Disarmament Diplomacy

Looking Towards 2010:
What does the Nonproliferation Regime need?

Rebecca Johnson

Here we go again: another year, another meeting for another NPT Review Conference.

Difficult though it may be, especially after the demoralising events of the 2005 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) to raise enthusiasm for the next review process, the risk of nuclear proliferation is too grave for the international community to shirk its responsibilities. 2010 is the next benchmark for the NPT review process, but though this will be the focus of diplomacy, there is a parallel timeline that needs to be recognised - the proliferation timeline. Here, nuclear weapons are being revalued as instruments of political power projection and military coercion; and though the quantities are still being substantially decreased overall, the role and spread of these "weapons of terror" will continue to increase unless the nonproliferation regime can be rebuilt to meet the security needs of the 21st century, 40 years after the NPT was concluded.

The task facing NPT parties and civil society when they gather for the next Preparatory Committee (PrepCom) meeting in Vienna April 30-May 11, 2007 is not about agendas, special time or factual summaries, though these will no doubt appear to be the focus of many consultations and diplomatic huddles. On the contrary, these are just tools of the review process, not its objectives. The primary objective must be to use diplomacy and politics to halt nuclear weapons proliferation, to make it impossible for anyone to even think of using nuclear weapons, to devalue nuclear weapons as an instrument of defence or power projection, and to enable and oversee progress towards the total elimination of all nuclear arsenals.

The NPT is also 'just' a tool for strengthening security, albeit a very important one. It arose out of the near-disaster of the Cuban missile crisis and was the product of a cold war dominated by the rival interests of the Soviet Union and United States. It was a tool of its time; hence its first three articles contained the superpowers' main concerns - to stop anyone after China from acquiring nuclear weapons. Then followed some incentives to induce the rest of the world to sign up to this novel concept of closing the stable door after just a few horses have bolted.

The first of these incentives was contained in Article IV, which described as an "inalienable right" what Eisenhower had dubbed "atoms for peace". While undoubtedly desired by developing countries, this article reflected US and other commercial interests in persuading many more countries to buy and build nuclear power plants, promoted as the "cheap, safe, clean energy resource" for the future. And, to be fair, before knowledge about Three Mile Island, Chernobyl, the unresolved contamination and nuclear waste problems, and full realisation of how certain nuclear fuel cycle technologies can be easily turned into a basis for nuclear weapons proliferation, nuclear energy did appear to be a miraculous technology. But, though it is hailed now as a means to save the world from climate change, NPT parties need to examine more critically whether Article IV serves a current purpose as a non-proliferation incentive, wise energy resource - or whether it should rather be seen as a proliferation facilitator.

Given the hegemonic control exerted over cold war international relations by the two superpowers, it should come as no surprise that the other part of the deal, disarmament by the nuclear weapon possessors, was a belated and much watered-down concession, and that security assurances by the nuclear weapon states (NWS) not to attack or threaten to attack countries that renounced the option to develop nuclear weapons themselves was kept out of the treaty altogether. Instead, a heavily conditioned version was adopted in tandem as UN Security Council resolution 255 (1968).

Conceptually and politically, however, disarmament is crucial to the sustainability of nonproliferation. Disarmament requires that the nuclear weapon states participate in the necessary shift away from regarding nuclear weapons as an effective deterrent and great power symbol; if, on the contrary, they continue to proclaim that some nuclear weapons are "indispensable", it will be hard for leaders of up and coming nations to resist the pressure to buy into that vision, however misguided it may be.

An eroding cornerstone

It is likely that many NPT delegations will refer in their opening statements to the Treaty as the cornerstone of the nonproliferation regime. If it is, then this period leading up to 2010 could determine whether it is strong enough to base our collective security and nonproliferation objectives on, or whether it is eroding too fast to be a stable foundation for people and nations to build their security on, in which case we may need to redesign the foundations, underpin the walls or even think about building something more secure for future generations.

As we get ready for the first PrepCom of the 2010 review cycle, therefore, states and civil society need to think carefully about what they want the review process for the NPT to achieve. In doing so, account needs to be taken of the fact that, legally and politically, the Non-Proliferation Treaty that is to be reviewed and implemented is the one that was extended indefinitely in 1995, together with the Principles and Objectives for nuclear disarmament and nonproliferation, the strengthened review process, and also the Resolution on the Middle East, proposed by the three depositary states.[1] The NPT could not have been extended by consensus without these decisions and resolution, which were understood by the 1995 Review Conference President, Jayantha Dhanapala (Sri Lanka), and the leaders of all major delegations, as a politically binding package. Furthermore, international lawyers have confirmed that a declaration of an NPT Review Conference has "juridical significance 'especially as a source of authoritative interpretation of the treaty,'... and is thus an appropriate source of interpretation of the obligations of the NPT."[2]

This does not mean that every element of the consensus decisions and agreements of 1995 and 2000 are to be set in stone - any more than the 1968 Treaty text is regarded as immutable (for example, Article V is universally recognised to be now redundant, superseded by the Comprehensive Test Ban Treaty (CTBT) which banned all nuclear explosions, including those designated for 'peaceful' purposes). What it does make clear is that reviewing the Treaty's operation in this review cycle means judging states parties' compliance against the principles, objectives and benchmarks of 1995 and 2000, as well as 1968, while updating the specific measures and steps to make them relevant and appropriate for the time.

