On 15 July, Burundi deposited its instrument of ratification for the Treaty of Pelindaba.

Africa is now a Nuclear Weapon Free Zone.

The entry into force of the African Nuclear Weapon Free Zone Treaty, (also known as the Treaty of Pelindaba) is actually sort of a big deal for a couple of reasons relating to nuclear weapon free zones and negative security assurances.

The treaty is most interesting for Protocol I, open to the nuclear weapon states, which states:

Each Protocol Party undertakes not to use or threaten to use a nuclear explosive device against:

(a) Any Party to the Treaty; or

(b) Any territory within the African nuclear-weapon-free zone for which a State that has become a Party to Protocol III is internationally responsible as defined in annex 1.

The Clinton Administration engaged in a bruising internal debate about whether to sign the protocol, described at length in Chapter Four, Nuclear Deterrence in the Third World, of Janne Nolan’s An Elusive Consensus. In the end, the US signed the Protocol, but never submitted it to the Senate for ratification.

Nuclear Weapon Free Zones

There are several treaties creating “nuclear weapon free zones” in various regions of the world (including the entire Southern Hemisphere).

Treaty States-Party Open EIF
Treaty of Tlatelolco (Latin America and the Caribbean) 33 1967 2002
Treaty of Rarotonga (South Pacific) 13 1985 1986
Treaty of Bangkok (ASEAN) 10 1995 1997
Treaty of Pelindaba (African Union) 28 1996 2009
Central Asian NWFZ (Former Soviet Central Asia) 5 2006 2009

Adapted with modifications from Peter Crail, Nuclear Weapon Free Zones (NWFZ) At a Glance, Arms Control Association, November 2007.

Although the concept of regional nuclear weapon free zones pre-dates the universalist Nonproliferation Treaty (NPT), such zones are not necessarily archaic or duplicative. Indeed, they provide at least two useful elaborations on the NPT.

First, to the extent that the NPT exists at all in popular imagination, it is as a bargain between those five states with nuclear weapon and all the other states without. This popular conception of the NPT obscures the degree to which the NPT is also a collective bargain among non-nuclear weapon states to remain so. Nuclear weapon free zones make the “good neighbor” bargain explicit in a way that strengthens the NPT.

Second, most nuclear weapon free zones incorporate explicit negative security assurances. It is the nature of those assurances that led to the robust debate during the Clinton Administration and which makes the African Nuclear Weapon Free Zone so interesting.

For more on nuclear weapon free zones in general, I recommend Scott Parish and Jean DuPreez’s paper for the Blix WMD Commission, entitled Nuclear-Weapon-Free Zones: Still a Useful Disarmament and Non-Proliferation Tool?. I hope I don’t spoil the ending by telling you their answer is “yes.”

CNS also has a lovely collection of resources on the treaty.

Negative Security Assurances and Belligerent Reprisal

The US has signed the relevant protocols for the Pelindaba, Rarotonga and Tlatelolco Treaties— though only ratified the last. (The wording for all three is more or less the same.)

As I noted above, the wording is rather straightforward. In signing the Pelindaba Treaty, however, the Clinton Administration felt compelled to make clear in announcing the commitment is not actually a commitment:

Under Protocol I, which we signed, each party pledges not to use or threaten to use nuclear weapons against any ANFZ party. However, Protocol I will not limit options available to the United States in response to an attack by an ANFZ party using weapons of mass destruction.

The principle here is the notion of “belligerent reprisals” — “acts of retaliation in the form of conduct which would otherwise be unlawful, resorted to by one belligerent against enemy personnel or property for acts of warfare committed by the other belligerent in violation of the law of war, for the purpose of enforcing future compliance with the recognized rules of civilized warfare.”

