FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 10, 1998

• 0910

[English]

The Chairman (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): I'd like to call this meeting to order. It's a continuation of our committee's study on the issue of nuclear non-proliferation, arms control and disarmament.

We're very pleased to have with us this morning three individuals.

[Translation]

This is Professor Yves Le Bouthillier, who is a professor of international law at the University of Ottawa. He's not the only one in this category. Mr. Turp, please restrain your enthusiasm because we have another law professor before us.

[English]

Have you noticed how much the dough of the committee has been leavened by all these professorial appearances?

We are also pleased to have Ms. Peggy Mason, who's our former ambassador for disarmament and a representative of the Canadian Council for International Peace and Security, and Mr. Paul Buteux, who is the director of the Centre for Defence and Security Studies at the University of Manitoba. Thank you very much for coming.

[Translation]

I'll give the floor first to Professor Le Bouthillier.

Mr. Yves Le Bouthillier (Professor, Faculty of Law, University of Ottawa): First of all, I would like to thank the committee for having invited me here to discuss Canada's policy on the use of nuclear weapons.

The object of my presentation, on the one hand, is to summarize the most important aspects of the opinion concerning The Legality of the Threat or Use of Nuclear Weapons, published by the International Court of Justice in July 1996 and, on the other hand, based on the opinion of that Court, to suggest that it is important for the Canadian government to develop a strategy that will make nuclear disarmament one of its priorities in the area of foreign policy.

The International Court of Justice wrote this advisory opinion at the request of the United Nations General Assembly, but with the encouragement of the states and non-government organizations opposed to the use of nuclear weapons. For those international actors, an opinion from the Court on that matter would be a positive development in their quest for the elimination of nuclear weapons.

Judging by the first reactions in the medias concerning this opinion of the Court and from the subsequent analysis of the different experts in the field, the opinion of the Court had the intended effect. There is a vast consensus to the effect that this opinion is a major contribution in the fight for disarmament. This consensus rests on two findings in the opinion: first, the first finding, the fact that the use of nuclear weaponry is only justifiable in an extreme situation and the second finding is the obligation for all states to negotiate and come to an agreement for total nuclear disarmament.

I, for one, share the conclusions of this analysis in part only. The opinion of the Court unfortunately seems far less clear to me than some would have it. More particularly, and I'll be explaining this later on, the conclusions of the Court concerning those situations where the use of nuclear arms is justified or not leave the door open to different interpretations. On the other hand, the shortcomings revealed by careful perusal of the Court opinion are, in my opinion, in themselves convincing arguments in favour of prohibiting any use of nuclear armament.

First of all, the opinion of the Court reveals serious ambiguity. More particularly, its conclusions suggest different interpretations. For the object of this presentation, I will limit myself to two possible interpretations of the opinion or conclusion of the Court and in both instances I shall point out briefly those uncertainties that result.

The interpretation of the opinion most frequently put forth by the experts is that any use of nuclear armaments, except perhaps in the case of a state survival, is illegal. The Court, on the other hand, cannot affirm that any total prohibition exists as to the use of nuclear weapons because, and I quote:

In view of current law and the facts available, the Court cannot conclude definitively as to the lawfulness or unlawfulness of the use of the nuclear weapons by a state in an extreme circumstance of self-defence in which its very survival would be at stake.

• 0915

So, in the Court's opinion, the law is uncertain as to the lawfulness of the use of nuclear weapons.

This uncertainty shown by the Court, if that interpretation is accepted, calls into question the policy of those states supporting the doctrine of nuclear deterrence. According to this interpretation of the Court's opinion, no state today can say that it might be lawful to use nuclear weapons even if the very survival of that state is at stake. No state can make such a statement with any certainty. Moreover, if existing law does not allow the Court to declare any and or all use of nuclear weapons unlawful, taking into account the foreseeable evolution of law, it is difficult to conceive that the Court might one day come to the conclusion that international law henceforth justifies the use of nuclear weapons if the survival of a state is at stake. As the Court has recognized, the momentum is clearly in the camp of those states wishing to abolish nuclear weapons and, to that effect, it mentions an emerging rule, in international law, towards abolition.

However, despite my preceding comments, were one to suppose that a law were to evolve one day in such a way as to allow a state to use nuclear weapons to ensure its survival, then one would have to define the term "survival" of the state. The court might be called upon to answer questions on which its opinion sheds little light.

In particular, the court did not specify whether the concept of survival of a state meant its survival as a political entity or the physical survival of its population. In view of the absence of any answer to that question, it is difficult to decide on the lawfulness of the following scenarios:

1) During the invasion and total occupation of Kuwait by Iraq, could the United States have used nuclear weapons against Iraq to ensure the survival of Kuwait?

2) Would the use of nuclear weapons be allowed only to ensure the survival of the state in its integrity or also to protect only part of its territory?

3) Is the survival of a State at stake if an aggression is specifically directed against an ethnic group of another state while sparing the members of the ethnic group of the attacking State?

4) Are the dangers that might threaten the survival of the state limited to the use of weapons of mass destruction such as nuclear, chemical or bacteriological weapons; for example, could seriously jeopardizing the means of subsistence of a population without using weapons of mass destruction justify the use of nuclear weapons?

Whether the survival of the state has a political or physical foundation, the Court would still have to solve the following dilemmas:

1) Can the survival of one state be acquired at the expense of another? We know that for a long time the purpose of the American nuclear warheads was to deter an invasion of Europe by conventional Soviet armed forces. Could the survival of certain European states have justified an American nuclear attack without any regard to foreseeable civilian losses? Besides, which state could have decided to resort to such a measure? What would have happened if the threatened European states had been divided on the matter? Could a European State have used nuclear weapons to ensure its survival at the risk of jeopardizing the survival of an ally or neutral country that could have been directly damaged by the fallout of the nuclear weapons or, and this is too often forgotten, at the risk of causing nuclear escalation?

2) Can a state use nuclear weapons based on the legitimate defence anticipated to ensure its survival? In other words, can a state use nuclear weapons to answer an aggressive threat whether that threat comes in the form of a nuclear or conventional attack?

• 0920

3) Does the right of survival through the use of nuclear weapons belong only to nuclear states or also to their allies? In other words, is there a collective right of legitimate defence? This question is, of course, of fundamental importance to decide whether NATO's nuclear umbrella is lawful or not. Even though the opinion of the Court is not clear on that matter—because sometimes the right of self-defence is mentioned for a state and at other times for states—one could say that some parts of the opinion as well as the separate opinions of certain judges seem to suggest the existence of a right of collective self-defence. But it's not clear.

4) By virtue of the concept of proportionality, inherent in self- defence, the state can only use whatever force is necessary to defend against an attack. The Court does not however suggest any specific criteria to measure the proportionality of a nuclear response leaving it up to each state to evaluate the proportionality of its action when under fire. Can a state consider as being proportional a nuclear reply whose goal is to deprive the aggressor of any means of threatening it in the future?

5) In supposing that even when its survival is threatened, a state must respect international humanitarian law, that is the laws of war applicable in the case of armed conflict, how far can a state go in inflicting indirect civilian casualties on the aggressor in the name of military necessity?

These questions we put within the context of what I call the first interpretation, that is that the use of nuclear weapons is unlawful, but that the Court isn't sure when the survival of a state is at stake. On the other hand, the survival of the state exception also poses many problems.

As I indicated before, the conclusions of the Court also lend themselves to another interpretation according to which the use of nuclear weapons is possible in situations other than those where the survival of the state is at stake. By virtue of this interpretation, recourse to nuclear weapons is generally unlawful because, as the Court states, the nature of nuclear weapons cannot be reconciled in any way with human rights. Recourse to nuclear weapons is however not excluded in those cases where international humanitarian law can be respected, especially when the survival of a state is at stake. But that would not be the only exception. However, still according to that interpretation, the reference of the Court to the survival of the state does not mean that is the only situation where recourse to nuclear weapons may be justified but rather the only situation where states would not be held to respect international humanitarian law when they use nuclear weapons. However plausible in the light of the Court's opinion, this interpretation does however seem to be in conflict with the position of nuclear states before the Court. All those states affirmed that the use of nuclear weapons must conform to international humanitarian law.

In my opinion, it would be regrettable that the interpretation allowing the use of nuclear weapons as long as a state respects international humanitarian law were to prevail. The debate then is not about the concept of the survival of the state but rather about the balance, always difficult to establish, between military necessity and humanitarian law. Many of the questions mentioned before remain relevant. May one avail oneself of anticipated self- defence? May one avail oneself of collective self-defence? What constitutes a proportional response?

It's true that many of these unresolved questions are not solely reserved for the use of nuclear weapons. They pertain for any use of force. However, those uncertainties have particularly serious consequences in the case of nuclear weapons.

In view of the ambiguity of the Court's judgment and the absence of any answer to a certain number of questions, one must admit that it is difficult to determine how far the policy of any given state, whether Canada or any other, concerning the use of nuclear weapons goes today in satisfying international law. One thing is sure: any interpretation of the Court's opinion allowing a state to use nuclear weapons in certain circumstances does give relatively broad discretion to the states. According to the Court, the use of nuclear weapons seems difficult to reconcile with the respect of international humanitarian law. We would add that, in our opinion, the parameters within which the use of force is permitted—necessity, proportionality—are not sufficiently specific nor sufficiently narrow to be able to hope that in a crisis situation, the states with diverging interests share a common analysis as to the lawful use of nuclear weapons.