Those who repudiated the core 1995 and 2000 agreements in 2004-5 contributed to the failures of the 2005 Review Conference; they now need to understand that their actions were tantamount to repudiating the indefinite extension of the Treaty. It would send all the wrong signals if they try a similar tactic for the 2007 PrepCom.

The NPT is pre-eminently a security treaty; its articles and the Principles and Objectives and consensus commitments need to be addressed with security in mind: nonproliferation, disarmament and nuclear energy. And three temptations need to be avoided: complacency - the view that the status quo will essentially hold regardless of whether the nuclear powers renew or modernise their arsenals or make deals with 'de facto' nuclear weapon possessors outside the treaty; minimalist approaches - go for lowest common denominator documents and smooth, quiet meetings; and maximalist approaches that would overload the review process with political expectations beyond the powers and remit of the Treaty. For example, responsibilities to pursue a nuclear weapon free zone (NWFZ) in the Middle East are contained within Article VII and the agreements adopted by NPT parties in 1995 and 2000; but though peace, justice and security in the Middle East are undoubtedly related to this objective, the NPT review process is not where such regional problems can be resolved.

In considering what can be achieved through the NPT, states parties need to choose which practical objectives can be worked on through the Treaty and its review process, and which are not amenable to resolution or progress within the review process per se. Some of the issues which fall into the second category may nonetheless be important to discuss and emphasise at NPT meetings as part of the overall nonproliferation and norm-embedding context, but they should not be used to derail achievable measures. Even where substantive progress is slow and difficult, states parties have a responsibility to consider what structures or institutional arrangements need to be changed or improved to facilitate communication and decision-making, and what symbolic messages and norm-strengthening principles NPT parties may need to send to proliferators and states that could be reconsidering or reneging on their commitments.

In setting the context for the 2007 PrepCom, it is important to recognise that strengthening the NPT does not mean drowning it in procedures. The procedures, processes, strategies and tactics should have one common purpose: to strengthen the credibility of the NPT and get its review process going again in the right direction - which means making it relevant for addressing actual proliferation developments and reducing current and potential nuclear threats. While no-one should underestimate the importance of getting the 2007 PrepCom off to a productive start on April 30, the compromises necessary to do this must be workable for the future and for the 2010 Review Conference. The bad experience over the agenda for the 2005 Conference should be avoided: backtracking from core, consensus agreements will turn out to be counterproductive.

Development of the review process

The current review process came about in three stages. The NPT in Article VIII.3 provided for review conferences every five years after entry into force, "in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realised". These review conferences caused a few weeks of flurried diplomatic attention and were used to air grievances, embarrass a rival, exert regional pressure on hold-out states or, occasionally, to boost efforts to get a nuclear test ban (1985 and 1990) or strengthen some aspect of the treaty, such as safeguards (1990). They attracted little attention from civil society, other than a handful of non-proliferation academics, and got even less press coverage.

If the core bargain of the original treaty was non-proliferation in return for progressive disarmament, 1995 brought about a further trade-off: clearer commitments and a more relevant and frequent review process in return for indefinite extension of the treaty. Many states had feared that making the treaty permanent would sacrifice what little leverage they had to encourage the defined weapon states to devalue and eliminate their nuclear arsenals. The South African compromise, brokered by the President of the 1995 Conference, created a politically binding package that comprised a strengthened review process, agreed principles and objectives for nuclear disarmament and non-proliferation and the extension decision. In addition, to meet regional concerns and bring a number of relevant states into the emerging consensus, the three depositaries put forward a Resolution on the Middle East. The three decisions and resolution were all adopted by consensus.

Decision 1 on "Strengthening the Review Process for the Treaty" decided that there should be more substance-oriented PrepCom meetings held for 10 working days in the three years prior to the quinquennial review conferences, with a possible fourth in the run up, understood to be primarily for "procedural preparations". The purpose of the PrepComs "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". Importantly, the meetings would not only consider implementation of the preamble and articles of the treaty, but also the decision on principles and objectives for nuclear non-proliferation and disarmament and, by implication, any further agreed documents and decisions that might result from future review conferences.

The role of review conferences was also significantly enhanced. They were to "look forward as well as back... evaluate the results of the period they are reviewing, including the implementation of undertakings of the States parties under the Treaty, and identify the areas in which, and the means through which, further progress should be sought in the future. Review Conferences should also address specifically what might be done to strengthen the implementation of the Treaty and to achieve its universality." In addition to retaining a structure based on three main committees, the 1995 decision agreed that subsidiary bodies could be established "for specific issues relevant to the Treaty, so as to provide for a focused consideration of such issues".

