The Yale Law Journal Volume 77, Number 8, July 1968 The Treaty on Non-Proliferation of Nuclear Weapons: Nuclear Technology Confronts World Politics Mason Willricht I ask you to stop and think for a moment what it would mean to have nuclear weapons in so many hands, in the hands of countries large and small, stable and unstable, responsible and irresponsible, scattered throughout the world.1 President John F. Kennedy From the dawn of the nuclear era, the problem of nuclear weapons proliferation has confronted the nations of the world. Since 1945, despite continuing efforts to prevent further proliferation, there has been a five-fold increase in the number of nations having nuclear weapons of their own. At last, after long and arduous negotiations, the United States and the Soviet Union have reached agreement on a "Treaty on the Non-Proliferation of Nuclear Weapons." 2 This Treaty represents "the maximum area of agreement now obtainable."3 It has t Professor of Law and Director, Center for the Stud), of Science, Technology and Public Policy, University of Virginia; formerly Assistant General Counsel. United States Arms Control and Disarmament Agency, and member, United States Delegation to the Eighteen Nation Disarmament Committee. B.A. 1954, Yale University; J.D. 1960, Uni- versity of California (Berkeley). The writer wishes to acknowledge the benefits he has received from discussions with members of a panel on Nuclear Energy and World Order-sponsored by the American Society of International Law-which he served as rapporteur. 1. A Step Toward Peace: Report to the People on the Nuclear Test Ban Treaty, Docu ENTF~rsON DiSAR.NMiA.3!.N'r, 1963, at 250 (U.S. Arms Control & Disarmament Agency Pub. No. 24, 1964). 2. The complete Treaty did not emerge until June 10, 1968. U.N. General Assembly, A/RES/2373(xxii), Annex, U.N. Doc. A/7Ol6IAdd.l, Annex, June 10, 1968. 3. Statement of United States Representative to the Eighteen Nation Disarmament Committee (ENDC). Eighteen Nation Disarmament Conference Proe.s Verbale 378 (prov.), at 23 [hereinafter cited as ENDC/PV]. 1447 The Yale Law Journal Vol. 77: 1447, 1968 been widely discussed in the Eighteen Nation Disarmament Committee in Geneva,4 the NATO Council in Brussels,5 and the United Nations Agreement was first reached between the United States and the Soviet Union on a draft Treaty on August 24, 1967, at the Eighteen Nation Disarmament Committee. The draft was complete in all major respects except for Article III, dealing with safeguards on peaceful nuclear activities. The Soviet Union insisted at that time, perhaps in a pcculiar application of a principal of separate and equal, on tabling identical drafts rather than one agreed draft. For the treaty draft of August 24, 1967, see DOCUMENTS ON DISARMAMENT, 1967, at 338 (U.. Arms Control & Disarmament Agency Pub. No. 46, 1968) [hereinafter cited as DOCUME'NTS ON DISARMAMENT, 1967]. Speeches by United States and Soviet Union Representatives to the ENDC at the time of tabling are reprinted in id. 342, 347. A second set of identical drafts was tabled by the United States and tie Soviet Union at the ENDC on January 18, 1968. For text see ENDC/I92fRev.1. For the United States and Soviet Union tabling speeches, see ENDC/PV.357. The January 18, 1968, draft included Article III and also incorporated as amendments certain suggestions of other delegations to the ENDC made during intervening discussion of the August 24, 1967. draft. A third agreed draft was presented by the United States and the Soviet Union to the ENDC on March 11, 1968, which incorporated certain minor changes in light of discussions since the second draft had been tabled. ENDC/225, Annex A. For the United States and Soviet Union tabling speeches, see ENDCIPV.376. Article IX, paragraph 2, in which the names of Depositary Governments were to be specified, was still blank. Previously, on March 7, 1968, the United States, the Soviet Union, and the United Kingdom had pre. sented to the ENDC a draft resolution of the United Nations Security Council on security assurances to non-nuclear-weapon states. ENDC/225, Annex B. For tabling speeches of the United States, the Soviet Union, and the United Kingdom, see ENDC/PV.375. The March 11, 1968, draft Treaty and March 7, 1968, draft Security Council resolution were submitted by the ENDC in its report to the United Nations General Assembly on March 14, 1968, and, thereafter, were discussed primarily in the First Committee (Political and Security) of the resumed 22d Session of the General Assembly, which convened on April 26, 1968. In light of these discussions, on May 31, 1968, certain changes were agreed to by the United States and the Soviet Union and incorporated into the June 10, 1968, Treaty text. Most of the public documents dealing with non-proliferation and the Treaty are col. lected in DOCUMENTS ON DISARMAMENT, a series compiled and issued annually by tle United States Arms Control and Disarmament Agency. An excellent historical account of the Non-Proliferation Treaty, issued under the auspices of the U.S. Arms Control and Dis. armament Agency is LAMBERT, ErFORTS TO PREVENT THE SPREAD OF NUCLEA, WEAroNS (1968). The story of post-World War II arms control negotiations in general, up to 1961, is authoritatively and readably told in B. BECHHOEFER, POSTWAR NEGOTIATIONS FOR ARMS CONTROL (1961). See also KLEIN, L'ENTRPRISE DU DSARMEMENT DEPUIS 1945 (1961); OrFiats OF PUBLIC INFORMATION, THE UNITED NATIONS AND DISARMAMENT 1945-1965 (United Nations, no date). 