Disarmament Diplomacy

PrepCom Opinion: Farewell to the NPT's Strengthened Review Process?
by Tariq Rauf

A mere three years after the indefinite extension of NPT in 1995 - which was only made possible as a result of a package of decisions comprising a "strengthened review process", "principles and objectives for nuclear non-proliferation and disarmament", and a related resolution on the Middle East - the much vaunted strengthened review process sputtered to an end at the second session of the Preparatory Committee (PrepCom) for the 2000 NPT Review Conference.

The nuclear-weapon States (NWS) which already had started backtracking from their commitments under the decisions agreed at the 1995 NPT Review and Extension Conference (NPTREC) even before the conclusion of that conference, continued with their undermining of the implementation of a strengthened review process at the 1997 and 1998 PrepCom sessions - notwithstanding their concession in agreeing to devote roughly equal time for discussing procedural and substantive issues. Thus, while the 1997 PrepCom managed to agree (with one reservation) on a report including a "Chairman's Working Paper", the 1998 PrepCom fell apart over disagreements on several crucial issues. First, the NWS as a group rejected any effort directed at enabling the PrepCom to generate an agreed text reflecting current nuclear non-proliferation and nuclear disarmament priorities. Second, the NWS rebuffed all attempts to structure the discussion at the 1999 PrepCom, as well as recommendations to the 2000 Conference, on setting aside time for discussion on specific items, such as nuclear disarmament, security assurances, or the Middle East resolution. Third, the NWS interpreted Decision 1 of the NPTREC, on a strengthened review process, in a progressively narrow manner, to the effect that in their view the PrepCom could not report on anything except making procedural preparations and formulating draft recommendations for the next review conference. Fourth, the NWS consistently opposed any and all initiatives made by the non-nuclear-weapon States (NNWS), for deepening the strengthened review process, to promote permanence with accountability.

This systematic backtracking from the commitments made at the 1995 NPTREC was seemingly led by the United States with the other NWS expressing solidarity en bloc. Statements on the NPT review process made by US representatives beginning in the fall of 1996, and continuing through the 1997 and 1998 sessions of the PrepCom, stressed the requirement for a "structured and balanced" review of the Treaty. While this meant that nearly half of the time would be devoted to discussion of substantive matters under the traditional three clusters derived from the main committees at review conferences, and subsuming the seven subject headings under the "principles and objectives", the end result for the most part was the delivery of monologues by States taking the floor in the general debate rather than engaging in dialogue addressing key issues.

To its credit, the United States delegation (reportedly after stiff inter-Agency battles in Washington) made detailed statements and put out a lot of information on its nuclear weapon dismantlements and its implementation of the Treaty. This level of openness and transparency was emulated to lesser degrees by the other NWS. The problem, however, lay in the US (and NWS) interpretation that making detailed statements in the PrepCom met the requirements of the implementation of Decision 1 of the NPTREC, and, other than making procedural preparations and compiling a roster of draft recommendations contained in the Chairman's report, nothing else remained to be accomplished.

Practical and moderate suggestions made by countries such as Canada for the PrepCom to produce a rolling report capturing common concepts on the implementation of the Treaty and recording agreed views on NPT-related issues requiring urgent attention (such as ratification and implementation of START II, and commencement of negotiations on a FMCT) (1); and recommendations proposed by South Africa on possible products of the strengthened review process, on setting aside specific time at the 1999 PrepCom to discuss NPT Article VI issues as well as security assurances (2); were rejected by the United States and the other NWS on the grounds of exceeding the mandate of the PrepCom which was interpreted as focusing solely on procedure and building upon paragraphs 3 and 4 of the Chairman's Working Paper from 1997 and as updated in 1998.