• 0925

Surely conscious that laws regulating the use of nuclear weapons will never constitute a sufficient guarantee for humanity, the Court emphasizes the obligation for the states to pursue negotiations and come to an agreement on all aspects of nuclear disarmament. By coming down firmly on the side of disarmament, which is very clear in the conclusion of its brief, the Court discredits the arguments according to which the safety of humanity is to be found in deterrence rather than in disarmament. In my opinion, this choice of the Court is its most important contribution to the problem of nuclear weapons. The Court reminds humanity that it has been walking down the corridor of death of its own volition and that it is up to humanity to walk out of it. In this respect, Canada has a role to play.

The Chairman: Professor, I'm sorry to interrupt you, but we're trying to keep preliminary observations down to 10 minutes to allow for a question. So could you wrap up quickly? I know that professors are more used to a 50-minute period rather than a 10- minute one, but we have to...

Mr. Yves Le Bouthillier: I'm down to my last comments.

I think we should deplore Canada's silence on the Court's opinion. Many members of NATO and many other states have made known to the court their position on the matter for the benefit of their population and the international community. Canada has not taken advantage of this opportunity to become an active participant in this debate. So it has once again deprived its population of part of the debate and it is now difficult to evaluate how far the Court's opinion goes in matching Canada's, as Canada has not made its position known. One would add that Canada's silence does not, of course, mean it is neutral in this matter. In its opinion, the Court has clearly stated that those states in favour of nuclear deterrence, including those states making up NATO, are the ones preventing the emergence of a rule prohibiting any use of nuclear weapons. In my opinion, Canada must now clearly indicate, in the light of the Court's opinion, which approach, whether deterrence or disarmament, will best ensure the future of humanity.

Presuming that Canada, as the Court is inviting it to do, chooses the path of disarmament, it will then have to invest those resources necessary to develop, in concert with other interested states, a strategy and a realistic schedule to eliminate this threat.

I would blame myself if I were to conclude without mentioning the world of tomorrow, that is children. In the middle of the Second World War, Saint-Exupéry led us to the discovery of a Little Prince who was afraid his precious planet would one day be destroyed by a proliferation of weed-like plants. He doggedly tore out those plants before they grew into giant trees, baobabs, that one day might tear asunder his little planet. I think that Saint- Exupéry, who wrote this book in 1943, didn't think that two years later we were going to create our own baobabs and that we would develop them over a 50-year period.

Thank you.

[English]

The Chairman: Miss Mason.

[Translation]

Ms. Peggy Mason (Individual Presentation): Mr. Chairman, members, it's a very great privilege to be here today. Unfortunately, before making my oral presentation, I must apologize for not having produced a text sufficiently in advance to allow its distribution today in both official languages. I will leave the text with the clerk and hope that in a few days he'll be able to distribute it in both official languages and facilitate the deliberations of this committee.

• 0930

For today, I prepared a one-page summary, a sort of a gathering up of the main points elaborated on in the text. If the members of the committee are in agreement, I'd like to circulate this in an informal way to help them follow my oral presentation. I left copies with the clerk. Thank you, Mr. Chairman.

Once again, I apologize for this procedure.

[English]

Mr. Chairman and honourable members, I would like to briefly outline my main arguments. Before doing that, however, I guess there is one very preliminary point I need to make. I am appearing in my personal capacity. I'm very pleased to be identified as the director of the Canadian Council for International Peace and Security, but that diverse body does not have a position on this issue. Therefore, I'm representing myself here today.

Before briefly outlining my arguments, I would like to indicate where I am coming from in making my presentation. These are my fundamental premises, if you will.

The first premise is that I believe NATO is a vital institution for regional and global security in the post-Cold War world. It is precisely because I believe so strongly in its continuing importance that I'm interested in helping to ensure that its nuclear doctrine keeps pace with other changes.

The second fundamental premise that I bring to this is that I believe that Canada's non-proliferation, arms control, and disarmament policy is dynamic and forward-looking. It's probably at the forefront of policy among our NATO allies. This, in my view, affords us a strong foundation from which to promote a meaningful, real, and substantive debate within NATO.

The third observation I would like to make in starting out is not in my written text. It relates to the first day of hearings, when I believe a question was raised by committee members about the impact that the review this committee is now undertaking, or a revision of nuclear policy, might have on Canada's CANDU sales. I understand that some interveners questioned the relevance of this line of questioning in the inquiry the committee is undertaking.

With all due respect, Mr. Chairman and honourable members, in my view, this is a very relevant question. Ever since 1974, when India detonated a so-called peaceful nuclear explosion using nuclear technology transferred in good faith by Canada for peaceful purposes, Canada has been determined—in fact it has been in the forefront—in ensuring that we promoted and were part of a strong nuclear non-proliferation regime.

This was so our promotion of peaceful nuclear energy is precisely and intimately related to our support for a strong non-proliferation regime. It's to ensure that this technology never again promotes nuclear weapons. To the extent that NATO's current nuclear policy is seen to undermine our non-proliferation policy, it will also, in my view, undermine our credibility both domestically and internationally as a responsible promoter of peaceful nuclear energy.

With those introductory comments, I would like to turn to the main points. The key points are outlined on this one-page document. I won't spend too much time on this first point because it was elaborated on by my colleague very ably in his presentation.

First and foremost, I would suggest to the committee that current NATO nuclear policy, even as revised in 1991—because NATO did in the post-Cold War period look at its nuclear policy and revised it to reduce reliance on nuclear weapons—even the policy as revised in 1991 unmistakably leaves open the option to use nuclear weapons in circumstances contrary to international law, precisely because the current NATO policy leaves all nuclear options open. It specifically states that it is based on a policy of uncertainty, so all nuclear options are left open.

• 0935

However many disagreements there may be over the International Court of Justice decision, I think it is clear that the majority of the court does not support all nuclear options being left open.

NATO heads of state and government in 1990—this was the London summit, the first post-Cold War summit—declared that they would ensure that NATO nuclear policy would be revised to ensure “that nuclear weapons were truly weapons of last resort”. Yet the policy that emerged in 1991 did not meet this high-level political commitment. The resulting policy, as I said, leaves all NATO's nuclear options open, including first use of nuclear weapons.

The new review of nuclear policy, however—because the timing of this committee is very propitious.... The heads of states and governments of NATO in July of 1997 have announced a new review of nuclear policy. This is set to begin in early 1998. It offers Canada an historic opportunity to work with other like-minded countries within NATO for endorsement of the opening of negotiations on a no-first-use regime.

I use the terminology “opening negotiations” because I'm not suggesting that NATO should unilaterally make such a declaration. I'm suggesting that NATO should seriously explore how it might open nuclear negotiations, particularly with Russia and other nuclear weapons states, for the creation of a no-first-use regime.

I know the committee has heard particularly from my very distinguished successor, Canada's ambassador to the UN for disarmament, Mark Moher, in the in camera proceedings. I'm basing that on his text, which has been made available. I know that the committee has heard that this is not going to be an easy task and that there will be serious resistance, particularly from the nuclear weapons states within NATO, to having such a serious review. First and foremost, however, they have launched another review. So in principle, at least, they are open to having a serious debate.

Of course one of the key reasons why this new debate has been launched is that Russia is pressing for it very strongly. With NATO enlargement, with three former Warsaw Pact members being invited into NATO, Russia is very keen that the issue of tactical nuclear weapons on the soil of other than the United Kingdom, France, and the United States, as part of NATO's policy, be dealt with.

So we have a real pressure. We have a process and we have real pressure coming for serious consideration of ending the first-use policy.

Beyond that, I would say that a serious review of NATO's nuclear policy is very much in the interest of the NATO alliance, for the following reasons.

First and foremost, an outdated nuclear policy suggests an outdated NATO. Here I'm really talking about the public perception. There's a very strong and continuing public perception that NATO continues to cling to its nuclear policy because if it doesn't it will no longer have any justification. I believe nothing could be further from the truth. The kind of role that NATO is now playing, the cooperative, security-building role it is playing, working with the former Warsaw Pact countries in Europe, the cooperation for example among these countries in the peace operation in Bosnia, is a testament to the extremely important role that NATO can play in the post-Cold War without a nuclear first-use policy.

So in effect what I'm saying here is that we can never ignore the lack of public support or public cynicism about an institution, especially when the continuation of the institution requires substantial resources. So this is a very important point. NATO must show that it is keeping up with the times with respect to its nuclear policy.

• 0940

The second point is about NATO's current insistence in keeping all its nuclear options open given the fact that there's only one superpower with extraordinary conventional capacity. If NATO insists in keeping all its nuclear options open in spite of this conventional capacity, this is surely the worst possible example for threshold states.

In addition—and I think committee members have heard this before from other groups—it is considered by the majority of non-nuclear-weapon states party to the NPT to be a betrayal of the commitment of the nuclear weapon states to pursue in good faith negotiations towards complete nuclear disarmament. And I note in the presentation by Mr. Le Bouthillier that there was one unanimous point on the International Court of Justice and that is the obligation on all nuclear weapon states to pursue such negotiations in good faith.

In other words, NATO's current policy undermines international support for one of Canada's most important security objectives, and that is the objective of an effective, credible, global nuclear non-proliferation regime. And not just a non-proliferation regime with respect to nuclear weapons, I might add, but with respect to all weapons of mass destruction. It's something that should be on all our minds given what is going on today with respect to Iraq.

