| Summary: | The subject of this research is “South Africa’s Voluntary Relinquishment of
its Nuclear Arsenal and Accession to the Treaty on the Non-Proliferation of
Nuclear Weapons in Terms of International Law”. The research found that
international law considerations did indeed play an important role in
guiding South Africa’s relinquishment of its nuclear arsenal, and in
accession to the NPT.
The dissertation was conducted by interviewing an expert sample of the
key persons who were actually involved with, and led, South Africa’s
relinquishment of its nuclear arsenal and accession to the Treaty on the
Non-Proliferation of Nuclear Weapons. The decision to interview the
expert respondents was followed in order to understand the respondents’
animus or state of mind, and the logos of the decision to relinquish the
nuclear weapons and accede to the NPT.
The study sample included:
• Mr FW de Klerk, former President of South Africa, who instructed
that the nuclear arsenal should be relinquished, and that South
Africa should accede to the NPT;
• Professor Wynand Mouton, whom Mr de Klerk appointed as the
Oversight Auditor of South Africa’s nuclear relinquishment and its
accession to the NPT;
• Professor Waldo Stumpf, who successfully project-managed the
nuclear relinquishment process, and brought accession to the NPT
into reality;
• Mr Pik Botha, who was South Africa’s longest-serving Minister of
Foreign Affairs, and who later held the portfolio of Minister of
Energy. Mr Botha was personally involved in leading many
important international negotiations that pertained to South Africa’s
nuclear status over some decades; and
• Dr Neil Barnard, who was Director of South Africa’s National
Intelligence Service at the time.
An important and new research finding was that all of the respondents
indicated that the reason the nuclear weapons were relinquished and
South Africa acceded to the NPT was that the relinquishment of these
weapons and the accession to the NPT were symbiotically interconnected
with the constitutional settlement in South Africa. For the respondents, it
was a causa sine qua non of the international acceptance and recognition
of South Africa’s non-racial constitutional settlement. The respondents
were ad idem that it would have been well-nigh impossible to have
achieved a peaceful constitutional settlement which was internationally
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legitimate without relinquishing these weapons and acceding to the NPT
prior to the conclusion of the constitutional negotiations.
Had South Africa held onto this nuclear arsenal, it would have created
international mistrust, because it would have begged the question (petitio
principii): “What is the purpose of their retention?” The perpetuation of the
nuclear weapons programme would have created international doubt as to
the sincerity of the constitutional transition and contributed to the
continued recognition of South Africa as a pariah state.
This finding has not been reported in the literature and is therefore a new
contribution to knowledge about South Africa’s constitutional transition.
Although not publicly visible, the relinquishment of the nuclear arsenal and
South Africa’s accession to the NPT were purposively linked, and indeed
synchronised, with the constantly changing status of the constitutional
negotiations – ratione temporis.
The link between the relinquishment of the nuclear arsenal and the
accession to the NPT was purposefully kept secret. This was because it
was reasoned that the matter of South Africa’s design of a nuclear
arsenal, its possession of these weapons, its dismantlement of these
weapons, and its accession to the NPT formed such a potentially
contentious matter, both nationally and internationally, that it could easily
have thrust the entire constitutional transition into jeopardy. For this
reason it was decided (wisely, in the researcher’s view) to address the
matter of relinquishment and accession to the NPT in camera. It was
conducted in camera because the security of the state was at stake. The
testimony of the respondents made it clear that this subject was
sufficiently incendiary to have derailed the constitutional negotiations and
settlement, and plunged the country into chaos.
The research discovered that the reason the decision was reached to
relinquish the nuclear arsenal and accede to the NPT was to ensure that
South Africa was recognised as a constitutional democracy and a
respected member of the international community of nations. The mission
was conducted in order to achieve state succession in a stable framework
of constitutional continuity.