Strengthening the Review Process

It is useful to recollect that the original concept of a "strengthened review process" in the context of the extension decision, was first elaborated in a Canadian "non-paper" in early 1995 (3), which outlined the characteristics of an "enhanced review process" as comprising, inter alia:

1. retention of the current structure of review conferences (i.e. three main committees to discuss the implementation of the Treaty and ways of strengthening it);
2. investing the preparatory process with a more substantive character (i.e. discussion of both procedural and substantive issues);
3. elaborating, at Review Conferences, indicative targets for compliance with given articles of the Treaty; and
4. establishing a framework for ways of strengthening the Treaty and its implementation.

South Africa, together with Canada and other States, further developed these concepts in the President's Consultations at the NPTREC, eventually resulting in the package of extension decisions. The term "strengthened" review process, in Decision 1 (4), was proposed by Ambassador Adolfo Taylhardat (Venezuela), who prevailed in arguing that "enhancing implied only 'cosmetic' changes and that what was required was a process that should lead to a full implementation of the NPT, having in mind, specifically, Article VI." (5) At the NPTREC a political compromise was reached between those States which feared that in indefinitely extending the NPT the NNWS would lose their leverage as regards the NWS' nuclear disarmament obligations, and the States which preferred an unadorned extension of the Treaty without any collateral measures to complement the future implementation of the NPT. Thus, the compromise was not only to make all States parties accountable for full compliance with the provisions of the Treaty, but more specifically to hold the NWS to fulfilling their Article VI commitments on nuclear disarmament.

Traditionally, the Preparatory Committee for previous review conferences dealt primarily with procedure involving logistical and legal issues, however, substantive matters were also routinely discussed. In particular, the final two sessions of the PrepCom for the 1995 NPTREC involved lengthy and intensive discussion on substantive issues. Decision 1 served to formalize the inclusion of substantive matters, along with procedural issues, in the work of the Preparatory Committee, and clearly specified that:

"The purpose of the Preparatory Committee meetings would be to consider principles, objectives and ways in order to promote the full implementation of the Treaty, as well as its universality, and to make recommendations thereon to the Review Conference. These include those identified in the Decision on Principles and Objectives for Nuclear Non-Proliferation and Disarmament adopted on 11 May 1995. These meetings should also make the procedural preparations for the next Review Conference." (6)

Thus the "intent" of the NPTREC was to transform the review into a more credible and meaningful process of accountability for the Treaty's implementation by all States parties, and for future reviews to encompass the full scope of the disarmament and nonproliferation agenda. The record of the 1998 PrepCom, in particular, suggests that the scope of the strengthened review process has been severely curtailed by the NWS, who prefer a pre-1995 'business as usual' approach.

The Principles and Objectives

Until last year, it was thought that faithfully interpreting and implementing Decision 2 (7), on principles and objectives for nuclear non-proliferation and disarmament, would pose a greater challenge than the implementation of Decision 1. However, recent events suggest otherwise. PrepCom 2 failed, in part, because the NWS did not want a substantive discussion on nuclear disarmament or to provide an opportunity to the NNWS to call to account the implementation of Article VI. This stalemate parallels that in the Conference on Disarmament over the past two years.

While there seems to be general agreement among NPT States that the 1995 "principles and objectives" should stand the test of time and that new ones should be generated at the 2000 Conference, opinion remains divided whether or not the PrepCom can make recommendations on a new draft for 2000. Paragraph 4 of Decision 1 clearly stipulates that the "purpose of the Preparatory Committee meetings would be to consider principles, objectives and ways in order to promote the full implementation of the Treaty, as well as its universality, and to make recommendations thereon to the Review Conference". With only 10 working days of preparations left in the 1999 PrepCom, and given the list of unresolved procedural issues, developing a new draft "principles and objectives" might well be a moot point.

Salvaging the NPT Review Process

With the strengthened review process now being reduced to a virtual dead letter, what might be done to complete the preparations for the 2000 review conference, with a view to salvaging some vestiges of a strengthened review? The only practical way forward seems to be that based on innovative yet practical initiatives - i.e. devising qualitatively new modalities to promote the review and implementation of the Treaty, in accordance with the NPTREC package of decisions and associated resolution.