Though the conduct of some of the actual PrepComs was problematic, states parties made fairly effective use of the strengthened review process in its first few years, culminating in the substantively significant agreements contained in the consensus final document of the 2000 Review Conference. There were, however, some frustrations. Instead of the open main committees of past review conferences, the first Chair set an unfortunate precedent for closed 'cluster' sessions. These usually innocuous debates were therefore unable to be formally recorded or observed by civil society. (The mistake was finally rectified on the initiative of the Secretariat and later Chairs.) The first PrepCom developed paragraphs on a large spectrum of NPT-related issues. Subsequent Chairs tried to use this as a rolling text, but it became far too complex, bracketed and unwieldy to be of any use to the review conference, which effectively started again from scratch. The subsidiary bodies were formalised on the basis of political horse-trading and "balance" rather than the needs of the regime or the intrinsic merits or timely relevance of specific issues; some subsidiary bodies did little more than duplicate the cluster debates, and there was also a tendency for diplomatic inertia to ensure that once a subsidiary body was agreed on a particular issue in one year, there was an institutional impetus to renew its mandate in subsequent years rather than enduring the process of negotiations to determine whether there were new or more pressing priority issues for subsidiary bodies to address.

While the majority of states parties focussed on getting agreement on the substantive agreements - most notably the disarmament plan of action, which became known as the 'thirteen steps' - a small group around the President, Abdallah Baali of Algeria, came up with a paper on "improving the effectiveness of the strengthened review process for the NPT", which was added onto the final document with little discussion. This made explicit that the PrepComs and review conferences should consider "specific matters of substance relating to the implementation" not only of the Treaty text, but also the 1995 decisions and resolution on the Middle East "and the outcomes of subsequent Review Conferences, including developments affecting the operation and purpose of the Treaty".

So far so good: the 2000 final document had clarified that the PrepComs and review conferences were empowered - indeed, required - to deal with NPT-related developments in the real world. Since previous attempts to make the PrepComs produce a rolling text had resulted in a messy dog's dinner, a noble attempt was made to avoid the consensus-rolling-text temptation so early on by requiring that the first two PrepComs should transmit a report that "factually summarised" the deliberations, while the third "should make every effort to produce a consensus report containing recommendations to the review conference". It was upheld that subsidiary bodies can be established at review conferences "to address specific relevant issues" but 2000 additionally recommended that "specific time be allocated at sessions of the Preparatory Committee to address specific relevant issues".

Learning from the past: the PrepComs of 2002-4

Though the changes were intended to improve the review process, it is debatable whether they succeeded sufficiently to fulfil the intentions of the 1995 Conference. At the 2002 PrepCom, the factual summary was the product of language crunching by the Chair, Henrik Salander, and a few key aides, who wisely chose to reflect differences of view rather than seek the blander option of portraying only agreed positions. This enabled the PrepCom to be managed smoothly and conclude on time. But it was not without its challenges, however. Salander had to conduct the first week's work without obtaining agreement on the agenda, principally due to objections from the United States and France to the inclusion of references to reporting in the description of treaty issues allocated to the specific sessions on practical disarmament and regional issues.

Salander succeeded in obtaining early agreement that in addition to the traditional clusters of nuclear disarmament, safeguards and nuclear weapon free zones (NWFZ), and nuclear energy, equal time should be given to three special issues: practical disarmament (based on the 2000 programme of action); regional issues; and the safety and security of the nuclear fuel cycle. He eventually got his agreement on the agenda by threatening to adjourn the PrepCom indefinitely.

Though Salander's 7-page factual summary was acclaimed by participants as useful and balanced, there were concerns even then that the teeth had been pulled from the PrepComs, turning them into flat shows that went through the motions without having the power to influence outcomes. This became even more obvious in the second PrepCom in 2003.

Having nearly scuppered the 2002 PrepCom, the issue of reporting had ceased to be a problem by 2003. Issues from the real world were more prominent, though they were generally not addressed. For example, the general statements began to reflect deeper schisms arising from the Bush administration's repudiation of reciprocal non-proliferation in favour of coercive counter-proliferation in the post-9/11 security environment. There were also early indications of some of the consequences of the neocon approach, most notably in North Korea and Iran, two states that had been described as part of an 'axis of evil', together with Iraq, which the Bush administration had just invaded. Most significantly, North Korea had announced months earlier its withdrawal from the NPT, making use of Article X, with profound implications for the sustainability of the regime. For the sake of a procedural success, however, all discussion on North Korea's withdrawal was avoided, even though there were many who would have preferred real political debates to a smoothly conducted but essentially irrelevant meeting.

The 2003 PrepCom also managed to finish on time, with adoption of a procedural report listing decisions, participants, working papers and other procedural data, to which was attached the Chair's summary. Once again, this was a carefully managed meeting; unlike 2002, however, it was castigated as a missed opportunity to discuss and address resurgent proliferation and disarmament challenges. Though the PrepCom was viewed as a diplomatic success, it was not necessarily a political success in terms of the NPT's objectives.

The 2004 PrepCom was supposed to produce recommendations and finalise arrangements for the 2005 Review Conference, including the rules of procedure, documentation and agenda. Instead, it closed late in confusion and disarray after managing to adopt only parts of its final report containing the most minimal agreements to enable the 2005 Review Conference to take place. At issue was whether the review and discussions in 2005 should be framed in terms of the outcome of the 2000 Review Conference as well as the 1995 Conference. The United States, supported by France, said no. The New Agenda Coalition and most of the NAM refused to allow the outcome of the 2000 Review Conference to be negated or sidelined. Deadlock ensued. Because of this, the PrepCom could not agree an agenda or any background documentation for 2005. The rest, as they say, is history.