Since I know your eyes are glazing over, let me explain with a story. Half of the foreign policy community in the Washington-area lives in the Shenandoah Valley and is enamored with the Confederate Colonel John Mosby, the Gray Ghost. Mosby is probably most famous for carrying out a belligerent reprisal in the Civil War. Philip Sutter, writing in The Journal of Conflict & Security Law, explains:

Colonel John Mosby was a young Virginia lawyer who began his military career when he enlisted in the Confederate Army upon Virginia’s succession from the Union. Mosby began the war as a private, and due to his conduct and bravery, eventually rose to the rank of Colonel. His command consisting of several hundred men waged a prolonged campaign behind the lines of the Union Army
in Northern Virginia, an area that became known as Mosby’s Confederacy. His operations against supply lines and depots succeeded in tying down tens of thousands of soldiers. Finally, in a large measure due to frustration, on 22 September 1864, seven of Mosby’s men were hanged by Union troops without trial. On 6 November 1864, he responded in kind by sentencing seven Union soldiers to death. Shortly thereafter, Mosby informed General Sheridan, Commanding Officer of Shenandoah Valley, that captured Union soldiers would be treated humanely ‘unless some new act of barbarity’ should occur. For the remainder of the fighting in the Shenandoah Valley, Confederate and Union forces refrained from committing any new violations of the law of war upon captured combatants. Despite Lee’s capitulation at Appomattox Court House, Mosby refused to surrender and finally disbanded his command only after Union threats to devastate the countryside.

I have no problem with belligerent reprisal as a concept. This is one of those cases where customary international law reflects the real world. Treaties are not suicide pacts. Mosby’s act of retaliation, though cold-blooded, was quite legal in the circumstance. One can make the argument that it served the greater good by re-establishing norms regarding the treaty of captive combatants.

I wonder, however, about the wisdom of to invoking the possibility of belligerent reprisal too often in our public policy prouncements.

After all, nuclear weapons exist — a physical manifestation of the option to use them that seems rather more impressive than a paper pledge not to. (Think of “speak softly and carry a big stick.”) And, as for adversaries who might think the niceties of international law would restrain the US after an attack with chemical or biological weapons, does anyone in the era of Gitmo really doubt whether or not a bloody-minded President could find a would-be John Yoo to produce the sophistries necessary to justify the use of nuclear weapons against a non-nuclear weapons state?

It seems to me that our nuclear options are too plausible, to the point where the interesting public policy challenge is too make credible the forgotten half of deterrence as articulated by Schelling — the promise to refrain:

“We have learned the threat of massive destruction deters only if there is a corresponding implicit promise of nondestruction in the event he complies …”

This is where negative security assurances come into play. One can argue, easily, that the lesson of Iraq and North Korea is that states like Iran are better off with nuclear weapons than without them. Negative security assurances at least make the argument that the opposite is true. That may have relatively little impact on Tehran, relative to other circumstances, but it probably helps our diplomacy in other cases — particularly in the upcoming 2010 NPT Review Conference.

Upcoming Special Session on Nonproliferation

Which brings me to a broader point about opportunities to reassert US leadership on nonproliferation.

President Obama will chair a special session of the UN Security Council on nonproliferation.

This is the perfect opportunity for the President to address the US Negative Security Assurance, which was issued in 1995 and reaffirmed in 2002. The NSA continues to include a cumbersome clause intended to exclude members of the Warsaw Pact:

The United States reaffirms that it will not use nuclear weapons against non-nuclear-weapon state-parties to the Treaty on the Nonproliferation of Nuclear Weapons, except in the case of an invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a state toward which it has a security commitment carried out, or sustained by such a non-nuclear-weapon state in association or alliance with a nuclear-weapon state. [Emphasis mine.]

This clause, which accounts for 54 of the 77 words in the assurance, results in a statement that is anachronistic, cumbersome, and seemingly drafted with the intent of evading its central commitment. It is particularly conspicuous given the President’s pledge in Prague “to put an end to Cold War thinking.”

President Obama might usefully take advantage of the special session on nonproliferation, to announce a “clean” NSA without the Warsaw Pact clause, and his intention to seek ratification of the Protocols to the Rarotonga and Pelindaba Treaties.

At a minimum, this would resolve a distracting talking point — Burkina Faso, Libya and Uganda are all members of the Security Council and signatories to the Pelindaba Treaty (Uganda has yet to ratify). At best, it would put the President in a position of strength beyond what he said at Prague on the topic of his choosing.