Nuclear Tests Violate International Norm

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To the Editor:

The widespread condemnation of the Indian and Pakistani nuclear tests is not based, as some have charged, upon racism, religious bias or an attempt to prevent technological advances by South Asian nations. The May tests violated a global norm against any more counties with nuclear weapons, a norm begun 30 years ago with the signing of the nuclear Non-Proliferation Treaty (NPT). Most countries of the world now observe this norm, including over 10 that once possessed nuclear weapons or had nuclear-weapon programs. These countries in particular have reason to be outraged that India and Pakistan have chosen to thumb their noses at the norm. If this norm is to be preserved, violators must suffer serious consequences or the norm will become a paper tiger.

The NPT defines a nuclear-weapon state-permitted by the treaty to possess and test nuclear weapons-as "one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1,1967." This definition limited this status to five countries: the United States, the Soviet Union (now Russia), Britain, France and China (which had attacked the NPT negotiation).

India, a member of the conference that produced the NPT, did not object to this definition. Indeed, New Delhi was a strong proponent of the language now in the treaty requiring member-states to negotiate in good faith to halt the nuclear arms race (including nuclear testing) and to achieve nuclear disarmament. In an attempt to gain India's signature, American, British and Soviet negotiators drafted a joint statement that was intended to assure India that it would be defended against possible nuclear attack. But India saw the assurance as insufficient and chose not to sign the NPT.

As a result, Pakistan did not sign the NPT either. However, over the next 30 years, almost all of the rest of the world did. The NPT now has 185 members-equal in number to the membership of the United Nations. The only significant countries that remain outside the NPT are the three de-facto nuclear-weapons states: India, Israel and Pakistan. (Brazil has signed but not yet ratified the NPT; it is, however, a member of the Latin America nuclear-weapon free-zone treaty. Cuba has signed the Latin American treaty but not yet ratified it.)

Can the global non-proliferation/no-testing norm be applicable to India and Pakistan, even though they have refused to join both the NPT and the Comprehensive Test Ban Treaty (CTBT)? It is generally accepted that even those countries that have not joined the UN (such as Switzerland) are nevertheless bound by the UN Charter's prohibition against "members" using "the threat or use of force against the territorial integrity or political independence of any state." (Article 2(4).) Thus, non-parties to treaties can sometimes be bound by them. Is this such a case?

The UN Charter authorizes the UN Security Council to take action against a threat to international peace and security, whether the state or states creating the threat have violated a treaty or are party to a treaty that prohibited conduct such as India's and Pakistan's nuclear tests. In 1992, the Security Council announced that the proliferation of weapons of mass destruction constitutes a threat to international peace and security, thus giving the Council authority to take action. The statement (S/23500) did not say that any offending proliferator had to be a party to the NPT or any other treaty to cause such a threat by its acquisition of nuclear weapons. On June 6, 1998, the Council unanimously passed Resolution 1172, reiterating this statement and condemning the Indian and Pakistani tests in terms that suggested that those tests both violated a global norm and threatened international peace and security. The Council expressed grave concern "at the challenge that the tests...constitute to international efforts aimed at strengthening the global regime of non-proliferation of nuclear weapons. …