Im Zusammenhang der Klagen der Marshall Islands vor dem Internationalen Gerichtshof macht D.Deiseroth im Juni 2014 erneut darauf aufmerksam, dass auch Deutschland den Nichtverbreitungsvertrag in mehrfacher Weise verletzt, insbesondere durch die Politik der "nuklearen Teilhabe".
Although all non-nuclear weapons states are bound under international law in Article II of the Non Proliferation Treaty (NPT), and even Germany in the so-called Two-Plus-Four treaty of 1990, not to have any direct or indirect control over nuclear weapons, there remains within NATO the practice of “nuclear sharing”.
Instances of “nuclear sharing” include, in particular,
(1) that Germany, the Netherlands, Belgium, Italy and Turkey remain involved in the Nuclear Planning Group of NATO,
(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 which, in case of a state of tension or war, would be made available by the US to even the military forces of non-nuclear weapons states, 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.
(3) that the 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 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.
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, but even so the NATO states did not use the opportunity to deposit clear and formal reservations to that effect. Nevertheless, since the NPT Review and Extension Conference in 1995 and the 1997 PrepCom for the Review Conference in 2000, the issue was subject to controversy.
All NATO countries still make use of the so-called “war reservation”, according to which the Non-Proliferation Treaty would not be applicable if “a decision were made to wage war” (at which time the treaty would not prevail)1. 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. And it does so in the very case of heightened tension or war.
According to existing agreements and understandings between the US-government and the governments of several non nuclear NATO-states 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 not longer be controlling.“
This pretended 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. Obviously, 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.
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 controversy could be clarified in a contentious case against Germany filed for instance by the Marshall Inslands at the International Court of Justice because Germany has accepted the compulsory jurisdiction of the ICJ in 2008.
Declaration of Germany – recognizing as compulsory the jurisdiction of the ICJ ipso facto and without special agreement in conformity with par. 2 of Art. 36 of the Statute of the ICJ
1st May 2008
[Translation from the German]
With reference to Article 36 of the Statute of the International Court of Justice I have the honour to formulate on behalf of the Government of the Federal Republic of Germany the following declaration:
1. The Government of the Federal Republic of Germany declares that it recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing the declaration and with effect as from the moment of such notification, over all disputes arising after the present declaration, with regard to situations or facts subsequent to this date other than:
(i) any dispute which the Parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement or which is subject to another method of peaceful settlement chosen by all the Parties.
(ii) any dispute which
(a) relates to, arises from or is connected with the deployment of armed forces abroad, involvement in such deployments or decisions thereon,
(b) relates to, arises from or is connected with the use for military purposes of the territory of the Federal Republic of Germany, including its airspace, as well as maritime areas subject to German sovereign rights and jurisdiction;
(iii) any dispute in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.
2. The Government of the Federal Republic of Germany also reserves the right at any time, by means of a notification addressed to the Secretary-General of the United Nations, and with effect as from the moment of such notification, either to add to, amend or withdraw any of the foregoing reservations, or any that may hereafter be added.
Berlin, 30 April 2008
Minister for Foreign Affairs