Despite an exhausting round of shuttle diplomacy, the President designate, Sergio Duarte, could not get consensus on these issues. The 2005 Review Conference opened without an agenda and was able to do little work until adoption of a work programme, which wasn't effected until the third week. Though the US had modified its stand slightly, and was willing for all past review conferences to be listed, this was not good enough for Egypt, which continued to insist on specific references to 1995 and 2000 long after other states had reluctantly caved in.

The Conference then limped to its predicted end, managing only to adopt a so-called 'final document' that did little more than list participants and officials and how many meetings had been held. The 2005 review did not fail simply because there was no agenda for the first half and then no time to negotiate a substantive final document. For many states, this was a preferred outcome to a document that would have cancelled out or weakened significant previous commitments and agreements. The 2005 Review Conference failed because no-one had a positive strategy for addressing the major issues and moving forward despite the political extremes.

It is instructive to consider the nonproliferation challenges identified by the states parties in 2005, as they are still relevant:

• entry into force of the CTBT - even more of a priority in the wake of North Korea's provocative nuclear test on October 9, 2006;
• nuclear disarmament, currently being undermined by the revaluing of nuclear weapons as many of the NWS renew, upgrade or modernise their arsenals;
• the nuclear fuel cycle and how to prevent Article IV being used as a route to acquire nuclear weapon capabilities;
• universalising a system of strengthened and more effective safeguards;
• clarifying and tightening the conditions under which states may legally withdraw from the Treaty, especially if they have fuel cycle technologies acquired while they were NPT parties.

Finally, since procedural and institutional mechanisms are also important for regime building, there is the question of the functioning of the NPT itself, whether the review process is adequate or appropriate, or whether the institutional powers of states parties need to be revised and strengthened in order to deal with nuclear dangers and proliferation more effectively.

Tasks for the Review Process

The review process has two different but related objectives and tasks. The first, most fundamental task, necessary to stem recent years of undermining and erosion, is to create a context for revalidating the multilateral regime against nuclear proliferation, increasing its credibility and enabling states to reinvest in the Treaty's purposes and implementation. The second is to look forward and reinvigorate the infrastructure; establishing or constructing (where necessary) appropriate diplomatic mechanisms for the 21st century that will enable states and their citizens to participate fully and accountably in implementing the Treaty. Traditionally the first may be designated 'political' and the second 'procedural', but in reality they need to be seen as mutually dependent and reinforcing. All too often, however, the domestic or national agendas of certain leaders or officials result in procedures and processes being invoked and employed to restrict or obstruct nonproliferation progress and implementation rather than to facilitate.

As noted above, the Treaty was a cold war compromise in the mid 1960s. Its core assumption that nuclear proliferation would jeopardise human security and survival is still sound, but the review process needs to take into account that some of the Treaty's cold war letter needs to be politically reinterpreted to uphold and take forward the aims and intentions. An important aim, which all participants in the PrepCom need to keep firmly in mind, is to build - in some cases, rebuild - states' confidence that the multilateral regime will meet their security needs better than unilaterally acquiring, retaining or renewing nuclear weapons. The meetings should not only be a forum for repeating standard government positions; the review process needs to get better at providing safety valves for a regime under strain, with opportunities to raise and address serious concerns, and the flexibility to adapt precedents and procedure as necessary in order to negotiate and agree ways and means to facilitate and implement the intentions, purposes, obligations and commitments at the heart of the nonproliferation regime.

It is clearly necessary that all states parties should support the Chair of the PrepCom, Ambassador Yukiya Amano of Japan, in his efforts to get the review process off to an effective start, beginning with the adoption of a workable agenda. That agenda needs to be sufficiently inclusive to lay a constructive foundation for work not only in 2007, but in 2008, 2009 and, most importantly, 2010.

Agenda

Since the 2005 Review Conference failed to adopt its committee reports or agree a final document that contained anything relating to substance, the consensus outcome of the 2000 Review Conference still stands as the baseline and yardstick for what needs to be done.

A practical agenda that reflects previous agreements and outcomes has to be adopted one way or another in order for relevant work to be carried out. Pretending that 1995 or 2000 don't still matter is not the way to build confidence in the regime or move forward to strengthen and implement the Treaty.

With regard to the immediate challenge of the 2007 PrepCom, it would be helpful to realise that the issues that will need to be addressed and agreed in order for the 2007 PrepCom to take place constructively are rather similar to what confronted the Chair of the 2002 PrepCom: agenda and allocation of special time for specific issues.

Whatever the original intentions, the games that were played in 2004 and 2005 over the review conference agenda backfired disastrously for all concerned. To avoid making the same mistakes, an obvious precursor is the agenda adopted for the 2002 PrepCom. This contained a substantive paragraph describing the PrepCom's work thus (para 6) : "Preparatory work for the review of the operation of the Treaty in accordance with article VIII, paragraph 3, of the Treaty, in particular, consideration of principles, objectives and ways to promote the full implementation of the Treaty, as well as its universality, including specific matters of substance related to the implementation of the Treaty and Decisions 1 and 2, as well as the resolution on the Middle East adopted in 1995, and the outcome of the 2000 Review Conference, including developments affecting the operation and purpose of the Treaty."

