"Good Faith and Multilateral Negotiations"
　 John Burroughs　
Executive Director, Lawyers Committee on Nuclear Policy

The 17th century Dutch international lawyer, Hugo Grotius, is often called the father of modern international law. In 1625, he wrote:

good faith should be preserved in order that the hope of peace may not be done away with. Rightly Cicero says that 'it is an impious act to destroy the good faith which holds life together.' To use Seneca's phrase, it is 'the most exalted good of the human heart.'

In our time, the International Court of Justice has offered some guidance concerning good faith. Ten years ago, in its advisory opinion on nuclear weapons, the Court interpreted Article VI and unanimously held that "there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." The Court also connected good faith to the necessity of developing trust and confidence and to greatly increased international cooperation in many fields.

In other cases, the Court has said that international law with respect to good faith negotiation requires that you enter into the negotiations, that you consider proposals of the other side, and that you re-examine your own position, all in order to reach the objective of the negotiations.

• 　correspondence between word and deed
• 　no secret reservations
• 　openness and transparency, with complete disclosure of material facts
• 　refraining from taking steps (like developing new nuclear weapons) that undermine the goal
• 　 a continuity of efforts
• 　a reasonable timespan for achievement of the goal

Indeed, in the decade since the Court's opinion and the negotiation of the Comprehensive Test Ban Treaty (CTBT) in 1996, little has been done to implement the disarmament obligation. Today, no multilateral or bilateral negotiations on any aspect of nuclear disarmament are underway.

But we are here to look forward, not backwards, and I now want to talk about some of the next steps. I will refer to the priority measures identified by the Article VI Forum of the Middle Powers Initiative. The Middle Powers Initiative is an international civil society coalition working with middle power countries - like Canada, Germany, Sweden, South Africa, Japan - to pressure the nuclear weapon countries to start moving on disarmament. The priority measures are a fissile materials treaty, verified reductions, dealerting, the test ban treaty, and guarantees of non-use of nuclear weapons against non-nuclear states. They are also recommended in the Blix report.

1) Fissile Materials Cut-off Treaty

An FMCT would permanently end production of fissile materials, primarily separated plutonium and highly enriched uranium, for use in weapons. It would affect most directly the countries possessing nuclear weapons. Other states, like Japan, already are subject to a verified ban on diverting materials to weapons. Achievement of an FMCT would restrain arms racing involving India, China, and Pakistan, cap Israel's arsenal, and establish ceilings on other arsenals as well. A verified FMCT also would help build a stable framework for reduction and elimination of warheads and fissile material stocks; help prevent acquisition of fissile materials by terrorists; and serve as one of the basic pillars of a nuclear weapons-free world.

FMCT negotiations remain stalemated in the Conference on Disarmament in Geneva. This is primarily due to U.S. refusal of linkages to other priority topics of nuclear disarmament and prevention of an arms race in outer space. Last year Mexico and five other countries proposed that the UN General Assembly bypass the Conference on Disarmament and establish ad hoc committees. This year they are not pushing this approach, but a few days ago Mexico said in the General Assembly that it will revisit the proposal next year if necessary. For now, governments appear to hope that a way will be found to start negotiations on an FMCT. Netherlands said that the North Korean nuclear test should serve as a catalytic event causing governments to break through the stalemate.

One major problem is that the United States now opposes including verification provisions in an FMCT. In the U.S. view they would not provide high confidence in compliance. However, a verification system could initially focus on declared uranium enrichment and plutonium separation facilities in the weapon possessing states. They could be monitored just as the same kinds of facilities are monitored through IAEA safeguards in non-weapon countries Brazil, Germany, the Netherlands, and Japan. Later stages of verification could focus on the more difficult task of confirming the absence of clandestine activities.

Another area of controversy is how to handle existing large military stocks of fissile materials, including the materials in warheads. One approach would be to provide that as reductions proceed military materials declared "excess" would be subject to a verified ban on weapons use.