Another reason why it seems to me that a meaningful review of NATO's nuclear policy is very much in the interest of the alliance is the fact that a lack of meaningful debate coupled with the lack of clarity in the strategic concept—what NATO's nuclear policy is called—as to when nuclear weapons might be threatened or used could mean that by default in a crisis U.S. counter-proliferation policy will dictate the actual content of NATO nuclear policy.

It is no secret that the United States believes in and is developing strategies for countering the use of biological weapons, for example, with a nuclear deterrent. Surely that is something that should be debated actively by the members of NATO, particularly the non-nuclear members. This is a new mission for NATO for nuclear weapons and is quite outside the international treaty regime we have, which seeks to ban them, not find new missions for them. Surely we should debate this meaningfully within NATO rather than having American-driven American policy developed in the United States become the policy of NATO by default.

The Chairman: This is a technical term, “counter-proliferation policy”, and it specifically refers to an evolving policy at the heart of the United States that it is legitimate to use nuclear weapons when threatened with other weapons of mass destruction. In this case it would be chemical or biological.

Ms. Peggy Mason: Yes.

The Chairman: I think all the members of the committee understand that when the term is used that's what we're talking about.

Ms. Peggy Mason: Thank you very much, Mr. Chairman.

The Chairman: Counter-proliferation...it didn't seem obvious to me, but everybody else seems to be nodding their heads. All the experts seem to agree on this.

[Translation]

Even in French, I would hope, Mr. Le Bouthillier.

[English]

Ms. Peggy Mason: Mr. Chairman, you mentioned the word “chemical” and that ties into the point I was just making about this evolving policy of counter-proliferation. If you look at chemical weapons, this evolving policy flies in the face of the convention on chemical weapons.

The chemical weapons convention, which has been ratified by the United States, prohibits for all purposes the development, production and use—for retaliation or for any purpose—of chemical weapons. That's what the treaty says. So this demonstrates the difficulty with this kind of strategy, this kind of creeping counter-proliferation strategy, if you will.

But my real point is that this strategy, which the United States in good faith is pursuing because it believes it is the right strategy, is not something that NATO should find itself adopting in a crisis. This is something that all members, particularly non-nuclear members, have to be sure they agree with, that this is the road they want to take.

Again, I agree with Ambassador Moher that this kind of debate in NATO is not going to be an easy one. That is because—and this is where I might differ in part from some of the interveners who have come before me—I do not believe that the road to the complete abolition of nuclear weapons is an easy one. It is not an easy one because to date we seem to have a dialogue of the deaf. We seem to have one side declaring that it's quite clear that there's no role for nuclear weapons and we must get rid of them now, and we have the other side declaring that they're trying hard, but there are all sorts of important reasons the weapons are still required, and therefore they are doing the best they can.

• 0945

There is no real meaningful debate on how we get from here to there. By that I mean we have to examine seriously the reasons nuclear proponents believe they need nuclear weapons.

This relates to my second-last point. If Canada is serious about the high priority being placed—

The Chairman: Sorry, could you squeeze the two points into one? Because we're well over our 10-minute rule, which is the only point I seem to ever get to make here.

Ms. Peggy Mason: Okay.

The Chairman: I need a nuclear deterrent, I think, in these committee meetings.

A voice: You need a fusion reactor.

Ms. Peggy Mason: Thank you, Mr. Chairman, and I'll try to wind up.

Essentially the fundamental point is if we're going to reduce reliance on nuclear weapons, then we have to start the dialogue now on how to build effective non-nuclear collective security structures, and that of course is not an easy process. In my view, the first and best place to do this, initially at least, is within an alliance of generally like-minded nations that place an equally high value on nuclear non-proliferation.

The whole problem we're seeing with how to respond to Iraq demonstrates that the security challenges of the new millennium will require broad international support if they are to be tackled effectively. Let Canada resolve to work with others in NATO to ensure that the alliance is not impeded by a backward-looking nuclear policy from being an effective instrument in helping forge that new consensus. There must be broad international support if we are to have a credible collective security regime. NATO can participate in building that consensus or it can stand in the way of it.

Thank you very much, Mr. Chairman.

The Chairman: Thank you very much, Ms. Mason.

Professor Buteux.

Mr. Paul Buteux (Director, Centre for Defence and Security Studies, University of Manitoba): Thank you.

Before I speak to my brief, I want to say this. I read in the newspaper this morning of the death yesterday of a friend of mine, John Halstead, who was a former Canadian ambassador to NATO and a great Canadian patriot. I know he would have followed the proceedings of this committee with a great deal of attention and commitment.

John, up there, you're looking over my shoulder with your wry smile, disagreeing with me as usual.

I suspect that what I have to say today parts company somewhat from both Yves Le Bouthillier and Peggy Mason, but Peggy will not be surprised by that, as we've known each other for years.

Being a rather simple academic, I read the minister's letter to this committee asking for an inquiry into Canada's non-proliferation, arms control, and disarmament policy, and took it literally. So my remarks today are addressed both to some of the reports and documents that have come out in recent years advocating the prohibition or elimination of nuclear weapons and to the International Court of Justice's advisory opinion.

The purpose of my brief is to sketch out why nuclear weapons will not be eliminated or prohibited and to question the relevance and utility of the International Court of Justice's advisory opinion.

I must say that my authority, as a non-international lawyer, to comment on the advisory opinion is based upon the fact that I was taught international law by one of the judges on that court. Rosalyn Higgins I remember as a very attractive and charming young woman about a year older than me teaching international law at the London School of Economics many, many years ago. Here I am commenting on her opinions.

• 0950

One of the things worth noting about nuclear weapons is that since August 1945, nuclear weapons have not been used in war, this despite the fact that they have existed in the arsenals of the great and not-so-great powers for some 50 years. Given the past history of weapons and war, this is a remarkable fact that begs the question of why nuclear weapons have not been used.

The simple answer is to be found, I believe, in the character and structure of international security during this period and in the key interests of the main actors in that system.

Basically, what we had was a bipolar system in which the two centres of power agreed on a broad acceptance of the status quo in areas of vital and major interest to them. Each side could entertain visions of a more desirable arrangement, but after 1962 at least, neither side was prepared to use force to bring it about if it involved a perceptible risk of nuclear war.

As a result, both east and west adopted war avoidance strategies based on this common aversion to nuclear war. Thus there occurred the evolution of strategies of mutual deterrence and the complementary growth of policies of nuclear arms control. Indeed, managing deterrence safely made arms control necessary.

Despite occasional declaratory statements to the contrary, both sides came to accept that nuclear weapons had little if any utility as war-fighting instruments, but at the same time both sides recognized their profound impact on the structure of the international system in general and on the bipolar relationship in particular. Nuclear weapons, then, were integral to what in retrospect turned out to be a remarkably stable international order.

Now this order has collapsed and the question posed to this committee as to what the role in future of nuclear weapons will be has to be answered in greatly changed and uncertain circumstances. We are not sure—I'm certainly not, anyway—what is going to happen.

However, one consequence is already clear. As in every other post-war period, there has been substantial disarmament on the part of those who participated in the conflict. Nuclear disarmament is already under way and will in all likelihood continue for some time to come, and it can be anticipated that some time in the first decade of the next century, there will be fewer nuclear weapons operational globally than at any time since the 1960s.

In fact if you take the NPT seriously, which I do a bit, and if you take the advisory opinion seriously, which I do hardly at all, the nuclear powers have demonstrated that they are already negotiating disarmament in good faith. But just as previous post-war periods have failed to secure the utopian goal of general and complete disarmament, so the current attempts to secure the prohibition or complete elimination of nuclear weapons will fail also.

The reason for this is that as long as the international system remains much like it is today, nuclear weapons will continue to have utility, not necessarily for all who currently possess them—after all, in South Africa we have one clear ex-nuclear power—and not because many who currently do not possess nuclear weapons will wish to do so, but because nuclear weapons constitute the ultima ratio, the final argument, if you wish, of military power, and because the fact of their existence cannot be undone.

There's a more immediately practical reason for suggesting that nuclear weapons will be around for a long time to come. Dismantling arsenals is a costly, technically difficult, and time-consuming process. The full implementation of current nuclear disarmament agreements between Russia and the United States will not be concluded until the next century, and there are still many unresolved problems in connection with them. Among these, for example, the accounting for and safe and secure handling of the fissile materials released by the dismantling of warheads stands out. But there are a number of others, and many of these particularly have to do with verification.

• 0955

Although both major nuclear powers have mandated a third round of strategic arms limitation, even on the assumption that political circumstances remain favourable to its successful negotiation, it will not be achieved rapidly. The agreed deadline of 2007 looks increasingly optimistic. Add on further reductions to the current agenda and it can be seen that substantial numbers of nuclear weapons will continue to exist well into the next millennium. And this doesn't account for the arsenals of the second-tier nuclear powers, the undeclared nuclear powers and any nascent nuclear power that decides to cross the threshold. We are looking at a timeframe measured in decades rather than years. The world might look very different from what it does now at the end of this process.

A major problem—and I really think this has been missed—with the schemes for complete nuclear disarmament this committee has heard is that the time necessary to implement them is beyond any feasible policy horizon. You can will the ends, but it is impossible to legislate the means. It's a simple, practical, as well as a logical fact.