The research also discovered that a number of the countries that have
relinquished their nuclear weapons and acceded to the Treaty on the Non-
Proliferation of Nuclear Weapons did so because of the imperative to
create a positive state recognition status amongst the international
community. Had South Africa retained the nuclear arsenal during the
constitutional negotiations, and afterwards, it would have tainted and
jeopardised the state succession and the constitutional continuity of the
country. It would have endowed the government-in-waiting with a
poisoned chalice and undermined Mr Mandela’s stature as a leader. The
decision was made by Mr de Klerk and conducted in good faith insofar as
all stakeholders were concerned.
Comity was displayed by the National Party towards the African National
Congress – the regime-in-waiting – in order to endow it with the
opportunity of becoming a successful government. The research found
that Mr de Klerk, together with his team, carefully reconciled and
harmonised South African municipal law with international law in order to
obviate a conflict of laws. This harmonisation of law was important in
establishing respectful relationships and comity with the International
Atomic Energy Agency, which is an organ imbued with international legal
personality under the United Nations Charter, and with the international
inspectors, including those from inter alia the United States, Russia, the
United Kingdom, China and France.
The expert respondents were all in consensus that South Africa could
never have lawfully deployed the nuclear weapons in any conceivable
military conflict, including in the case where the very existence of the
South African State might have been at risk. They unanimously expressed
the opinion that such usage would have constituted a mala in se and been
contrary to natural law and peremptory norms of humanity. The principles
of jus cogens and erga omnes permeated their assessment of the legality
of any usage of nuclear weapons.
The respondents were also in agreement that any actual use of these
weapons would be disproportionate, indiscriminate, escalatory, and would
not be able to discern friend from foe, and therefore would be contrary to
international humanitarian law. The usage of a nuclear bomb would have
been a threat to world peace in terms of the United Nations Charter, which
might have justified a United Nations-sanctioned military invasion of South
Africa to counteract such a threat to world peace, as was the case when
Iraq invaded Kuwait.
The interviewees were in consensus that if the nuclear weapons had been
deployed, they would have escalated conflict, and created an international
reprisal risk with potentially disastrous consequences for South Africa, the
region, and indeed for the world at large. The research sample further
indicated that any operational use of these nuclear weapons would have
created disproportional consequences, which would, by deduction, have
contravened inter alia: the Geneva Conventions, the Hague Regulations
Conventions, the Kellogg–Briand Pact (1928), the Martens Clause, and
therefore international humanitarian law.
It would have raised the question of state responsibility for wrongful
actions, which would also have included contraventions of international
environmental law caused by trans-boundary nuclear pollution. Individuals
committing wrongful actions could not have pleaded immunity from such
wrongfulness by claiming immunity under South African municipal law.
The respondents subscribed to a positive law interpretation of the legality
of nuclear deterrence, which is the position that the Nuclear Weapons
States have assumed. In its essence, this positive law view subscribes to
the principle contained in the Lotus case, that what is not prohibited ispermitted. Natural law and positive law have oppositional reasoning as
regards the legality of nuclear weapons, and this logical tension was
evident in the research. The respondents revealed a difference of opinion
as far as their understanding of the legality of the development,
possession, testing and deterrence versus actual usage of nuclear
weapons is concerned. They were of the view that any military usage or
nuclear test would be illegal, but regarded the development, possession
and deterrent usage of nuclear weapons as being lawful.
The relinquishment process and accession to the NPT was conducted as
a secret set of negotiations contiguous with the constitutional negotiations.
It is a fact that the African National Congress was not informed about
these negotiations until Mr de Klerk issued his formal announcement
about the relinquishment and accession to the NPT on 23 March 1993. Mr
Mandela was therefore presented with the reality of relinquishment and
accession as a fait accompli.
South Africa’s rollback is compared with the relinquishment process in Iraq
in an attempt to discover whether insight and knowledge from the South
African case might be transferred and applied to other countries that are
contemplating the same actions. The provisional answer to this question is
that partial aspects of the knowledge that was created in South Africa
might possibly constitute elements of precedent.
The application and transference of this knowledge would always need to
be tailored to the unique context, facts and circumstances that might
prevail in the transferee state in question. Most certainly all nuclear
relinquishment and accession processes need to be conducted as
extremely serious projects and in good faith.
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