It may not be possible to get delegations that went through the debacle of 2005 to adopt the verbatim 2002 agenda this time round, but it contains the elements necessary to satisfy both ends of the argument - recognition of the benchmarks of 1995 and 2000 plus acceptance that states parties need to take into account developments in the real world.

Special time and/or subsidiary bodies

What are the issues that states will want to allocate special time for? The main contenders, I would venture to predict, are: practical disarmament, security assurances, regional issues (code-phrase for the Middle East), Article X and treaty withdrawal.

Will there be champions calling for special time on other issues, and if so, what? Compliance and the safety and security of the nuclear fuel cycle are possible but less likely at this juncture. In theory (and according to the agreements and rules) there is no restriction on the number of special issues that could be allocated special time; but past practice has chosen a maximum of three, loosely correlating with the three cluster sessions.

Substantive Issues

The three clusters established in 1997 are themselves based on three main committees (nuclear disarmament, safeguards/NWFZ, and nuclear energy) that were established in 1985 in part for reasons of regional balance and to appease rival factions by providing three substantive chairing roles.

Though unlikely to be initiated at this PrepCom, a growing number of academics are questioning whether a systematic article-by-article review, taking into account the Principles and Objectives and subsequent decisions and agreements, might not be a more appropriate way of evaluating the Treaty. If the past review process is anything to go by, the cluster debates will mainly be formal statements (much of which may repeat the relevant parts of statements already given in the general debate, while more practical, substantive interaction will take place in subsidiary bodies or 'special time' sessions.

Disarmament and Security Assurances

The NAM have traditionally argued for separate special time to consider practical disarmament steps and security assurances, and given the importance of each issue, it is easy to see why. Having been joined in 2005, however, the signals are that they will be combined again. There is a growing logic for this, that the non-nuclear weapon states should consider: in view of the changing role of nuclear weapons - and particularly of nuclear doctrines and policies - the central security issue in modern times is not about the big numbers in the arsenals, important though they are; it is about preventing any use of nuclear weapons.

In the cold war, when the US and Soviet arsenals each numbered tens of thousands, any use of nuclear weapons could result in all out nuclear war - and the annihilation of the human race in a subsequent nuclear winter. Priority was given to arms limitation and arms control, a process that helped in bilateral stability, communication and confidence-building, essential to what was deemed to be a deterrent relationship. As the cold war ended, the emphasis shifted to deep cuts combined with cooperative threat reduction. Within a few years thousands of 'city-killer' strategic systems (some but not all of which were already obsolete) and the most portable, vulnerable tactical nuclear weapons were on the way to the dismantling yards.

After the South Asian nuclear tests of 1998 and also, it must be said, as a consequence of how the Bush administration responded to the terrorist attacks on 9/11, nuclear weapons have risen in value: now the primary threat comes less from the sheer numbers of weapons, than from their spread, combined with increased attractiveness and usability. Only one nuclear device can be enough to terrorise, blackmail or coerce. That is equally true whether it is a state or non-state entity that has acquired and threatens to use nuclear weapons. Though the nuclear weapon states want us to believe that there is a fundamental difference between these situations, based on their view that the NPT confers legitimacy on their nuclear weapons, the difference is only one of standpoint (and the relationship between threatener and threatened). It was this recognition (and its implications for US security policy) that lay at the heart of Henry Kissinger's conversion to the cause of a nuclear weapon free world.[3]

Whilst UNSC Resolution 1540 (2004) and a variety of counter-proliferation policies are aimed at preventing non-state actors and certain states from acquiring nuclear weapons or technology, revised nuclear doctrines have been put in place first by the United States (and then quickly reproduced, with nuanced differences by Britain, Russia and France). These doctrines are inconsistent with the P-4 negative security assurances (NSA) to non-nuclear states, represented in UN Security Council resolution 984 (1995).[4]

The new doctrine is most clearly (and openly) spelled out in the 2006 US National Security Strategy, which underlines the possibility of pre-emption, stating, "[I]f necessary... under long-standing principles of self defence, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy's attack."[5] A draft US nuclear doctrine partially published in 2005, explained that US and NATO nuclear doctrine are now based on "adaptive planning", meaning the "ability to respond to new targets and changing priorities before or during the execution of strategic nuclear operations."[6] Targets are not necessarily military installations, but may also include "political" targets, including "... appropriate elements within an adversary's power base (e.g., forces, infrastructure, and political support) for attack."[7]

The draft US nuclear doctrine envisages four main roles for nuclear weapons:

• Assuring allies and friends of the US steadfastness of purpose and its capability to fulfil its security commitment;
• Dissuading adversaries from undertaking programmes or operations that could threaten US interests or those of allies and friends;
• Deterring aggression and coercion by deploying forward the capacity to swiftly defeat attacks and imposing severe penalties for aggression on an adversary's military capability and supporting infrastructure; and
• Decisively defeating an adversary if deterrence fails.[8]

Such adaptations of nuclear policy might seem to make sense for the P-4 nuclear planners in the "age of terrorism", but they are perceived very differently by non-nuclear weapon states parties to the NPT, who have renounced the possibility of acquiring these ultimate terror weapons for themselves. And though the pressure for legally binding, unconditional security assurances continues to come mainly from the 100-plus Group of Non-Aligned States, others are also growing more concerned about doctrine and policy shifts that lower the threshold between nuclear weapons use and perceived threats from adversaries armed with chemical and biological weapons (CBW) or even just conventional forces.