In the United States over the past several years a number of official and semi-official texts have all affirmed a continuing role for nuclear weapons in American strategy. All have been premised on the belief that the United States should retain the capacity to exercise deterrence against a wide range of contingencies. It's worth noting that the suggested instruments of deterrence are not restricted simply to nuclear weapons. There are great expectations, which I believe are unlikely to be fulfilled, concerning the potential of the so-called revolution in military affairs, smart fancy weapons. If we see the gulf fight break out again we'll see CNN showing us missiles disappearing down air shafts and all that goes with it.

No one in the United States, certainly not in official circles, is suggesting the exclusion of nuclear weapons from American strategy. Where there's consensus on American strategy to change it is not going to move in the direction of nuclear abolition despite the fact that the best report of the best and the brightest on this stuff that has come out is the National Academy of Sciences' report last year, which makes the Canberra commission look like a bunch of weekend activists. In fact it won't move in that direction but rather towards securing a more narrowly drawn defence perimeter and in these circumstances the retention of nuclear weapons in a finite deterrent strategy will be a necessary corollary of this choice.

I think one has to recognize that for some considerable time to come the policies and actions of the United States will be the primary determinant of the future of nuclear weapons, and also of the nuclear arms control regime. When one looks at the nuclear arms control regime one should look at two issues of particular relevance, that of non-proliferation and that of disarmament. Of course the two are linked in article 6 of the Nuclear Non-Proliferation Treaty, but one should also point out that historically non-proliferation and nuclear disarmament have not been linked.

In the interests of time I'll skip over what I had to say about this, but just point out that in terms of non-proliferation this is a central item in U.S. national security strategy. It's so important to the United States and seemingly to NATO that counter-proliferation strategies are being devised, and some have suggested that nuclear weapons have a role to play in these counter-proliferation strategies.

The second thing I would say—and maybe I'll just skip over it, say it and then pass on—is it seems to me that the whole proliferation problématique, which was defined in the Cold War, has completely been challenged by the ending of the Cold War. I think that it's becoming less and less effective to talk about proliferation in the terms in which we got used to talking about it in the Cold War, that the conditions that supported non-proliferation in the Cold War are changing.

Let me just add one other point. We're all very keen, or apparently we're all very keen, and we say we're all very keen on non-proliferation. But of course from our point of view—the fat, rich west—non-proliferation is a very good deal for us. Because what the existing non-proliferation regime does is in fact seek to entrench and solidify a balance of military power in the world and therefore a set of arrangements in the world that are very much in our interests.

• 1000

A lot of countries that are trying to hold the west to the fire on nuclear disarmament, on proliferation, are doing so because they recognize very clearly that as long as things remain the same we'll be on the top and they'll be on the bottom. Personally, I rather like being on the top, but let's not confuse ourselves, let's not be pious about it. The existing set of arrangements is in our interests, and we, hiding behind the coattails of the United States, are prepared to use force to keep it up. And the only way we can use force is to have in the background nuclear weapons. Nuclear weapons are very useful, they are very functional, and they are not going away. And ironically they are essential to the non-proliferation regime. So please let's be realistic about it; let's not deceive ourselves with pious platitudes. This is an area that suffers far too much from pious platitudes.

Having said all this, this is still compatible with nuclear disarmament. Nuclear disarmament has been taking place since 1987 and it will continue to take place. The START III objective announced by both Russia and the United States of 2,000 to 2,500 warheads a side seems plausible. And as long as things remain the same, I could envision even lower limits. But beyond START III I think we're in a very uncertain area. From the perspective of Canadian policy, the fact must be accepted that for the foreseeable future large numbers of nuclear weapons are going to remain in existence. They serve far too many security and political needs for them to go away.

Moreover, it's not clear to me that the factors that constrained proliferation during the Cold War will continue to operate. I think the whole issue of the way in which we think about and look at proliferation needs to be examined. I think we have to start to try to formulate a new paradigm and new concept for looking at it.

Let me just turn briefly to the advisory opinion.

The Chairman: Very quickly.

Mr. Paul Buteux: It's a very confusing and confused document. I think the methodology is wrong. And I think there is an enormous sense of unreality generated by the attempt of the court to define the law regarding nuclear weapons based upon humanitarian laws. If there's one thing we've learned this century, it is that as war becomes total, there is a complete breakdown of the jus in bello rules. And I think we can all agree that a war involving nuclear weapons on the part of the major protagonists would be something like total war. To try to look at the legality of nuclear weapons because they don't agree with Aquinas' ideas about proportionality is just absurd to me.

If we are going to try to constrain nuclear weapons by law, it seems to me that one of the ways in which one should do it is not jus in bello but jus ad bellum, looking at the circumstances in which it is in fact permissible to threaten to use nuclear weapons and indeed perhaps to employ them rather than to attempt to demonstrate their incompatibility or define the circumstances under which they would be compatible with humanitarian law. In practice there is a solid body of law governing nuclear weapons, and that is the body of law that is contained in the arms control agreements governing nuclear weapons. And that law is effective because in fact there's a high degree of compliance with it.

We should ask why it is that there's a high degree of compliance. The reason is because it's in the interests of those whose compliance is necessary for the law to exist. And if you look at that advisory opinion outside of legal textbooks, with apologies to my colleague to my right here, by and large the legal argumentation that is adduced on the various aspects of the issues is totally and completely irrelevant to the way in which law functions in practice.

• 1005

The conditions that would allow international law as presented by the court to function simply do not exist, and to try to determine policy on the basis of a pretence at law rather than the fact of law strikes me as being counterproductive.

Thank you.

The Chairman: Thank you very much, Mr. Buteux.

Also, thank you for your comments about Professor Halstead. Many of us in the committee worked with him when he was working with us on the preparation of the foreign policy review, the joint Senate and House committee that we worked on with Professor Halstead.

I would also like to draw to the attention of the members of the committee the fact that the National Academy of Sciences report to which you referred is in our briefing materials. We had that report distributed to the members.

Mr. Mills.

Mr. Bob Mills (Red Deer, Ref.): We talk about disarmament and about the U.S., Britain, France and Russia and so on. It seems to me that, as has been pointed out, there will be a decline in the numbers of nuclear weapons, that it's already set into the process and that will happen and everybody's happy that it will. Obviously it would be nice not to have any nuclear weapons at all.

Is that even what the concern is? I ask this because that's already happening. Isn't the concern that rogue states, terrorists and other people will have access to these types of weapons?

It's like the mine treaty. Everybody who signs it aren't the ones that are using or producing them. It's the people in their basements that are making them and still planting them. Maybe they can't even read or write, but they sure as heck know how to make a land mine. Is it not that sort of threat in the next century that we should be more concerned about, terrorist use of this kind of weapon of mass destruction?

Secondly, it was mentioned that the U.S. is the only superpower and therefore we should focus on the U.S. I disagree with that. I think it is not unrealistic to consider China as a superpower and to think that we had better be prepared for what that superpower China will be able to do 10, 20 or 50 years from now.

The deterrent aspect of something like a nuclear weapon.... As horrible as it might sound, if it gives us the stability we've had in this century, maybe it's not unrealistic to think it might give us that stability in the next century.

Those are a couple of pretty far-reaching questions, but those are the kinds of things that I think we should be addressing. I put that to all of you, really.

Mr. Paul Buteux: If I could respond, I have several points.

Quite frankly, I don't know how to measure the risk of a “terrorist” or a “terrorist state” getting hold of a nuclear weapon. Presumably there is some risk, but I can't put a number on it.

What I will say is that I don't see how the existing political and diplomatic mechanisms that we have in place and the processes within which we work, with respect to managing the risks of nuclear weapons, arms control, disarmament agreements, non-proliferation, etc., can handle this finite but unknown risk of terrorist action with respect to nuclear weapons.

I think you've opened up an entirely new can of worms, and I'm not confident that I have expertise in that area. All that I will note is that it's not as easy to make a nuclear weapon as some people would have us believe. The theory, the basic description of how to make one, is within the scope of any reasonably bright undergraduate doing physics. The engineering required to make one is enormously difficult and expensive. You've opened up a can of worms, but I don't think it can be handled by non-proliferation policies.

• 1010

Mr. Bob Mills: If I could just interrupt briefly, we see on television that there are suitcase nuclear bombs. Now, is that totally fictitious—

Mr. Paul Buteux: No.

Mr. Bob Mills: —or in fact are those real?

Mr. Paul Buteux: NATO deployed two in the 1960s. They were withdrawn, I think, in the early 1980s. There were two so-called atomic demolition munitions. One was handled by a two-man team and one was handled by a five-man team. I believe the two-man weapon weighed something like 40 kilograms. You can make them that small.

After all, NATO deployed nuclear devices that you could stick on the end of a 155-millimetre shell. I don't know if you've ever seen a 155-millimetre shell, but it's not very big. When you look at the warhead portion of it, it's heavy, but it isn't very big.

The so-called suitcase bomb is not fiction, it's reality. It can be done. These are not easy, but if you're in the business of producing all sorts of fancy nuclear weapons, which the United States and Russia have been doing for years, then you can make them, yes. That's not fictitious.

If I could just respond to your question about China, I've been in the business of teaching international politics for 30 years, and for 30 years I've been waiting for China to become a superpower. It hasn't yet, and I wonder whether it ever will.

I will note, however, that while everybody else is in fact reducing the number of nuclear weapons they have—this means the declared nuclear powers—China is the only one still increasing its weaponry.

