and 175 above.

179 Bunn, “The Nuclear Nonproliferation Treaty,” 1968 Wis. Law Eev. 766, 778.

180 Secretary of State Busk testified before the Senate Foreign Relations Committee that the treaty did not affect the question of European unity; that it “would not bar succession by a new federated European state to the nuclear status of one of its former components… . While not dealing with succession by such a federated state, the treaty would bar transfer of nuclear weapons (including ownership) or control over them to any recipient, including a multilateral entity.” Hearings on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 5-6.

181 See note 17 above.

182 See discussion at p. 718 above.

183 See Bechhoefer, Postwar Negotiations for Arms Control (1961).

184 Note 168 above, at 14-15. See also General Wheeler's testimony in the Hearing on the Treaty on the Nonproliferation of Nuclear Weapons, note 1 above, at 12. The JCS had a liaison officer at the planning sessions, White House meetings, the meetings of the Committee of Principals, and at all ENDC sessions. Ibid,at 57; note 167 above, at 14-15.

185 See notes 13 and 14 above

186 See note 2 above.