4. The ENDC was established by agreement between the United States and the Soviet Union and endorsed unanimously by the U.N. General Assembly on December 20, 1961. 16 U.N. GAOR 1129, A/RES/1722(xvi), Jan. 3, 1962; DOCUMENTS ON DISARMAMENT, 1961, at 741 (U.S. Arms Control & Disarmament Agency, Pub. No. 5, 1961). The Committee is composed of five NATO members: Canada, France, Italy, the United Kingdom, and the United States; five Warsaw Pact members: Bulgaria, Czechoslovakia, Poland, Rumania, and the Soviet Union; and eight non-aligned nations: Brazil, Burma, Ethiopia, India, Mexico, Nigeria, Sweden, and the United Arab Republic. France has never taken part In the meetings. The United States and the Soviet Union serve as permanent co.chairmen. The Committee first convened on March 14, 1962. The basis for discussion was a United States-Soviet Union "Agreed Statement of Principles" for future multilateral negotiations on disarmament. Paragraph 8 of the Joint Statement stated in part: "States partlcipatlng in the negotiations should seek to achieve and implement the widest possible agreement at the earliest possible date." Under the rubric of this paragraph, a Committee of the Whole was established (since discontinued) to discuss so-called "collateral measures." The Coin- mittee of the Whole agreed on May 25, 1962, to begin "concurrent" discussions on two proposals. The United States' item was reduction of the risk of war by accident, mIs. calculation, or failure of communications; the Soviet Union's item was non-proliferation of nuclear weapons, which at the time meant little more than an excuse for propaganda attacks against West Germany. DOCUMENTS ON DISARMAMENT, 1963, at 544 (U.S. Arms 1448 Nuclear Weapons General Assembly in New York. Moreover, on June 12, 1968, the Treaty was commended in a resolution of the United Nations General Assembly-adopted by a vote of 95 in favor, 4 against and 21 abstaining0 -and on June 19, 1968, in conjunction with the Treaty, a resolution on "security assurances" was adopted by the Security Council Now each nation must decide whether or not to become a party.8 A goal of overriding importance in the nuclear era is the avoidance of nuclear war.9 A flat prohibition on the further spread of nuclear Control & Disarmament Agency Pub. No. 24, 1954). As of March 14, 1968, when it adjourned for discussion of the Non-Proliferation Treaty in the General Assembly, the ENDC had held 379 plenary meetings divided into 13 sessions. Much in addition to non.proliferation has been discussed, but the Non-Proliferation Treaty is clearly the Committee's major accomplishment to date. 5. An account of NATO consultations regarding the Non-Proliferation Treat) is contained in Hearings on Arms Control and Disarmament Act Amendments. 1968, Before the House Comm. on Foreign Affairs, 90th Cong., 2d Sem. 29-30 (1958). 6. For text see A/RES/2375(.-xii), U.N. Doc. A/7016/Add.l, at 5, June 10, 1963. Four members were absent at the vote. Those against were Albania, Cuba, Tanzania and Zambia. Among the abstentions were Argentina, Brazil, France, India and Spain. The first three operative paragraphs of the resolution are: "1. Commends the Treaty on the Non-Proliferation of Nuclear Weapons, the text of which is annexed to the present resolution; "2. Requests the Depositary Governments to open the Treaty for signature and rati- fication at the earliest possible date; "S. Expresses the hope for the widest possible adherence to the Treaty by both nuclear- weapon and non-nuclear-weapon States .... " In a previous resolution of November 19, 1965, the General Assembly had urged "the early conclusion" of a non-proliferation treaty which should "be void of loop-holes" and should "embody an acceptable balance of mutual responsibilities and obligations of the nuclear and non-nuclear Powers." A/RES/2028(.xX), Nov. 23, 1965; Docu:,tr O Dts. AP-.iENT, 1965, at 532 (U.S. Arms Control & Disanament Agency Pub. No. 34. 19GG) [hereinafter cited as Docubmusrs ON DIsR.MA.MEENr, 1965]. At the resumed 22d Session of the General Assembly, the Treaty was criticized by many non-nuclear-weapon states mainly because it violated, in their view, the principle of "balance" of obligation of non-nuclear and nuclear states.