JURIST Contributing Editor Ali Khan of Washburn University School of Law says that the ostensibly-successful Nuclear Non-Proliferation Treaty, now under review in a month-long conference at the UN, may be on its last legs…

Recognizing "the devastation that would be visited upon all mankind by a nuclear war," the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was designed to prevent the spread of nuclear weapons. The NPT, now 35 years old, has succeeded to the extent that nearly 190 states have to subscribed the pact. Despite its grandiose universality, however, here are five reasons why the NPT is poised to fall apart in the near future.

1. The NPT’s nuclear club has been broken into. In 1970, the Treaty divided the world into two camps: haves and have-nots. It acknowledged that five states — the US, UK, France, Russia and China — lawfully possessed nuclear weapons. It hoped that the rest of the world would not acquire them. That did not happen. In 1998, India and Pakistan detonated nuclear weapons in face of the world. The US now publicly admits that Israel possesses nuclear weapons. North Korea claims to have nuclear weapons. The dilemma is therefore insurmountable. If the club of five is expanded to eight and perhaps more, proliferation would seem to have been accommodated. If not, the club would be treated as a foolish anomaly. Either way, the NPT is in legal disarray.

2. The NPT can be lawfully dumped. It allows a signatory state to withdraw from the non-proliferation regime “if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.” All that's required is three months advance notice. North Korea joined the NPT in 1985. In January, 2003, however, it withdrew from the Treaty (effective immediately). If North Korea detonates a bomb and joins the de facto nuclear club, the NPT would be further weakened. And the dumping rule will be reaffirmed in international law. As luck would have it, there will be new withdrawals from the NPT, most likely in the Middle East where states will not accept Israel’s regional nuclear monopoly. Even one or two more withdrawals will kill the Treaty.

3. The NPT’s foundational promise has not been not kept. The five declared nuclear-weapon states promised to cease the nuclear arms race and head toward a complete nuclear disarmament under strict and effective international control. The collapse of the Soviet Union was a godsend that halted the superpowers’ nuclear arms race. But no good-faith effort, as the Treaty requires, is being made towards complete nuclear disarmament. In fact, contrary to the letter and spirit of the NPT, the Bush administration is actively pursuing the development of brand new nuclear "bunker-buster" weapons. No treaty regime can succeed if a superpower shows such blatant contempt for the world. When the shepherd on the white horse loses his way, no sheep come home.

4. The NPT is a double-headed monster. It is simultaneously good and evil. In fact, the Treaty rests on a bargain. States relinquished the right to have nuclear weapons because they were led to believe that “peaceful applications of nuclear explosions will be made available” to them. Iran, a signatory to the NPT, claims that it has “the unalienable right” to develop peaceful nuclear energy. The United States claims that if Iran is allowed to acquire nuclear technology, it would come closer to developing nuclear weapons. Both claims are simultaneously accurate. This double-headedness is precisely the inherent flaw of the NPT. One of its head spews light, the other flame.

5. The NPT is a suicide pact. US foreign policy has created a global context in which it is far more attractive for states to have nuclear weapons than not to have them. The war on Iraq demonstrates that a state without weapons of mass destruction is vulnerable to invasion and occupation. It would be perfectly logical to conclude that Iraq was attacked not because it had weapons of mass destruction but because it had none. This pathological logic will be further confirmed if the United States continues to pursue diplomacy with North Korea, a country that presumably has nuclear weapons and the missiles to deliver them. The Iraq/North Korea binary reality resurrects old truths that ‘might is right’ and ‘be firm with the bullies” And so, in a dangerous world, adhering to the NPT will be considered foolish.

For these five reasons, the NPT seems no longer viable. If the analysis above is dark and pessimistic, and nothing be done about weapons of mass destruction, beware – more wars and “the devastation that would be visited upon all mankind” may be on the way. Unless, of course, there is complete nuclear disarmament.

Ali Khan is a professor of law at Washburn University School of Law in Topeka, Kansas. His book, A Theory of International Terrorism, will be published in 2005 by Martinus Nijhoff Publishers. Send comments to ali.khan@washburn.edu
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