In 1995, a small number of States that were committed to the continuing viability of the NPT were successful in establishing unprecedented new parameters which were captured in NPTREC Decisions 1 and 2. A similar effort is now required to ensure "permanence with accountability" of the NPT - an effort that once again explores unprecedented measures - and stretches the parameters of the debate. These might include, for example: redefining the consensus rule; revising the structure of the review process; refocusing the role of the depositaries; and augmenting the role of the chairs.

Redefining the consensus rule

According to the traditional rules of procedure governing the conduct of review conferences, decisions shall be reached by consensus. Should consensus not be reached, voting could be called for under certain circumstances. Given the failure of the 1998 PrepCom, and the record of failures at previous review conferences to produce a consensus final report, perhaps it would be opportune to learn from past mistakes and to amend or adapt the rules for decision-making.

Consensus could be redefined as consensus minus five or ten, i.e. with 186 States parties consensus could be deemed to have been achieved if all participating States (at PrepCom sessions and at review conferences) agree to a common text except for a very small number (say five to ten which desist from joining the rest). Procedural and factual reports could be issued under the authority of the Chairman, while recommendations promoting the full implementation of the Treaty could be agreed based on a revised consensus rule. The disadvantages of such an approach might be that the NWS and some of their allies could end up in this small group of five to ten whose views would be over-ridden in the interests of the rest. However, the risk of being over-ridden might well result in a more productive exchange of views between the NWS and the NNWS possibly resulting in compromise forward-looking text.

Revising the structure of the Treaty review

Since 1985, NPT review conferences have structured the review of the Treaty into three main committees - broadly dealing respectively with nuclear non-proliferation and disarmament, safeguards and export controls, and cooperation in the peaceful uses of nuclear energy. This three main committee structure was devised by the US, for the 1985 review conference, in part to provide a committee for the Eastern group to chair. The division of work between the three main committees tends to overlap in places and has not proven especially efficient or conducive to generating agreed reports. Indeed three of the previous five NPT review conferences have failed to agree on final documents, while the 1985 conference only agreed on a report that reflected fundamental differences in views between States parties.

NPTREC Decision 1, in its wisdom, retained the existing main committee structure but recommended discussion of the issue of overlap, and also recommended the establishment within the main committees of 'subsidiary bodies' or working groups to provide focused consideration of specific issues. Decision 1 empowered the PrepCom to recommend the creation of such subsidiary bodies for each review conference. This recommendation for subsidiary bodies merely regularized past practice at review conferences, where working groups or 'friends of the chair' would break off from the main committees to resolve differences on specific items, such as rules of procedure, security assurances, and export controls at the 1995 NPTREC. It was noteworthy that at the 1998 PrepCom, the NWS rejected attempts to draft recommendations on setting up such bodies at the 2000 review conference. The 1997 PrepCom contributed to further complicating the structure of the review process by creating "clusters" based on the allocation of work of the main committees and then subdivided the "clusters" according to the seven headings under the "principles and objectives". Instead of contributing to a "structured and balanced" review this procedure introduced imbalances between the "clusters" even though each of the three "clusters" would be given equal time.

A common sense approach to a revitalized review of the Treaty suggests an article by article approach, factoring in the relevant preambular paragraphs. Such an approach could facilitate a structured and balanced review of the Treaty, and provide greater focus on those elements of the Treaty requiring further effort at promoting full implementation. The 1999 PrepCom could recommend a revised structure for review to the 2000 Conference, which forum would have the power to adopt a decision governing its methods of work.

Refocusing the role of the depositaries

The NPT established the precedent for reviewing the operation of the Treaty. NPT article VIII.3 provided authority for the first review conference to be held in Geneva five years after its entry into force. At intervals of five years thereafter, further review conferences could be convened at the request made to the depositaries by a majority of States parties. Since 1975, NPT review conferences have been convened every five years. NPTREC Decision 1, however, reinterpreted article VIII.3 to the effect that review conferences shall continue to be held every five years in perpetuity beginning with the 2000 conference.

