Disarmament Diplomacy

The 2005 NPT Conference in Crisis:
Risks and Opportunities

Rebecca Johnson

The Seventh Review Conference of the States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) will be held in New York, May 2-27. Predictions are generally pessimistic, with suggestions that the outcome will either be an anodyne document based on the lowest common denominator of what the United States can be persuaded not to veto (i.e. with no endorsement of the CTBT, verifiable fissile materials treaty or the 'thirteen steps' on nuclear disarmament and nonproliferation agreed by the 2000 Review Conference); or that the conference will be divisive and bad-tempered, and will fail to adopt any agreements whatsoever.

Such analyses tends to miss the major point: what is at stake is not the fate of a document or conference, but the future of international security. So instead of panicking about the 'crisis', we need to focus on the risks and responsibilities facing the international community and be prepared to find creative and flexible mechanisms for getting at least some useful agreements through.

There are five key challenges confronting the nuclear nonproliferation regime:

• apparent ease of withdrawal from the treaty;
• institutional weaknesses for implementing the treaty and ensuring compliance;
• nuclear doctrine and disarmament;
• the relationship between the nuclear fuel cycle and acquisition of nuclear weapons; and
• safety and security of weapons, materials, technology and facilities.

They are not in any particular order, since all are important and interrelated. There are also other important issues, such as universality and promotion of a nuclear weapon free zone (or zone free of weapons of mass destruction) in the Middle East, as emphasised in 1995 and 2000, but achievement of those objectives depends greatly on states outside the treaty. Though they are undoubtedly relevant to the NPT, this short essay is intended to focus on issues where the NPT states in 2005 could take responsibility themselves and move beyond traditional rhetoric, if they so choose.

While I, like many observers, am inclined to be sceptical of whether major NPT players are politically willing to address the five core issues identified above more effectively than to date, that should not stop us exploring the options and trying to make a difference.

Nonproliferation efforts are faced with a conundrum. Those who are playing fast and loose with the NPT's obligations and norms tend to argue that states make proliferation decisions for their own reasons and not because of, for example, failures by the nuclear weapon states to disarm or the creeping acceptance of India, Israel or Pakistan into the nuclear club. Or even, some would aver, North Korea. For some, that's where the line needs to be drawn, on the basis that North Korea and Iran acceded to the NPT as non-nuclear weapon states, and so must not be permitted to go back on those obligations. For others, however, the question is not about where to draw the line, but of the overall credibility of the nonproliferation regime and whether the NPT is able to constrain proliferation well enough to meet their future security needs.

withdrawal

It appears that there is still no agreement about how to treat North Korea- is it out of the treaty or in, but noncompliant? Even if the Conference ends up preferring a procedural fix to a potentially divisive and time-consuming deliberation on this, some time needs to be spent on working out how withdrawal ought to be addressed - if only to send a deterrent signal to any government thinking of emulating the DPRK's example. A central question is whether Article X can be legally evoked by a state already under investigation for non-compliance. A second question is whether a withdrawing state is allowed to benefit from materials or technologies which were traded in good faith under Article IV. Over the past year, France, Germany and Canada have made proposals about ways in which NPT parties could respond by restricting trade or insisting that acquired materials and facilities should be returned or dismantled (though it is not clear how the latter could be enforced without the use of force). In this issue of Disarmament Diplomacy, George Bunn and John Rhinelander argue that if the UN Charter and the language and history of Article X of the NPT are considered in context, the Security Council "has clear authority to stop a withdrawal, to impose sanctions on the withdrawing NPT party or to require such a party to give up nuclear materials or equipment acquired while it was still an NPT party".

institutional weaknesses

When North Korea announced its withdrawal in January 2003, NPT parties were institutionally powerless to respond. The issue went straight to the Security Council which, for reasons connected with its internal politics, failed to respond adequately. When the International Atomic Energy Agency (IAEA) found evidence that Iran had been pursuing a clandestine uranium enrichment programme for years, its mandate allowed it to deal only with Iran's noncompliance with safeguards. Anything further required the Board of Governors to agree to send it to a divided Security Council which had already flunked the test on North Korea. In addition to the question of Security Council powers touched on above, there are several kinds of institutional weaknesses that would be relevant for NPT parties to address. First, should the NPT itself be accorded the power to hold annual decision-making meetings (as Ireland, Canada and others have argued) or emergency meetings (as proposed by Canada and Germany, among others)? If not, should the IAEA mandate be widened to go beyond safeguards? In light of the impasse at the Conference on Disarmament and the challenges to its role in negotiating verifiable treaties, is there a way to be more flexible about the rules of existing machinery or the possibilities of new machinery to negotiate instruments that would contribute towards nuclear nonproliferation and disarmament?