Ms. Peggy Mason: I would like to respond to these questions as well.

Picking up on the China issue first, of course China has a very long way to go in its nuclear build-up before it reaches the point at which there's any serious concern from the three western nuclear weapon states.

The key point there is the fact that there's no question we're talking about unilateral nuclear disarmament. All of this discussion is predicated on negotiations among the five nuclear weapons states. In other words, when the United States has reduced to a level at which it has to start considering the strength of China's nuclear program, then nothing further would happen unless China were part of that negotiation. So there's simply no question that we're talking about unilateral nuclear disarmament.

But to me the really important point is this: it's precisely the concern about rogue states that informs my desire for NATO to update its nuclear policy. In my view, the only thing we can argue credibly about on nuclear deterrents is that they seem to be useful in deterring the use of nuclear weapons by anyone. At least, there is the argument that this is the utility.

In terms of all of this other discussion, particularly terrorists threats and rogue states, it seems to me that the evidence is very clear that what's required, short of bombing the country into obliteration, is a very strong international regime.

The case of Iraq, again, it seems to me, is a very important example. After the Persian Gulf War, there was strong support in the international community. There was unity in the UN Security Council for the establishment of the most far-reaching verification regime that has ever been put in place. This was a verification regime that not only sought—it has been very successful in detection—and destroyed weapons of mass destruction, whether chemical, nuclear, or biological, but it also put in place a long-term monitoring system so that all the potential industrial facilities that might lead to the building of a new capacity were being monitored. That was able to be done because there was a very strong international consensus.

What's the problem now? What's Saddam Hussein exploiting? He's exploiting the disunity in the international community. He's exploiting the fact that the United States—I would argue that it's not just because of its perceived bias on its Middle East policy—for the past few years, because of Congress, has paralysed the United Nations by the billions of dollars it owes. The United States has flouted the overwhelming will of the international community that it pay up.

• 1015

Now when it says “In the name of the international community we must counter Saddam Hussein”—and I agree we must do this—much of the international community does not want to follow. Even if in their heart of hearts they might believe something needs to be done, the disunity is there. There is a fundamental lack of agreement in the Security Council, and this reflects a more broad disunity in the international community.

My point is that if we are going to be able to deal effectively with menaces such as Saddam Hussein, we have to have broad international support. However much updating the nuclear non-proliferation policy needs—and I agree with my colleague that it does need updating—it is clear that continuing to find new reasons and new arguments in NATO for not moving ahead a little bit.... I'm not arguing that there be abolition tomorrow; I'm arguing that there should be a really serious debate on how we get from here to there. But I will suggest that saying that even a first use of nuclear weapons cannot be ruled out by NATO is not the way to build a genuine coalition.

It simply reinforces what my colleague said about the feeling that the real impetus behind this policy is to keep a certain group on top. I, for one, believe the whole history of Canada's belief in the United Nations and belief in collective security mechanisms is that over the long term it has to be a policy that's shared by the many, not by the few, if it is to be sustainable.

The Chairman: We'll have to go to Mr. Turp, and then perhaps we'll have a chance to go back.

[Translation]

Mr. Yves Le Bouthillier: It's interesting you mentioned China, because we recently saw that the dissolution of the Soviet Union had complicated the debate on nuclear weapons. There had to be new distributions and arrangements between states to dispose of those nuclear weapons. It's not impossible that empires might break apart in the future and, of course, the more nuclear weapons there are, the more complicated that might become. We can't foresee what will happen over the medium term. In talking about China, there are people who say it's not impossible that empires can dissolve. That can happen and it has happened in the past. I think that we could find ourselves with a problem in that respect. You mentioned states, "rogue states". It's not impossible for states to break up and there again there may be a problem. I believe we must also think about such possibilities. Why? Even though it's just a slim possibility, the consequences could be enormous. Thank you very much.

The Chairman: Mr. Turp.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): I would like to start by thanking the three witnesses for taking the time to appear before our committee and to present their views in very different ways. Our friend Mr. Le Bouthillier is a legal expert and he analyzed the decision which his colleague Mr. Buteux said was not relevant at all and has no impact on the behaviour of states. Ms. Mason, for her part—and I find this quite interesting—implies that NATO's policy should take into account this opinion from the International Court of Justice and be reviewed in light of the provisions set out by the Court in its document.

My question or questions will focus on the Court's decision, and the views from each of your communities. My first question is to Mr. Le Bouthillier. I should mention that I am not at all surprised—if you will allow me to make a slightly political comment—that Canada did not take a position on the decision or at least was very restrained in its reactions, because it had said that the International Court of Justice should not study a political matter. We would like to see the same attitude regarding other issues, because it seems there is a desire to put a political role in other courts, within the country, for example.

• 1020

But, as I said, I am not surprised at this attitude, although Canada did speak of this part of the Court's decision which was unanimously adopted, and which states that there is an obligation to conduct in good faith and conclude negotiations leading to nuclear disarmament on all aspects under strict, effective international control.

I come now to my question for you, Professor Le Bouthillier. In your view, is this requirement stated in article 6 of the Nuclear Non-Proliferation Treaty one that results from common law, because there are some states that are not part of the Nuclear Non- Proliferation Treaty? What is your legal opinion on this?

Mr. Yves Le Bouthillier: That is an excellent question to the extent that I think this is one of the important developments contained in the Court's opinion. At the very end of its opinion, the Court made a comment, one that it did not have to make in order to respond directly to the question. Not only did it mention article 6 of the Non-Proliferation Treaty, it also mentioned the obligation of all states, without exception. In this respect, I think that everyone who has written about this since the opinion agrees that the Court was referring to more than article 6 of the Treaty and that in this regard, the obligation was binding on all states. This is the reason why this was seen as an important aspect of the decision, because the Court was not required to say that. It went farther than it had to.

Mr. Daniel Turp: Is this view shared by other qualified individuals like yourself—namely that this is a common law obligation?

Mr. Yves Le Bouthillier: In light of the same Court judgement and in the opinion of Roger Clark as well, who was involved in the debate, I think that... In addition, Matheson, who represented the American government, may have had a more restrictive view. Many of those who have written about the opinion since it appeared were legal experts on one side or the other of the debate. In that regard, it is tempting to say that everyone seems to be trying to pull the covers to their side of the bed.

However, since I was not involved in the process, my view is that the opinion is very ambiguous, even though I find it very clear in this respect. There is article 6, and then it says that all states have an obligation to negotiate and conclude an agreement on armaments in light of the Court's opinion.

Mr. Daniel Turp: My second question is along the same lines and is for Ms. Mason. You spoke about the Court's opinion and its impact on NATO. Were you thinking of this part of the opinion that would require member countries of NATO, and NATO itself, to take part in an effort to achieve nuclear disarmament in all its aspects? Is that what you were thinking of when you were speaking about the relationship between NATO and the International Court of Justice?

Ms. Peggy Mason: No, not specifically. First of all, I would like to say that the other decision unanimously adopted by the International Court concerned the application of humanitarian law to threats or to the use of nuclear arms. That decision was also adopted unanimously.

[English]

That's really what I had in mind. As I just said, one of the two unanimous aspects of the advisory opinion was that a threat or use of nuclear weapons should be compatible with the requirements of international humanitarian law.

As an aside, I note that that means that Canada's reservation to the Geneva Protocol—the one, by the way, dealing with landmines—which reservation says that humanitarian law does not apply to nuclear weapons, is wrong. This is a unanimous decision of the court.

Of course this is a difficult thing for the court to do. It is an advisory opinion, after all. They are trying to set out the general state of the law. They are trying to provide guidance based on the treaties, based on customary law, as to what they might decide in an actual case. In that decision they clearly....

• 1025

Let's go back one further step. In this discussion of what the court decided, if we want to take numbers—and I think in this case it is useful to take numbers—seven judges, including the president of the court, decided that the threat or use of nuclear weapons was illegal in all but one possible case, and that was the survival of the state that Mr. Le Bouthillier talked about. Three of the judges decided that the threat or use was illegal in all circumstances. In other words, part of the minority opinion of the court was in favour of a complete ban on nuclear weapons. Four of the judges ruled that the threat or use was not generally contrary to international law.

In other words, ten of the fourteen judges ruled that the threat or use was generally or always illegal.

Against that backdrop, it seems to me that, in addition to the nuclear weapons states pursuing in good faith incremental steps towards nuclear disarmament, there is also an obligation on all members of NATO. This is touching on your point, Mr. Turp.

There is an obligation on all members of NATO, and I would say particularly on the non-nuclear members who believe in the importance of international law, like Canada, to ensure that NATO's policy, insofar as it is possible to do so, seeks to reconcile itself as much as it can with that decision.

It seems to me that if the thrust of the decision is to try to limit the circumstances in which nuclear weapons might possibly be legal—and I think that's what it tries to do—then NATO itself, in reviewing its policy, ought to see whether or not it can identify a more limited set of circumstances in which nuclear weapons might be used. The interesting thing is that this is what the heads of government and heads of state said in 1990.

I believe that in fact there is a contradiction between the high-level political statement made in 1990 by the heads of government and state of NATO when they said we are going to change this policy and make sure that nuclear weapons are weapons of last resort. That language, it seems to me, comes very close to being in accord with the International Court of Justice decision.