Traditionally the depositaries, at the request of NPT parties, made the preliminary preparations for review conferences, and in doing so heavily influenced the structure of the reviews. As noted above, the three main committee structure was invented by one of the depositaries. Over the years, reportedly the depositaries have come to exercise a preponderant degree of influence over the chairs of the PrepCom sessions and of the main committees, as well as over the presidency of the review conferences and their bureau.

The Treaty does not invest the depositaries with any special privileges or responsibilities, save under article VIII.3 on convening review conferences, and under article IX.5 and 6, respectively, on recording and reporting accessions to the NPT and registering the Treaty pursuant to article 102 of the UN Charter. As such, the Treaty itself does not devolve any special or specific role or responsibility to the depositaries as regards the nature or the structure of the review process. However, traditionally the depositaries have exercised a lead role and the NNWS by default have allowed the depositaries to bring what could be considered as an undue degree of influence on how Treaty reviews are structured.

Under the authority of NPTREC Decision 1, review conferences have been institutionalized on a quinquennial basis and there is no longer a requirement for NPT States to request the depositaries to convene review conferences. This is now the responsibility of all NPT States parties. Thus, the depositaries no longer have any special role to play in this context.

The review process of the Treaty could benefit from the input of interested States parties, in addition to that provided by the depositaries. At the 1999 PrepCom, a recommendation could be made to enlarge the bureau beyond comprising the depositaries and the coordinators of the three political groups. The expanded bureau could include several States with a past record of contributing to the review process, and could include among others: Algeria, Argentina, Australia, Canada, Chile, Egypt, Malaysia, Mexico, Morocco, Republic of Korea, South Africa, and Ukraine. An expanded bureau could not only provide useful assistance to the chair but also reflect a broader constellation of views, that could serve to democratize the process and to potentially facilitate an improved and more productive consultative mechanism.

Augmenting the role of the Chairs

One unfortunate result of the dominant role of the depositaries is their seemingly excessive influence on the Chairs. In some cases, Chairs do not receive adequate support from their own national delegations, in other cases due to political considerations Chairs might be more receptive to the views of the depositaries, and in yet other cases intimidation and pressure might be at work. There are unconfirmed reports that in some cases Chairs engage in private consultation with the depositaries, singly or jointly, and their chairmanship, rulings and drafts then tend to be sympathetic to the views of the depositaries, to the detriment (in some cases) of the interests of the majority of States parties and the review process itself.

It would be unrealistic, except in the most exceptional cases, to expect Chairs to resist the influence or pressure exercised by the depositaries. An innovative approach might be to establish a "troika" whereby the previous, current, and future Chairs, together with an expanded bureau, meet to deliberate on issues relating to the structure and procedure of the review process. Chairs could also rely informally upon the advice and expertise of qualified NGOs and academic experts, as well as NPT anciens.

Procedural Issues at the 1999 PrepCom

The third session will face a number of challenges at its outset and it is important for both the incoming Chairman and for States parties to carefully prepare their strategies with a view to facilitating an efficient use of time, promoting flexibility and constructive dialogue, resolving outstanding matters, and ensuring measurable progress in the work of the Committee even though the realization of a strengthened review process now seems unlikely. There are now only 10 working days available to the Preparatory Committee, assuming that a fourth session in 2000 will not be held, and a number of key items still need to be finalized before the start of the Review Conference in 2000. The PrepCom has to consider and decide on items of business including:

1. nomination of the President of the 2000 Review Conference;
2. finalization of the PrepCom report on substantive and procedural issues and recommendations to the Review Conference;
3. provisional agenda of the Review Conference;
4. rules of procedure; and
5. preparation and consideration of background documentation.