The UK government's arguments for renewing and upgrading its Trident submarine system epitomise this shift from quantitative to qualitative reliance. This was most clearly illustrated in the Trident White Paper, which juxtaposed a small, operationally irrelevant promise of a 20 percent cut in warhead stocks with "insurance policy" arguments that nuclear weapons would be needed indefinitely to deal with unforeseeable, unknowable, unpreventable threats (while at the same time dismissing the most obvious strategy for preventing such threats, namely, disarmament and sustained nonproliferation).

Combined with the revised doctrines for use, the UK justification is a recipe for proliferation. Gone would be the reciprocal objective (and hope, however distant) of disarmament by the nuclear weapon states. Gone would be the NPT incentive for non-nuclear countries that renouncing nuclear weapons of your own would take you off the nuclear targets list and provide guarantees against the threat or use of nuclear weapons, at least by other NPT members. What would be left would be the shell of an indefinitely extended treaty structured to enable the main victors of the 1939-45 war to maintain a dominant military position in perpetuity, whilst other states parties (allies or rivals alike) would be treaty-bound to be forever supplicants - perpetually begging the weapon states for a guarantee of defence and protection (positive security assurances) and their promise not to attack (negative security assurance). Even though nonproliferation is in the security interests of all, it is unthinkable that such an unequal arrangement could be sustained in the long term. This is one salient reason why, despite its large membership, the NPT has already begun to unravel.

To save it, both the disarmament obligations and out-dated framing of the demand for security assurances need to be rethought.

Whilst no-one should discourage the weapon states from their processes of reductions, whether through START, SORT or unilateral initiatives like Britain's, nor should anyone be fooled into believing that these are in fulfilment of Article VI. The reductions undertaken since the end of the cold war first and foremost reflected the nuclear powers' perceived interests, which included drastically cutting down the expenses of maintaining large arsenals and cutting out the obsolete, most vulnerable and least useful forces (strategic megatonnes and portable, stealable tactical weapons). Though there were overwhelming national and financial reasons for reducing the major arsenals, the NWS also wanted to be given international approbation for fulfilling their NPT obligations. For the first decade after the fall of the Berlin Wall, many NPT parties obliged, hoping that praise would encourage further progress.

Instead, as numbers have decreased, the value attached to nuclear weapons has been increasing, led by the nuclear weapon states and illustrated by the benefits and attention conferred on India, Pakistan and even North Korea when they 'went nuclear'. No wonder the Iranian leadership calculated that enriching uranium would be a win-win strategy. These dangerous post cold war developments need to be reversed, which requires a rethinking by the non-nuclear weapon states of the disarmament and security assurances they require in order to retain confidence in the nonproliferation regime.

As noted above, nuclear threats in the future will come from the use or threat of use of one or a small number of nuclear weapons. Hence, the UK Parliamentary Defence Committee was right to question whether cutting the number of warheads on Trident from a theoretical ceiling of 200 to 160 would have any nonproliferation impact. It won't; because it has no operational impact. Even at the lower number, three Trident submarines can be simultaneously deployed with 48 warheads of around 100 kt each, so the 20 percent 'cut' clearly has little or no operational significance.[9] From another angle, the very thought of North Korea having one nuclear bomb that could be delivered to San Francisco appeared to deter Washington. Whether that was really the case is not the point; in the psychology of deterrence and proliferation, perceptions matter more than facts, and Iran was not the only country to draw proliferation-driving conclusions from the contrast in US policies towards Iraq and North Korea.

In the 1960s, if a country was threatened or attacked with nuclear weapons, then it was logical to think of the major powers - who were also nuclear-armed - coming to its aid. This was the basis of the positive security assurances in UNSCR 255 (1968). By the time these assurances were updated in 1995, the onus of response was broadened somewhat to the broader community of states,[10] but it still conveyed the sense that by virtue of their weapons, the NWS had a special role in guaranteeing (or withholding) such aid, particularly when only the five NPT-defined NWS have permanent seats on the Security Council. Negative security assurances, meanwhile, remained firmly the 'gift' of the NWS, which four of them hedged around with so many caveats as to render them practically unreliable for the security purposes of the majority of NPT parties.