But if you look at the actual policy that they developed—in my written paper I quote specifically from the policy as it was developed—they don't do this. The actual policy does not say that NATO will use nuclear weapons as weapons of last resort. Instead, it says the opposite. It says that the cornerstone, the fundamental basis, of NATO policy is uncertainty. In other words, all options are open. We reserve the right to determine when we might use them. So it is the opposite. It goes in the opposite direction.

Again, I would emphasize that what I am urging is that in this NATO review Canada should seek to ensure that the high-level commitment, the words of the politicians, “weapons of last resort”, be reflected in the actual technical terms of the strategic concept.

[Translation]

Mr. Daniel Turp: Thank you, Ms. Mason. You are very dynamic, but I would also like to hear Mr. Buteux's answer.

Ms. Peggy Mason: Of course.

Mr. Daniel Turp: Mr. Buteux, when Ambassador Douglas Roche came here and answered one of my questions, he was somewhat less cynical than you about the possible elimination of nuclear arms. He told us that the important thing is

[English]

what is at the heart of the issue,

[Translation]

as he said, it is the United States. We must be able to influence the United States. That is absolutely crucial. Would you agree? Should the focus be less on the International Court of Justice and more on the United States? What do you think?

[English]

Mr. Paul Buteux: Quite frankly, Doug Roche, dear man that he is, is completely and absolutely wrong.

He is right in one thing. The United States is key. Why is the United States key? Because the United States currently is the sole hegemon. The United States has a functioning nuclear arsenal with a great deal of variety and flexibility available to it. Unless the United States acts in a particular way, nothing will happen. That is simply a reality.

The key negotiations going on at the moment are between the United States and Russia. Russia is not going to take the lead, but Russia is concerned. The Americans are concerned about the Russians because they're the only other major nuclear game in town. How that works out will determine the whole setting for discussions about nuclear weapons.

• 1030

I didn't have time in my presentation for this and in fact in the written form of it I don't go into it, but an argument can be made that in post-Cold War circumstances the incentives for proliferation, the incentives for seeing nuclear weapons as having utility, has increased. It is not an argument that is easily dismissed, whether you accept it or not. We are not looking at a world that is good for nuclear disarmament but we are possibly looking at a world in which indeed more states might wish to acquire nuclear weapons.

After the Gulf War—

Mr. Daniel Turp: So why is he wrong? You haven't gotten to that point yet.

Mr. Paul Buteux: Why is he wrong? Because there will not be nuclear disarmament. It's simple. We will not get rid of nuclear weapons, not in my time. As long as the world is based on a system of states roughly looking like it does today, nuclear weapons will exist.

My concern is that the incentives and the utilities to acquire nuclear weapons might in fact be increasing. The constraints that operated in the Cold War to limit the number of states that took the trouble to get nuclear weapons are no longer in operation. It's interesting if you look at the Canberra commission report and the National Academy of Sciences report that as part of their schemes to lead to the elimination or prohibition of nuclear weapons they assert that a crucial role will have to be played by the United States in terms of offering positive security guarantees and in fact in exercising a pax Americana.

It seems to me there are two problems with this view. In a way it's realistic. One problem of course is that the United States might not be willing to provide that public good and it's unlikely to be willing to provide that public good in the absence of nuclear weapons. So there's an internal contradiction in the reports.

The second thing is that these reports are western liberal documents, despite the cosmopolitan character of the committees that established them. The discourse is entirely fat, western, rich. Let's be brutal about this: what they fail to recognize is that for many people in the world, for many states, for many countries, the pax Americana is part of the problem. One of the attractions of nuclear weapons is to challenge that pax Americana.

I don't know whether it's true or apocryphal, but the Indian chief of the defence staff after the Gulf War apparently said that you don't fight the United States on the United States' terms. With all this fancy military technology there is no way we, the lesser, weaker powers, can challenge the military power of the United States. The only answer is nuclear weapons.

[Translation]

Mr. Yves Le Bouthillier: Perhaps just to...

The Chairman: Excuse me, but you have already had 15 minutes. Perhaps there may be an opportunity to come back later on.

Mr. Bachand.

Mr. André Bachand (Richmond—Arthabaska, PC): The interesting thing this morning is that the committee got a wake-up call. After listening to the presentations this morning, we see that Canada, or at least its minister, is not about to go out with its pilgrim's staff throughout the world proclaiming that nuclear weapons must be abolished. This involves a great deal more work. This is definitely not an issue like the antipersonnel land mines issue. That was a diplomatic success, although implementation may be a different matter.

• 1035

I'd like to come back to Mr. Buteux and talk about the applicability of nuclear arms conventions, assuming that the majority or even all of the countries agree. It is always difficult to implement international conventions, and that is why I think the opinion of the International Court of Justice we are talking about here today will not be worth very much in the case of a war.

To see what happens with conventions, we need look no further than what is going on in Iraq. Since 1925, there's been a protocol in Geneva that has been amended and that bans the production, storage and use of chemical and biological weapons. That happened in 1925, almost 75 years ago. Iraq signed the protocol in 1972. Today we are hearing that there has to be an intervention in Iraq because that country has chemical and biological weapons. The nuclear problem also calls into question the applicability of international conventions. In my view, the International Court of Justice does not have this power.

Mr. Buteux, I would like to hear what you have to say about applicability. I understood you to say that nuclear weapons had always existed. Nevertheless, I think we must seek to eliminate them, to ensure that someday they will proliferate less quickly. Unless you live a very long time, I don't think you will see a world without nuclear weapons. I hope you do live a very long time, but I don't think either you or I will live long enough to see that.

I would like to hear what you think about the enforceability of the various agreements we have in place. Although the situations are different, perhaps you could compare the nuclear issue with what happened in the past regarding antipersonnel land mines and conventions on chemical and biological weapons that may mean that Canada will be going off to war.

I liked your presentation very much, Mr. Le Bouthillier. Among other things, you said that the Courts spoke about extreme situations and the survival of the State. You emphasized two main points: political and human considerations, that is the survival of the population. But people have often gone to war for economic reasons.

In answer to a question asked by Mr. Mills, you spoke about the issue of borders. As you know, when we look at the borders that existed 150 years ago and today, we see that they have changed completely. Forty years ago, there were blocks, whereas now we have more of a jigsaw puzzle, with pieces being added each year. So once again I would like to know how a convention can be applied, or how we can ensure that these States agree to never have any nuclear arms?

So, Mr. Buteux, followed by Mr. Le Bouthillier.

[English]

Mr. Paul Buteux: Let me make these points. First of all, there clearly is an effective law governing nuclear weapons. That is, there are documents based upon legal principles and the United States actually accepts and acts on the basis of those documents. The law functions. That law is not customary law; it is conventional or treaty law and it is involved with the whole complex of arms control and disarmament agreements in place.

In 1987, for the first time the United States and the then Soviet Union signed a treaty saying we will eliminate all nuclear weapons carried on missiles with a range between 500 and 5,000 kilometres. Both sides lived up to that agreement. There's a whole complex of treaty law governing nuclear weapons that works. There might be a bit of cheating at the edges and there might be some ambiguity, but it works. It works just as well as the speeding laws work in this country, probably rather better if I'm to be the measure of that. It works.

Why does it work? It works because it's in the interests of those who are to comply with those laws to comply with them. International law can only work if it is functional. If it is aspiration, if it is pious platitude, it has never worked and it will never work.

• 1040

What I have real reservations about the advisory opinion is that it is trying to find law where no law exists. In the words of one of the dissenting judges, the American judge—Schwebel, I think his name is—he said: “We must not confuse the law as it is with the law that we would like it to be.”

With due respect to Doug Roche and all of those who think like him, they are falling into a very common fallacy. The fallacy I call the municipal fallacy, the belief that international law is like municipal or domestic law. It isn't. It operates in an entirely different context.

To believe that because 14 learned jurists struggle around and they find various sources of law and say that the use of nuclear weapons will be incompatible with humanitarian law, as I say, might be a useful intellectual exercise, but as law it is completely and absolutely irrelevant. The last thing anybody would be worried about if nuclear weapons were to fly around the globe is humanitarian law. The decision of 14 judges unanimously in The Hague saying that these things are illegal is entirely and absolutely irrelevant.

If in fact we want to manage the risks and avoid that, then we better think about these things differently. I find the whole thing almost absurd that this should be the case. There is a law governing nuclear weapons. It is a law that functions. Why does it function? It functions because the social circumstances that allow a law to function, whether it's here in Canada or globally, happen to be in place, and those whose actions and compliance are necessary for it to function find it useful or find it necessary to comply. If those conditions aren't met, it doesn't matter whether we're talking about municipal law in Canada or international law; that law is ineffective.

The Chairman: Thank you, Profession Buteaux. You are an Austinian and not a natural law lawyer, I'm sure. Or do I dare introduce—

Mr. Paul Buteux: I do think it's simple: that law serves a social function, and if the society doesn't sustain that social function there is no law.

Mr. Bob Mills: See that's common sense. It would be my tendency here to simply say that's right on. Most of us in the public think about lawyers that way as well.

[Translation]

The Chairman: Mr. Le Bouthillier.

Mr. Yves Le Bouthillier: I should perhaps say that Judge Rosalyn Higgins, with whom you have taught, did dissent from the Court's decision.

I would like to make a few points. First, as Ms. Mason said so well, whether we agree or not, the International Court of Justice is after all the body with the authority to state that international law clearly says that international humanitarian law must apply. However, it was not just the Court that said this, but also the United States, Russia and all states.

