Unsere kanadische Schwesterorganisation hatte eine Äußerung des kanadischen Außenministers Stephane Dion zur rechtlichen Stellungnahme übersandt; hier die Antwort:

Dear colleagues,

thank you very much for informing us on the comment in a letter from your  Canadian Minister of Foreign Affairs, M. Stephane Dion, to Dr. Chirgwin, one of your colleagues.

According to us the quoted comment of your Minister of Foreign Affairs

"With respect to nuclear non proliferation obligations under the NPT, you mplied that the United States was in violation of its obligations under the NPT  in transferring its nuclear weapons to German territory. In fact, this is not  the case, because these weapons remain under strict control of the United States; Germany has no authority or control whatsoever over their use."

is wrong.

Article I of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)  constitutes the binding legal obligation: "Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly...".

And Art. II of the NPT constitutes the binding legal obligation: "Each on-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly..."

Although all non-nuclear weapons states are bound under international law in Article II of the Non Proliferation Treaty (NPT), not to have any direct or indirect control over nuclear weapons, there remains within NATO the practiceof “nuclear sharing”.

Additionally, Germany has confirmed the legal obligation of Art. II of the NPT in Art. 3 of the so-called Two-Plus-Four treaty of September 12, 1990, which entered into force on March 15, 1991.

“Nuclear sharing” includes, in particular,

(1) that Germany, the Netherlands, Belgium, Italy and Turkey remain involved in the Nuclear Planning Group of NATO; (The Nuclear Planning Group was formed in the 1960s which allowed European NATO allies participation in nuclear decision-making as well as discussions about the Alliance’s nuclear policy and doctrine. The fore-mentioned six NNWS members of NATO have bilateral nuclear cooperation agreements, known as Programs of Cooperation, with the US. All NATO members are parties to a 1964 NATO nuclear cooperation agreement.)

(2) that in secret bunkers in Germany, the Netherlands, Belgium, Italy and Turkey, there is an unknown number of nuclear weapons with several times the destructive power of those used in Hiroshima and Nagasaki; (In recent years, the number of US tactical nuclear weapons deployed in Europe has been substantially reduced. It is likely that less than 200 of these weapons are now deployed in

the United Kingdom and in the six NNWS members of NATO that are party to bilateral Programs of Cooperation with the US: Germany, Belgium, The Netherlands, Italy, Greece and Turkey. Currently, "only" air-launched B61 bombs remain in the fore-mentioned NNWS. Currently, these bombs are being brought up to date ("modernization") within the next 4 or 5 years.)

(3) that under NATO nuclear sharing agreements, in the case of a state of tension or war, these nuclear bombs would be made  available by the US to even the military forces of the non-nuclear weapons states Germany, Belgium, The Netherlands, Italy, Greece and Turkey, and hence to the forces of the German Bundeswehr for the bombing of enemy targets, contrary to the regulations of the nuclear non-proliferation treaty.

(4) that the six NNWS members of NATO mentioned above each currently maintain one Air Force unit equipped with dual capable aircraft fully trained and ready for the conduct of NATO nuclear missions. The following units are all earmarked for nuclear missions:  German Tornado fighter-bombers at Buechel Air Base, Dutch F-16 aircraft at Volkel Air Base, Belgian F-16 Falcons at Kleine Brogel, Greek A-7s (being replaced by F-16s) at Araxos, Turkish F-16s at Incirlik and Italian Tornados at Ghedi Torre.

(5) that the German armed forces ("Bundeswehr") – as well as the armed forces of the so-called other NATO non-nuclear weapons states – remain ready as nuclear carriers on the Tornado Aircraft and regularly conduct nuclear weapons exercises in the Rhineland-Palatinate area with the aircraft unit stationed at Buechel (33d fighter bomber squadron of the 2nd air Force Division).

In the consequence this form of nuclear participation of non-nuclear weapons states in NATO nuclear sharing arrangements includes the possibility that the control over nuclear weapons in wartime will be transferred to the Armed Forces of non-nuclear weapon states. So, according to me, the NATO nuclear sharing and decision making arrangements are to be qualified as a violation of Article I of the Non-Proliferation Treaty (NPT) by the respective NATO NWS and of Article II by the respective non-NATO NNWS.

After they had been informed by several NGOs like Greenpeace, IPPNW and IALANA, delegates of many non-NATO states expressed their lack of acceptance of this position for the first time at the 1995 NPT Review and Extension Conference. The ambassador of Mexico and other delegates declared that the NATO nuclear sharing arrangements violate Articles I and II of the NPT.

NATO unilaterally declares its nuclear sharing arrangements to be in compliance with the NPT.