What is needed now is a more comprehensive arrangement of security assurances, designed to protect people from the use or threat of nuclear weapons and to ensure that anyone contemplating or perpetrating such an attack - state or non-state - would know in advance that all peoples - not just the NWS - are legally bound to come to the aid of the threatened nation and to hunt down those responsible for supplying, abetting or carrying out the attack (whoever they may be) and bring them to justice. Additionally, since future security assurances need to take account of non-state threats as well, UNSCR 1540 (2004) provides a useful precedent for placing obligations on states with regard to the WMD threats and crimes that might be posed by their citizens, industries or other non-state activities. Negative security assurances should likewise not be left solely to the NWS to determine, as if they are a gift from the powerful to their subjects.

The International Court of Justice in its July 1996 advisory opinion on the threat and use of nuclear weapons highlighted relevant humanitarian as well as treaty law. The majority of the 14 judges held that because "nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives, and their effects, largely uncontrollable, could not be restricted, either in time or in space, to lawful military targets", therefore "Recourse to nuclear weapons could never be compatible with the principles and rules of humanitarian law and is therefore prohibited."[11]

Rather than the positive and negative security assurances of 1995, which if anything increase the status of the NWS as deciders (while the NNWS are turned into supplicants), any discussion of legally-binding security assurances should take a modern, broader view. Positive and preventive assurances should be made the responsibility of the entire UN membership, and the NWS should be required to make their negative assurances compatible with the ICJ opinion and international law. This would require them to establish nuclear doctrines and policies that would raise the threshold of nuclear use once more, superseding the caveats and conditions in the current unilateral NSA.

Pending adoption of a prohibition on the use or threat of nuclear weapons altogether, which should be in the preamble of the security assurances as an objective and aspiration, such an approach to security assurances would greatly enhance international security and contribute more to nonproliferation than the present arrangement. Most importantly, it would constitute a big step towards the devaluing of nuclear weapons, which is why it is more appropriate now for disarmament and security assurances to be discussed together.

Regional Issues

The cluster on regional issues is generally viewed as a euphemism for addressing the 1995 Resolution on the Middle East, although in fact, the NPT also faces serious challenges due to nuclear developments in Northeast Asia, South Asia, Europe (notably non-strategic nuclear weapons) and, of course, Iran as well as Israel in the Middle East.

For many Arab states, the Resolution on the Middle East was central to their acceptance of indefinite extension of the NPT. However, despite all the rhetoric and late-night stand-offs at NPT meetings, a Middle-East NWFZ has never got off the ground. Because of the complexities of the security environment in the region, many states have assumed that a NWFZ - or even its corollary, a zone free of weapons of mass destruction - in the Middle East is not feasible in the foreseeable future. So the concept has been employed mostly as a political football, to accomplish other regional, political and diplomatic purposes, including isolating Israel. But calculations of security interests are changing, which may offer new opportunities to make progress towards developing such a zone in the coming years.[12]

Withdrawal from the NPT (Article X)

If special time is given to discussion of Article X, it is worth recalling that in 2005, this subsidiary body, chaired by Ambassador Alfredo Labbé of Chile, came close to consensus on a draft that addressed several of the main questions:

"1. Withdrawal remains a sovereign right for States Parties under Article X and International Law. Article X subjects this sovereign right to conditions and a time framework.

2. Recalling the NPT's role as a cornerstone of international peace and security and in order to preserve the Treaty's objective of universality, Depositaries and States Parties should undertake consultations and conduct every diplomatic effort to convince the withdrawing Party to reconsider its sovereign decision. In doing so, States Parties should also address the legitimate security needs of the withdrawing Party. Regional diplomatic initiatives should be encouraged and supported.

3. Withdrawal may pose threats to international peace and security. These are to be assessed by the Security Council according to the UN Charter.

4. Under International Law, the withdrawing Party remains liable for Treaty violations perpetrated prior to the notification of withdrawal.

5. Nuclear material, equipment and technology acquired by a State for peaceful purposes before withdrawal must remain subject to peaceful use under IAEA safeguards.

6. Nuclear supplying States Parties should consider negotiating the incorporation of dismantling and/or return clauses in the event of withdrawal, in arrangements or contracts concluded with other States Parties, as appropriate in accordance with International Law and national legislation.]"[13]

Rather than reinventing the wheel, these discussions should be revisited, analysed and, where possible, built on for agreement. A note of caution, however: distinctions need to be made between the use of Article X for states, like North Korea, that benefit from the Treaty and then withdraw in order to evade investigations for noncompliance and to acquire nuclear weapons, and states parties in good standing (with absolutely no nuclear ambitions) who may feel the need to evoke Article X for other reasons. Such reasons might, for example, include waking up complacent NWS who are damaging nonproliferation efforts by behaving as if the indefinite extension of the NPT in 1995 has given them a permanent right to have, renew and upgrade their own nuclear arsenals.

Among the growing number of states that worry that the behaviour of the NWS and other proliferators after 1995 is jeopardising their national and regional security, some may come to view Article X as the most effective leverage available to them to press for full implementation of the NPT. For states already under legal obligations not to acquire or transfer nuclear weapons or technology (for example, members of NWFZs), the sovereign right (see above) to withdraw from a treaty that is not being implemented in good faith by others must be preserved and respected.

Nuclear energy: nonproliferation incentive or proliferation facilitator?