I might prefer not to look at what is known as jus in bello, international humanitarian law, but rather at jus ad bellum, the right to resort to war. In what circumstances could nuclear arms be used, and in what circumstances could they not be used? I think I showed clearly, and this comes back to your question about the survival of the State, that in the name of that survival—even though the American legal expert, Matheson, involved in the case said that this could mean many things—attempts have been made to justify a great deal of abuse in the past. So when you say that it might be better to look at the jus ad bellum, I am afraid that you are getting away from the area of the law and getting to one which ultimately does not offer any solution either.

I think the argument that could be defended is that international law works as it is now, and that the existing treaties prevail. I think we could try to draw an analogy with violations under the Highway Traffic Act.

• 1045

I think the problem lies with the certainty with which we say this. Thus, in the case of nuclear weapons, we know very well that there must be 100% certainty, because if things are not working some day, as was just said, international humanitarian law will no longer be of any importance. Why? Because nuclear weapons will cause humanity to disappear.

So ultimately, this all comes down more or less to an act of faith. Then we have to decide whether we will use the legal route, for example, to build toward disarmament or not. What we were told here is that this works, because it has worked for 45 years and is continuing to work despite the fact that the world is changing.

I come back to what you were saying about borders. What I was trying to highlight when I mentioned borders, was not that verification would be difficult. My point is that you can have declared nuclear states, such as China, or non-declared nuclear states, such as India, that may split up some day into other states, and then things will be more complicated. There will be more states, whether they are rogue states or not, with nuclear weapons. We have to think about that ahead of time.

Now I come back to the other point you were making about chemical weapons. We have just negotiated a convention on chemical weapons with an extremely precise verification system. You mentioned the example of Iraq. By the way, there's an article in the Globe and Mail this morning that states that General Lewis MacKenzie, who does have some experience in this area, does not agree that it is time to use force against Iraq. We agree that Saddam Hussein is continuing to hide weapons, but we should remember that in the last few years, in the case of verifications, from what the United Nations itself has said, his nuclear or chemical stockpile has been almost completely eliminated. Now we are hearing talk about biological weapons. I think he is doing everything he can to try to get the sanctions removed. So there is a debate on this.

I have no doubt that in the end, this must be subject to a verification system. We found that useful in the area of chemical weapons, and, clearly, it is the only solution for nuclear weapons.

I think we can all agree—and this is in fact why the law exists—that there are people who are going to act outside of the law. So as far as nuclear weapons go, the idea is to build a system that will prevent this as far as possible. Are we talking about international controls, verification or progressive disarmament? The problem at the moment is that there does not appear to be any will to go in this direction. Why? I think that some people agree with Mr. Buteux, namely that nuclear weapons will always exist. If we take this attitude, we will obviously not make any progress toward disarmament, because it is not desirable according to this analysis. So we have to make a decision. It does come down to a question of certainty, but we are caught between two extremes: security through deterrence or destruction.

[English]

The Chairman: Thank you very much.

There are only 12 minutes left, and I have two questions, from Mr. McWhinney and Ms. Augustine. I'm going to pass to them, and we'll see if we can wrap up shortly. Mr. McWhinney, you go first, and then we'll go to Ms. Augustine.

Mr. Ted McWhinney (Vancouver Quadra, Lib.): I thank the witnesses for giving us a debate and not a unity of opinion. That would have been rather boring.

I would caution you, though, against reading too much into World Court opinions. When this was planned by the international committee that drafted the briefs—the WHO and the General Assembly—it was an assumption of the continuation of the activist majority on the court that gave the Nicaragua judgment fourteen to one in 1986. There were three deaths of people who would have run for re-election and who were really the core of the activist group—Nagendra Singh, Taslim Elias, and Manfred Lachs. So it's an entirely different court.

You do have problems with what is really a lowest common denominator—multiple opinion, advisory opinion, which is only cobbled together by the diplomatic skills of its Algerian president, Bedjaoui. So be cautious in reading too much into it.

I wonder whether I can ask for the record, Ms. Mason.... Your statement is somewhat categorical in several points, and I'd like to be clear on what you're saying here. You say that current NATO policy “unmistakably leaves open the option to use nuclear weapons in circumstances contrary to international law”. Is that linked to your statement in the second paragraph, “the resulting policy leaves all NATO's nuclear options open, including first use of nuclear weapons”? Is that what you're saying is contrary to international law—first use of nuclear weapons?

• 1050

Ms. Peggy Mason: In fact in the written paper, in which I go into this in more detail, I have said that it is possible to envisage one circumstance in which the first use of nuclear weapons might fit within this possible exception. For example, if an ally of NATO was threatened with massive use of biological weapons that threatened the very survival of the state, in that circumstance, then, a nuclear response, which would be a first use—since nuclear weapons were not used in the beginning—a narrow point, might fit within the possible exception. Of course I agree with you that we have to be cautious about how far we can go with this decision. Again, I come back to my point—

Mr. Ted McWhinney: It's not a decision. It's an opinion—

Ms. Peggy Mason: The advisory opinion, yes, which does nevertheless seek to state in an authoritative way the current state of international law. But I think you've raised the very interesting point that on the basis of the argument some members of the court appear to set out, one could envisage at least one circumstance in which first use might fit within the possible exception.

Nonetheless, it does seem to me that the thrust is to limit all options as much as possible, and that has led me to argue.... And of course I'm not just arguing it on the basis of the International Court of Justice's decision. My argument is equally based on the statement that I think very much reflected what the public wanted to hear very sincerely, the high-level statements by the heads of government and state that nuclear weapons should be weapons of last resort in the post-Cold War, not the weapons of first resort or potentially weapons of first resort. I'm basing my argument that NATO very seriously consider revisiting the first-use policy on both those elements.

Mr. Ted McWhinney: President Nagendra Singh and I looked at this question, and we concluded, I think reluctantly in his case certainly, that there's no rule excluding the first use of nuclear weapons. It was lex ferenda at best, not lex lata. I don't find anything in the 1996 advisory opinion to the contrary, but that is basically the demonstration of the proposition you're making in the first paragraph; it's the no first use.

Ms. Peggy Mason: Again, I would like to make a clarification. I am not saying that the decision of the International Court of Justice, the majority decision, so far as one can determine it, rules first use illegal in all circumstances, but it does appear to seriously question a broad first-use policy in all cases, leaving the option open. That is my view of what NATO's current policy is. I think it would be very helpful if this is clarified and narrowed and brought into line with what the heads of government said they were going to do with this policy.

Thank you very much.

Mr. Ted McWhinney: I got a general impression, Professor Buteux, that you probably would prefer Judge Oda's position, which is much stronger than Judge Schwebel's. By the way, Judge Oda, Judge Schwebel, and Judge Higgins all had the same international law teacher. It produces some rather strange—

Mr. Paul Buteux: Bedfellows.

The Chairman: We had better not get into that, having three international law teachers at this table. I think of corrupt students around the world.

Mr. Ted McWhinney: I'm not speaking of corruption.

The Chairman: Ms. Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Mr. Chairman, I want to thank the witnesses for giving us such a lucid set of arguments. I rather enjoyed that. But I'm sitting here as a committee member knowing that we have to make some recommendations.

While you were making your arguments I asked myself if you were telling us to recommend stopping, keeping the status quo, keep going, or do the following. If you were sitting as a committee member and you had to make some recommendations, what is it that you would say or what would be that one recommendation you think is most important to leave with us this morning?

• 1055

The Chairman: We'll just poll each one. We'll start by Ms. Mason.

Ms. Peggy Mason: The very end of my written paper states:

In conclusion, it is therefore respectfully recommended that Canada, in the context of NATO's recently announced review of its nuclear policy, work with other NATO likeminded to bring its strategic concept more fully in line with international law. In particular, serious consideration should be given to working with other likeminded allies to obtain NATO endorsement for the opening of negotiations among the five nuclear weapon states on a “no first use of nuclear weapons” regime.

Thank you.

The Chairman: Paul Buteux.

Mr. Paul Buteux: I'm an academic, and it's my job to tell you why it won't work rather than to suggest things that might work.

Mr. Daniel Turp: It's not my definition.

Mr. Paul Buteux: I would make two points, I think. One is that I think Canadian policy has to rest upon the fact that as far as it is politically feasible, large numbers of nuclear weapons are going to continue to exist.

Canada is closely allied with countries that possess nuclear weapons and continue to possess nuclear weapons. I think the last thing that Canada should do, in fact, is gratuitously disassociate itself from its closest allies by taking a high moral ground or high legal ground stand about nuclear weapons. So that is a recommendation for what I think Canadian policy should not do.

As to a recommendation of what Canadian policy should do, I think Canada could do useful work in rethinking the whole problem of proliferation, because I do believe that the existing non-proliferation regime is crumbling around the edges, and doing more of the same will probably not keep it together.

Do I have a quick fix? I do not. But I do think that there's plenty of talent in this country in official and non-official circles to take a serious look at this. That's my recommendation.

The Chairman: M. Le Bouthillier.

[Translation]

Mr. Yves Le Bouthillier: I must say that I don't have any solution or quick fix either. I think that Canada must go farther and respect the spirit of the Court's opinion—that is make a commitment toward disarmament and build alliances with States that share this objective.