Addressing one particular institutional weakness ought to be a no-brainer, but there appears to be a surprising amount of resistance. After the revelations about Iraq's extensive clandestine programme in 1991, the IAEA spent three years negotiating a model Additional Protocol to strengthen its powers to inspect and investigate. It is clearly in the interests of nonproliferation that the Additional Protocol be adopted by states not only as a condition of supply, but as the standard in relation to the safeguards responsibilities required under Article III. This agreement could be instituted without any amendment to treaty text. However, some states are resistant, either because they want to avoid the additional intrusion into their own nuclear programmes or for reasons of principle, because they view this as imposing yet more obligations on the non-nuclear weapon states, while the weapon states are let off with much weaker - and voluntary - inspections. Both kinds of objection could be addressed with the help of political willingness from both sides, but it remains to be seen whether that will be forthcoming.

nuclear doctrine and disarmament

The High Level Panel on Threats, Challenges and Change, which reported to the Secretary-General in December 2004, stated: "Lacklustre disarmament by the nuclear weapon states weakens the diplomatic force of the nonproliferation regime and thus its ability to constrain proliferation." By contrast, the weapon states tend to argue that their nuclear weapons are not a security problem and that proliferation by others has nothing to do with what they do or don't do. While it may be true that there is no direct causal connection between the decision-making of a proliferator and the policy decisions of the nuclear weapon possessors, there are indirect and, in some cases, regional consequences that are far-reaching.

By holding open their own options, the weapon states contribute to a permissive climate that underscores the limits of nonproliferation, as distinct from prohibition. The continual equating of nuclear weapons with deterrence, which advertises a desired military utility and security value, also evokes indirect incentives such as prestige and regional power projection. Paradoxically perhaps, but no less worryingly, nuclear weapons are becoming viewed as the currency necessary for being taken seriously by the United States. It is in this context that loose talk about keeping open options for new nuclear weapons or replacements for ageing systems clearly undermine nonproliferation efforts.

A lot of rhetoric get expended on both sides of the nuclear disarmament debate. Most of the nuclear weapon states will report on how they have drastically reduced the quantities of weapons and explosive power at their disposal since the end of the cold war. This is true and they will no doubt wax indignant that they are not sufficiently applauded. The non-nuclear weapon states, however, will raise questions about nuclear doctrines - the emphasis placed on the right to use nuclear weapons in retaliation or if threatened with biological or chemical weapons, for example - and new nuclear weapons being considered for nuclear arsenals. These two conversations are being conducted past each other, giving rise to frustrations and misunderstandings on both sides. In cutting numbers, the weapon states are reducing some of the dangers, and that is of course welcomed. But if at the same time they assert the importance of their nuclear deterrents and keep the modernisation of their arsenals on the agenda, the non-nuclear weapon states are entitled to distrust the lip-service being paid to Article VI.

Imagine a heavy smoker whose family regard it as important for their collective health and security that he give up. Instead, he cuts down from 80 cigarettes a day to 20, while extolling the pleasures of tobacco. While the reductions are undoubtedly an improvement, and should be welcomed, he hasn't yet made the qualitative, psychological commitment to becoming a non-smoker. In terms of the wider impact, the smoker's children are still witness to the pleasure or whatever he appears to think he gets from cigarettes, and in that context, the fact that it's now only 20 not 80 a day doesn't make much difference. The family are still forced to live in a smoking environment, even if the dangers of second-hand inhalation have been reduced somewhat.