However, at both the 1995 NPT Conference and the 1997 NPT PrepCom, NATO members continued to argue that NATO nuclear sharing arrangements are fully compatible with the NPT. In fact the argument about whether NATO nuclear arrangements are compatible with the NPT dates back to the negotiation of the Treaty itself. The key document on the US interpretation of articles I and II of the NPT is entitled "Questions on the Draft Non-Proliferation Treaty asked by US Allies together with Answers given by the United States". The  Questions and Answers were enclosed with a letter from the Secretary of State, Dean Rusk, to President  Johnson. The letter and the Questions and Answers were then transmitted to the Senate on 9 July 1968, along with other relevant documents, for consideration during the Senate ratification hearings on the NPT. This interpretation was thereby made public on 9 July 1968, eight days after the NPT signing ceremony at which the first 56 nations had signed the Treaty.

The Rusk-answer to the first question specifies that the Treaty prohibits the transfer of nuclear bombs, warheads or nuclear explosive devices, but "does not deal with, and therefore does not prohibit, transfer of nuclear delivery vehicles or delivery systems or control over them". This interpretation was intended to allow continued cooperation on development of delivery systems under the Programs of Cooperation and continued allied procurement of missiles, artillery systems and aircraft capable of delivering US nuclear weapons.

The Rusk-answer to the second question states that the NPT "does not deal with allied consultations and planning on nuclear defense so long as no transfer of  nuclear weapons or control over them results". This answer was designed to allow information exchange  within NATO’s system of nuclear sharing, including NNWS participation in Programs of Cooperation, drafting target plans, obtaining information about how different weapons would be used against different targets and the work of the Nuclear Planning Group.

The third Rusk-answer states that the NPT "does not deal with arrangements for deployment of nuclear weapons within allied territory as these do not involve any transfer of nuclear weapons or control over them unless and until a decision were made to go to war, at which time the treaty would no longer be controlling".This answer, that the NPT "would no longer be controlling" once a decision has been made "to go to war", is crucial to the US interpretation. The US definition of "control", as meaning that the weapons cannot be launched without the decision of the US President, is also critical. By definition, the US President would never take the decision to launch US nuclear weapons at any time short of war. Thus "control" over US nuclear weapons would only be transferred to NATO allies in the event of war, when the US considered that the Treaty was no longer binding.

However, the implication of this interpretation is that the use of US nuclear weapons by allied forces would be illegal under the NPT if the Treaty was binding in wartime.

The following central issues arise from the Questions and Answers:

1) Which states were informed of them, how and when they were informed, and whether they can be considered to have consented to these interpretations? It is high time for the US and the NATO member states to state publicly which governments were informed about the contents of the Questions and Answers, and on what dates, so that the public can make its own judgment about the timeliness and quality of US information provided before 1 July 1968 and thus the validity of these interpretations. The question is whether signatories would have objected had they been aware of the full implications of the US interpretation.

2) What constitutes control? All US administrations have consistently argued that NATO shared nuclear command and control is legal because the US guarantees to maintain positive control overall its nuclear weapons at all times. The specific interpretation, outlined in numbers one, two and three of the Questions and Answers, is allowing NNWS NATO allies during peacetime to make every preparation for the employment of nuclear weapons during war, almost as if the Treaty did not exist, that other countries are questioning. It is not clear from the Treaty text that there should be such a narrow definition of "control" or that everything that is not explicitly  forbidden should be allowed.

3) Does the NPT apply only "until a decision were made to go to war, at which time the treaty would no longer be controlling"? All NATO countries still make use of this so-called “war reservation”, according to which the Non-Proliferation Treaty would not be applicable if “a decision were made to wage war”. If this „war clause“ pretended by NATO nuclear and non-nuclear weapon states is valid the NPT allows that the US government transfers the control of nuclear weapons to non-nuclear weapon states after it had made the decision „to go to war“. This "war clause", which is hidden from public view, thus voids the Non-Proliferation Treaty and its prohibition, of the transfer of nuclear weapons to non-nuclear weapons states.

In contrary to this interpretation, the preamble of the NPT states that the general purpose of the Treaty is "to avert such a war". It does not, however, state that the Treaty is no longer controlling under conditions of war.  As far as we know, the pretended US-position was never made part of a formal international statement by the United States in connection with signature or ratification of the NPT in 1968 or later. And: The NATO nuclear arrangements have not been communicated to all the members of the NPT. The position concerning nuclear arrangements and the „war clause“ have been made public only in hearings before the US Senate on July 9th, 1968 and during the deliberation in German Parliament in 1974.

Best greetings

Hinweis: Der sogenannte „Rusk-Brief“ ist in dt. Übersetzung zitert auf S. 16/17 der BT-Drs. 7/994 (pdf)