For the time being, following the opinion of the Court, Canadians need to know clearly from their government whether we are going to maintain the status quo—that is not encourage proliferation—whether we will continue under the NATO nuclear umbrella, with a doctrine of deterrence, or whether we are going to be more actively involved in disarmament. Essentially, we must decide between what is realistic and desirable for humanity, because this does not involve Canada alone. Is it a question of thinking that we will always live with nuclear weapons, or is complete disarmament possible?

I don't think the Canadian government has given a clear signal on this issue so far. I think that despite its many ambiguities, the opinion of the Court leads us to ask the question, to make a choice and to live with the consequences of it.

[English]

The Chairman: Thank you.

• 1100

Just following Ms. Augustine's point, Mr. Buteux, if I could just understand you.... It seemed to me Ms. Mason is clearly saying, and also the professor, that whether one links the World Court decision to it or not, the NATO position on first use and the uncertainty that is accompanying it lead to the danger of the use of nuclear weapons, which then of course would mean a violation of international humanitarian law and the other consequences that would follow it.

Do I understand you to be saying that, from a practical point of view, the uncertainty and the nature of the first-use doctrine by NATO in fact preserves and ensures against the use of nuclear weapons precisely because it creates a sort of strategic uncertainty, and that the committee will not only be called upon to rule on a moral issue but also be asked, to some extent, what's a practical thing, because we don't want to see the use of nuclear weapons?

I assume that the NATO advocates will be telling us, look, this is the best way to ensure no use of nuclear weapons—whereas Ms. Mason is going to tell us, no, this is leading us down a dangerous path.

I just want to make sure that I'm paraphrasing you correctly. Are you of the camp that would say that the present position of NATO in fact is the best guarantee against the future use of nuclear weapons?

Mr. Paul Buteux: I'm glad you asked me the question, but I don't recall actually ever mentioning NATO in anything I have said. I don't think I've addressed that issue.

The Chairman: I'm sorry, but when you told us not to play around in theory, I sort of assumed you were telling us, don't jump in and rock the NATO boat.

Mr. Paul Buteux: I'm agnostic on the first-use question, because, quite frankly, it's always struck me that no-first-use declarations are as meaningful or unmeaningful as the air it takes me to expend to say “no first use”. By and large it's an irrelevancy, other than perhaps kind of making us all diplomatically feel good.

If you want another set of hearings, on why NATO has nuclear weapons, I'll be happy to come down and write you a brief.

The Chairman: Okay.

Mr. Paul Buteux: No first use I don't think is that terribly important in NATO at the present time. There aren't any targets for those weapons. They're there for symbolic purposes. They're there in fact to meet the very different political needs of the French, the British, the Americans, the Germans and some others.

In my view, NATO doesn't have a strategy for nuclear weapons these days. It has nuclear weapons and there are other reasons for having them, but it doesn't have a strategy.

The Chairman: Okay, I'll just synthesize your position as that of Dean Acheson when he said there are issues over which international law has nothing to do with it. I think that was the quote he used in the Cuban missile crisis. I take it that's your position as well.

Mr. Ted McWhinney: He used the term “survival of the state”, which everybody else is using without acknowledgement, in 1963.

The Chairman: We are going to have to take a break, members of the committee, before we move to the next session. Before we do, there is a procedural issue we have to come to grips with. I'm going to ask Mr. McWhinney to speak to it, but maybe I can quickly set it out.

The procedural issue involves two potential issues. We can do both of them at once or put one off. The questions are two.

First, should we hear on Thursday from our own government officials in camera in the view that we will obtain more information from them from that, or do the members of the committee believe that that discussion should be in committee?

The second is that Mr. Laverdure, who will be coming to us on the Algerian issue, has also expressed a view that his evidence would be more useful for the committee if it were in camera. That would be on February 17. That decision also must be made. If it's going to take too long, I will not have that discussion held today, because we don't have time. We'll be keeping Ambassador Gooch.

First we must deal with the NATO issue. Procedurally it is possible. We will have four witnesses on Thursday. We could split them and have the two government officials in camera and then have the two non-government officials in open session, or we can have everybody in open session. That issue must be dealt with, and it must be dealt with now, before we move on to the next issue.

Mr. McWhinney, perhaps you could speak to that issue, and then the other members might want to.

Ms. Jean Augustine: Are we dismissing the witnesses?

• 1105

The Chairman: I'm sorry, yes. We're not breaking this session yet, but if the witnesses would like to leave the table, they may.

We promise not to ask your opinions or views on this issue. Thank you very much for coming.

Thanks, Ms. Augustine, for reminding me of that.

On the procedural issue then, Mr. McWhinney....

Mr. Ted McWhinney: On the procedural issue, departmental witnesses do not necessarily themselves ask for confidentiality, but there are policies. They are not necessarily fixed in stone, but the situation at the present is that we have these witnesses available on these conditions. We can use them or we can decide not to use them. It's as clear-cut as that.

I am in discussion on more long-range issues as to the policy, but we're not in the position, as they say, to change the ground rules at this stage. So the witnesses are available on that basis. If we don't wish to hear them, they will understand that and politely accept it, and we won't hear them on that basis.

For the long range, I have taken note of the views of all members of the committee, and there are ongoing discussions.

The Chairman: I take it the position would be then that they should be in camera if we are going to hear the departmental officials. There's no position on the other two.

Mr. Ted McWhinney: No. The witnesses are prepared to appear in camera according to the ground rules laid down for them. If we don't wish to hear them on that basis, then of course they would understand and not appear.

[Translation]

Mr. Daniel Turp: I don't understand very well. They will be present if the meetings are held in camera, but they will not be present if we do not meet in camera.

Mr. Ted McWhinney: It is quite possible that they may agree to testify in public, but we might expect they would be somewhat reserved. Thus, the testimony could be quite different. We could theoretically schedule many other public meetings on this point, but for the moment, this is clearly the choice.

The Chairman: Mr. Turp.

Mr. Daniel Turp: Mr. Chairman, the other day, we heard one of Canada's ambassadors, Mr. Moher, in camera. He did not say anything that he could not have said in public. I find in camera meetings pointless. Because of that in camera meeting, the committee was criticized, and justifiably, in my view. We know the officials from the Department of Foreign Affairs. Too often, and this may be because of the job they do, they are very careful in what they say.

I fail to see what they could tell us that would not be of public interest, because they are accustomed not to say what they think or not to say what they cannot say, even when they are speaking to members of Parliament. The committee will be criticized once again, quite rightly in my view, by people who want our proceedings to be as open as possible. And since the NATO issue is one of the most important issues, I do not see the point of holding the meeting in camera. The officials will say the same things to us as they would say in the presence of a few NGO representatives, or other university or student groups.

[English]

Mr. Ted McWhinney: It's a matter of general government policy. The Department of Foreign Affairs is in a special position. The people are extremely competent in what they express and their use of language, but we cannot make a change in relation to our ministry without necessarily engaging other ministries.

I agree with you in relation to Ambassador Moher: he's a man who has perfect control, choice of words, and the like. We are working on this. It's possible, however, in relation to Mr. Laverdure, that there could be other considerations, because what he's dealing with is highly political too.

• 1110

The Chairman: It's most important that we not engage in this discussion for too long, just because we have Mr. Gooch here and we only have until 12 o'clock. I think we could get to a rapid decision one way or the other.

Mr. Assadourian wants to speak to the issue.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): I'd just like a clarification. When we say in camera, it means there is no record of discussion and it's not broadcast, does it not?

The Chairman: A record is kept of the discussion, but it is not on radio and it is not in public.

Mr. Sarkis Assadourian: It doesn't forbid me from repeating outside what the witness said, so what's the point?

The Chairman: No, it's understood that when we have a meeting in camera, the purpose of having it in camera is that members will receive sensitive information that will enable them to do their job. If everybody's just going to go out and repeat it outside the room, then there's no point. But we've never had that problem in this committee. Members have always respected the confidential nature, because we recognize that if we don't respect that, in the end we won't get any information that anybody feels is sensitive. The members recognize that's the nature of what we're doing.

What we're being told by the parliamentary secretary, as I understand it, is that in his judgment and the department's judgment, there is sensitive information that they feel the committee should have but that is not public. We have to make a decision as to whether we wish to hear that or not.

Mr. Ted McWhinney: Yes, without excluding long-range decisions.

The Chairman: Without excluding the opportunity of hearing later issues, etc. But it would only be that part of the hearing that deals with the two departmental witnesses. Obviously the other two opinions from the professors who will be coming will be totally open, as normal.

I'd like to put the vote on this issue.

[Translation]

Mr. Daniel Turp: I want to make sure I understand that we're discussing just the testimony of two experts from the Department, not Mr. Laverdure's testimony.

The Chairman: No, not for the time being. We will have to come back to this matter, because we are out of time.

Mr. Daniel Turp: All right. So we're just talking about these two experts.

The Chairman: On the NATO issue.

[English]

Do I need to have a vote? Mr. Mills, do you want to have a vote?

Mr. Bob Mills: No, I'm fine with that.

The Chairman: Mr. Turp, do you want to have a vote?

Mr. Daniel Turp: Yes, a vote.

The Chairman: Okay. Those in favour of hearing in camera the two departmental witnesses who will come on Thursday morning and the other witnesses in normal procedures?

(Motion agreed to)

The Chairman: Thank you very much.

We'll take a two-minute break. I believe I heard a cry for that in order to allow our witness, Mr. Gooch, to come to the table.

The meeting is adjourned for two minutes and we'll ask Ambassador Gooch to please come up. Thank you very much.