A third controversial area is emphasized by civil society. It concerns how to handle the large stocks of fissile materials designated for civil use in nuclear reactors but in fact also usable in weapons. This is particularly relevant to Japan, which has very large stocks of separated plutonium. Governments so far have been resistant to including this topic in the scope of negotiations.

Japan generally has taken a progressive position on FMCT issues - except Japan is adamant that the FMCT should not deal with reduction of non-military stocks.

From a civil society perspective, the FMCT should not be viewed in isolation. Due to the enormity of the risks posed by the nuclear fuel cycle, we should support renewable energy sources and energy conservation, and the establishment of an international sustainable energy agency.

2) Verification of reduction and elimination of nuclear arsenals

President Reagan repeatedly invoked the Russian dictum, "trust but verify." It is essential to bring the principle of verification back to center stage. The 2002 Strategic Offensive Reductions Treaty requires Russia and the United States each to deploy no more than 2200 strategic, that is, long-range, warheads by 2012. But the treaty makes no provision for verification of reductions or dismantling of warheads and delivery systems. A high priority therefore is to press Russia and the United States to agree on means to verify and make irreversible the reductions. The Blix Commission recommends negotiation of a new treaty that would further cut strategic forces and also provide for verified dismantlement of warheads withdrawn under the 2002 treaty.

If the world is to have confidence that a future nuclear weapons-free world is really weapons-free, verification and transparency measures need to be implemented beginning now. That is because it will be challenging to confirm that there are no hidden warheads, stocks of fissile materials, or capabilities. As a first step, all states possessing nuclear weapons should declare the amounts of fissile materials contained in military stocks and warheads.

3) Reduction of the operational status of nuclear forces

The United States is now estimated to have more than 1600 warheads ready for delivery within minutes of an order to do so, and Russia more than 1000 warheads similarly ready for launch. It should be an absolute scandal that, every moment of every day, the two countries remain locked in a Cold War-style nuclear standoff. The standoff can be defused through separation of warheads from delivery systems and other measures that lengthen the time required for a nuclear launch, from days to weeks to months. De-alerting would help reduce risks associated with mistakes, coups, attacks on nuclear weapons facilities, false warnings, unauthorized launches, and hacking into command and control systems.

4) Comprehensive Nuclear-Test-Ban Treaty

135 states have ratified the CTBT. However, ten of the 44 states whose signature and ratification is required for entry into force have yet to do so. Non-ratifying states include the United States, China, and Israel. Other weapon possessing states, India, Pakistan, and the DPRK have not even taken the first step of signing it. The good news is that the International Monitoring System is already being operated. It successfully detected the North Korean test. The CTBT remains key to progress. It would help to check the spread of nuclear arms, constrain refinement of advanced arsenals, and protect the environment. It would be an indispensable part of the architecture of a nuclear weapons-free world.

5) Assurances of non-use of nuclear weapons against non-weapon states

Particularly in France and the United States, the last decade has seen development of doctrine and technical preparation for nuclear strikes against non-nuclear weapon states. That trend gives a special urgency to the long-standing demand of non-nuclear weapon states for an agreement barring nuclear use against them. It's time to meet that demand, and for nuclear-weapon possessing states to go further and end their reliance on nuclear weapons as central instruments of military and foreign policy.

Conclusion

The priority measures I have talked about are valuable in and of themselves. They decrease risks of use of nuclear weapons. They diminish the access of terrorists to catastrophic weapons and materials to build them. They raise barriers to acquisition of nuclear weapons by additional states. They generate support for strengthening the non-proliferation regime. But they must be seen within the broader context of working towards elimination of nuclear forces. If states possessing nuclear weapons cannot foresee the end of the process, they will be reluctant to reduce their flexibility.

The measures of course are not sufficient. Civil society must continue to demand negotiation - in good faith - of the overall framework for disarmament. I'll let the Blix Commission have the last word on that. The Commission says: "A nuclear disarmament treaty is achievable and can be reached through careful, sensible and practical measures."