In addition, the Committee at its third session may have to consider and to allocate time for the consideration of certain substantive items separately from the cluster debates, as well as to either further develop the 1997 (and 1998) Chairman's working paper(s) and the official documents submitted by delegations at the previous two sessions, or to start anew in drafting a report and recommendations. The existing documentation from the first two sessions of the PrepCom alone comprises over 100 pages with at least 50 official documents submitted by States. This documentation and inventory of proposals is "subject to review and updating" and no agreement can be reached or finalized on recommendations to the review conference "pending final agreement on all draft recommendations at the last session."

An efficient way of dealing with these documents and proposals might be to discuss and streamline them, divide by subject matter under the appropriate articles of the Treaty, or failing that within the appropriate clusters. And to discard duplicate proposals rather than introducing additional new ones for discussion in the cluster deliberations. Working groups could be established to deal with clusters of Treaty articles, or in the framework of the existing clusters, to speed up the consideration of the various issues and to facilitate progress in drafting the recommendations of the Preparatory Committee to the review conference. To promote efficiency in its work, the Committee could decide to assess the various proposals, delete duplicates, identify proposals presenting new perspectives on existing substantive issues, and focus its deliberations on producing a forward-looking "distilled compilation" of recommendations for the 2000 review conference.

In this regard, it will be important for States to show cooperation and flexibility and to avoid unnecessary ideological confrontations and to build common ground. Appropriate and careful advance preparations are absolutely necessary. It would be encouraging if the general debate could be dispensed with altogether in the third session, and for the Committee after a short cluster debate to reflect developments since 1998 to immediately move into a drafting mode to finalize its report and recommendations to the 2000 conference.

It is likely that the 1999 PrepCom will devote time to denouncing the two rounds of nuclear detonations conducted by India in mid-May, and the retaliatory tests if any by Pakistan. In this context, it would be useful to recognize that India's (and Pakistan's) nuclear tests cannot change the nuclear non-proliferation architecture. Neither India nor Pakistan, or Israel for that matter, can be recognized as NWS under the NPT. Their status continues as threshold States - pariahs as regards the NPT regime - testing does not denote any new status. On the other hand, recent developments in South Asia attest to the weakness and the hypocrisy of current non-proliferation strategies directed toward that region and to other regions. Uniform and harmonized anti-proliferation strategies need to be devised and implemented in South Asia and the Middle East.

Political Groupings

Even though the Cold War has ended and the old ideological divisions have been transformed for the most part, on international security issues the traditional regional groupings persist, despite their not being reflective of the current status of the international community. It can be said that all three regional groupings are facing internal stresses and strains. The Western group no longer represents a homogenous viewpoint, and within it a sub-group - the European Union - is emerging as a force with its own interests. Some non-nuclear-weapon States within the Western group, contrary to the preferences of their nuclear-weapon States allies and other friends, favour not only continuing but achieving greater progress in nuclear disarmament. The Eastern group rarely meets and it suffers from serious internal contradictions apparent to all. One specific contradiction is the continuing membership in this group of certain former Eastern bloc or former Warsaw Treaty Organization members, which now are in the first group of States to join an expanded NATO - the lynchpin of the Western group.

The non-aligned movement (NAM) continues in serious disarray to its own detriment and apparently while the NAM has lost coherence, common interests might coalesce on general principles, though on balance NAM cohesion cannot be counted upon. Reportedly, some 80 percent of group members do not actively participate in NAM deliberations. Nonetheless, at the 1998 PrepCom, the NAM demonstrated new-found solidarity and it will be interesting to see if this continues and grows under South African chairmanship.

Given the unnecessary tendencies toward rigidity and confrontation emanating from the obsolete Cold War driven group structure that still persists, interest-based coalitions could be formed on the basis of shared goals and involving the participation and involvement of the great majority of NPT States from across the traditional regional groupings to push for structural innovations as suggested above as a means of promoting substance and efficiency in the work of the PrepCom.