Until all sides recognise that they are talking past each other because quantity and quality are two very different (albeit intersecting) axes, the Article VI debates will continue to be unproductive. The keys to whether any commitment to disarmament is genuinely meant are to be found in nuclear policy and the military doctrines governing the use of nuclear weapons. Until those reflect the recognition that we're better off without nuclear weapons, sustainable nonproliferation will remain elusive.

nuclear fuel cycle

Iran's uranium enrichment programme and North Korea's plutonium separation have focussed the world's spotlight on the nuclear fuel cycle as never before. I tend to the view that in terms of development and environmental security, even with the growing threat of global warming there are better energy options than nuclear. Nevertheless, there are too many vested interests in nuclear power for a debate about the appropriateness of nuclear energy per se to get much of a hearing at the 2005 Review Conference. The most proliferation-sensitive technologies, however, will be discussed, though agreement is likely to be very difficult to achieve.

From IAEA Director-General Mohamed ElBaradei to President George W. Bush, proposals have been put forward ranging from a moratorium on enrichment and/or reprocessing, to the internationalisation (or multilateralisation) of nuclear fuel cycle facilities and products to proclude any new national fuel cycle facilities from being built or operated. The various options fall into two different categories: nondiscriminatory approaches, in which whatever constraints are adopted would apply across the board; and what British officials call the sheep-and-goats approaches, in which distinctions are made between those states deemed to pose a security risk or to be violating certain criteria, and those deemed to be responsible, and therefore okay. There are pros and cons in both approaches. Inevitably, Britain, France, Brazil and Japan, to name a few, would prefer to carry on with their own enrichment or reprocessing activities. Also inevitably, Iran claims that it merely seeks to do the same (though a key difference is that Iran did not declare its enrichment facilities to the IAEA until forced to through exposure).

It is widely agreed that highly enriched uranium and plutonium are the most proliferation-sensitive materials and that reprocessing and uranium enrichment above a certain level are not necessary for peaceful nuclear energy; nor can they be justified on economic or environmental grounds. Since it is likely that only a nondiscriminatory approach would be sustainable over the long term, those wishing to keep all their own enrichment and reprocessing options open need to ask themselves a difficult question concerning the costs for nonproliferation. In other words, how serious are they about the need to prevent future proliferation? If the only way to constrain new proliferators was by restricting enrichment and reprocessing for everyone, would they be willing to accept constraints on their own ambitions?

safety and security

Issues of safety and security range from 'loose nukes' and inadequately safeguarded facilities and materials, to the A.Q.Khan network and efforts to keep nuclear materials and technologies out of the hands of proliferant states and non-state actors. The principles and practices of the Cooperative Threat Reduction (CTR) programme should be extended, the transshipment of nuclear materials needs to be urgently rethought, and countries must take far more responsibility for controlling their own arms dealers and related industries. The exposure of the Khan network implicated British, Malaysian, German and South African companies, among others. Related to this, though the Proliferation Security Initiative (PSI) remains highly controversial, UN Security Council Resolution 1540 should be welcomed, despite its manifest flaws, as it plugs the legal and enforcement gap with regard to national compliance measures and non-state actors. Though the impulse behind UNSC 1540 was counterproliferation, it links the biological and chemical weapons regimes (based on prohibition and a growing taboo) with nuclear, putting policing measures into a wider, consensual regime context.

Reflections

In a recent interview with the Arms Control Association, US Assistant Secretary of State Stephen Rademaker said: "The thirteen steps do not encapsulate the obligations of Article VI in the NPT. The obligations of Article VI are encapsulated in Article VI." Such thinking is not only dangerously myopic if we want to see a progressive strengthening of the NPT-regime, but legally incorrect. While the treaty text provides the essential framework and foundation, consensus agreements by states parties contribute to meaning and understandings, just as case law and precedent contribute to statutory laws.

As reported in Disarmament Diplomacy 78, two eminent British lawyers concluded that "A Declaration of a Review Conference such as that adopted by consensus [in 1995 or 2000] would fall within the wording of article 31 (3) (a) [of the Vienna Convention on the Law of Treaties (VCLT)] and is thus an appropriate source of interpretation of the obligations of the NPT." This should give hope to those who want to see the NPT strengthened over time through a process of agreements that reflect changing conditions. The point is to build on relevant agreements like those adopted in 2000, not throw them aside and start over every five years.

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