Conclusions

While NPTREC Decision 1 clearly established that the purpose of the Preparatory Committee meetings is to undertake both preparatory and substantive work for the review of the operation of the Treaty in keeping with article VIII, paragraph 3, taking into account the decisions and the resolution adopted by the 1995 NPTREC, it became painfully evident in 1998 that the NWS have no interest in or commitment to ensuring a qualitatively new strengthened review process. They clearly oppose the preparatory committee becoming a type of a "mini-review conference" as a way of ensuring permanence with accountability. Though the NWS have signed off on devoting at least fifty percent of the PrepCom's working time to statements on substantive matters, by the same token they do not want the PrepCom to engage in any substantive work other than procedural preparations and drafting a list (whether agreed or not) of recommendations to the review conference. It would not be a surprise, if at the 2000 Conference, the NWS insisted on allocating time to go through the verbiage generated by the PrepCom and resisted or delayed the formulation of a new document on "principles and objectives".

Though NPT reviews will remain intensely political due to the very nature of the critical international security issues involved, the NPT remains a nonproliferation and disarmament bargain which must be preserved and strengthened. The NPT is the only legally binding framework preventing the further proliferation of nuclear weapons while at the same time committing the nuclear-weapon States to nuclear disarmament. The package of decisions, including the Middle East resolution, agreed at the 1995 NPTREC not only created the conditions for the indefinite extension of the Treaty but also raised expectations regarding permanence with accountability. Thus all States parties were to have committed themselves to work constructively toward fulfilling these expectations in order to promote the full implementation of the NPT through a strengthened review process.

The 1998 PrepCom has effectively backed off from these commitments and expectations. Should States fail to faithfully live up to their commitments and are unable to find the common ground that ensures further progress in nonproliferation and nuclear disarmament, they risk an uncertain and insecure future. In this context, it is instructive to recall the prescient words of Ambassador Jayantha Dhanapala (President of the 1995 NPTREC): "If there is naked cynicism on the part of the nuclear-weapon States and a total disregard of nuclear disarmament commitments...then we might see not just one or two countries for individual reasons wanting to opt out...but a major threat of an exodus from the treaty using Article X.1 as an exit clause...is a very grave danger. We must never ever let the Treaty be in jeopardy, and for that there has to be progress in nuclear disarmament" (8)

The challenge surely is for the NWS in particular, as well as for all NNWS parties to the Treaty, to ensure that the dark scenario sketched out by Ambassador Dhanapala never comes to pass.

Notes and References

1. NPT/CONF.2000/PC.II/34 (Canada).
2. NPT/CONF.2000/PC.II/12 and 17 (South Africa).
3. Non-Proliferation, Arms Control and Disarmament Division, Department of Foreign Affairs (Canada), A Non-Paper on Strengthening Review Conferences, (Ottawa: March 1995), unpublished.
4. 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document: Part I - Organization and work of the Conference, Decision 1 "Strengthening the Review Process for the Treaty," (United Nations, New York: 1995), Annex, p.8.
5. Personal communication dated January 6, 1997. See also, Ambassador Taylhardat's comments in Interviews by Susan Welsh, "Delegate Perspectives on the 1995 NPT Review and Extension Conference," The Nonproliferation Review 2 (Spring-Summer 1995), p. 9.
6. NPT/CONF.1995/32 (Part I), Decision 1, paragraph 4.
7. 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document: Part I - Organization and work of the Conference, Decision 2 "Principles and Objectives for Nuclear Non-Proliferation and Disarmament," (United Nations, New York: 1995), Annex, pp.9-12.
8. Rebecca Johnson, interview with Ambassador Dhanapala (New York: 13 May 1995). See "Indefinite Extension of the Non-Proliferation Treaty: Risks and Reckonings," ACRONYM No. 7, September 1995, p. 67.

Tariq Rauf is Director, International Organizations and Nonproliferation Project, Center for Nonproliferation Studies at the Monterey Institute of International Studies (MIIS). He has served as a member of Canada's Delegation to various NPT fora. The views expressed below are purely personal and do not necessarily reflect those of the Government of Canada or any other organization.

© 1998 The Acronym Institute.

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