The peaceful uses of nuclear energy are discussed as part of Cluster 3. No doubt most states will continue to repeat the mantra about the inalienable right enshrined in Article IV. Looking beyond the perspectives of 1968, it is time once again to address whether this is really as good a bargain as it once appeared to be. For most states the key appeal of Article IV was the promise of a cheap and reliable energy supply, not necessarily its nuclear generation, and consideration should at least be given to the legitimate concerns that widespread commercial nuclear use may create a nuclear-weapon-world in waiting. While it is becoming clearer that nuclear power is less able to deliver cheap, safe and reliable energy than alternative and sustainable technologies, the NPT may be diverting countries with the legitimate objective of energy security into an unequal relationship with big nuclear businesses dominated by a few rich multinationals and states.

A proliferation nightmare by 2010?

It will be of little use to refine the review process for the NPT if by 2010 the Treaty and non-proliferation regime have been further eroded and discredited. This could come about as a consequence of (for example):

• a use or threat of use of a nuclear weapon, whether by a defined or de facto nuclear weapon state or a non-state actor that had acquired nuclear capabilities through purchase or theft;
• a breakdown in the recent agreement with North Korea leading to further nuclear tests and/or other demonstrations from Kim Jong Il's regime to convince that North Korea has developed and produced nuclear weapons;
• acceleration of uranium enrichment by Iran or the bombing of Iran's known nuclear facilities with the ostensible intention of forestalling a nuclear weapons capability;
• any other states developing rationales or programmes intended to provide a nuclear weapon capability or option in the future;
• further revaluing of nuclear weapons for status, regional or international power projection or security, and/or significant continued reliance on nuclear weapons for deterrence, prestige or domestic party political gain;
• developments of new types of nuclear weapons - including modernisation - by any of the NPT nuclear weapon states;
• Britain going ahead with procuring the next generation of the Trident nuclear system to maintain its nuclear weapon status beyond the 2020s, (this is irrespective of whether a small reduction in warheads or missiles is undertaken);
• withdrawal from the Intermediate-range Nuclear Forces (INF) Treaty by Russia or the United States;
• new or extended doctrines or missions for tactical or, indeed, strategic nuclear weapons;
• the continuation, extension and any further development of capabilities for enriching uranium or separating plutonium.

Others will have their own nuclear-related concerns to add to this list, such as key countries holding open the option for further nuclear tests and blocking entry into force of the CTBT. The point is that the NPT needs to develop more effective ways to deal with such real world threats. Considering the review process without this context will accelerate the regime's erosion, so that instead of being strengthened to prevent proliferation it is turned into diplomatic wallpaper - a superficially good-looking piece of paper that temporarily covers up the underlying damage and distracts political attention while the deep cracks in the foundations of international security grow deeper and wider.

Conclusion

Whatever is not explicitly proscribed in the Treaty, decisions of a review conference or the rules of procedure, may be tried, adapted and innovated. Contrary to what diplomats seem to assume, many changes can be initiated by the Chair and carried forward on her/his authority. The first PrepCom after the historic extension of the NPT agreed to apply the rules of procedure of the 1995 NPT Review and Extension Conference. It would "make every effort" to take decisions by consensus, with a fallback of majority voting available. There is no need to wait for a consensus decision of a review conference unless the proposal contradicts or fundamentally alters a previous consensus decision. Far more structural, institutional and procedural options are available within existing articles and rules than most people realise, and some of the best outcomes have been achieved when Chairs, Presidents and officials have had their backs against the wall and have therefore had to be creative and brave.

In the absence of agreement along the lines of the Irish-Canadian proposals for facilitating timely decision-making on substantive issues as they arise in the real world and providing better accountability and institutional continuity, several options can be considered for increasing the relevance and effectiveness of the NPT regime. Intersessional working groups or special coordinators could address specific concerns or provide an NPT link to proliferation problems, for example by appointing an observer or participant to the Six Party Talks, NWFZ consultations, formal and informal consultations with states regarding proliferation concerns or questions of compliance and so on.

The nonproliferation regime cannot risk another debacle like 2005. But nor can it afford to go through tough negotiations and reach important consensus agreements, as it did in 2000, only to have them ignored, dismissed or reinterpreted to suit the interests of a few powerful states with illusions that their notions of national security are more important than the security of other nations and peoples.

So if the 2007-2010 review process is to be taken seriously, the chairs and parties have to show that the outcomes of review meetings are meaningful. Rather than retreating at the first sign of controversy, as has sometimes happened in the past, those charged with managing the review process need to hold firm to principles and persuade any recalcitrant delegations that it is not in their interests to reproduce the debilitating and self-defeating problems that beset the 2005 Review Conference.

Notes

[1] The depositary states are Russia, the United Kingdom and United States.

[2] Rabinder Singh QC and Professor Christine Chinkin, 'Mutual Defence Agreement and the Nuclear Non-Proliferation Treaty: Joint Advice', July 20, 2004. The authors noted "... 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)] ."

[3] George P. Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, 'A World Free of Nuclear Weapons', Wall Street Journal, January 4, 2007.

[4] See Jean du Preez, The demise of nuclear negative security assurances, paper presented to the Article VI Forum, September 2006, available at http://cns.miis.edu/cns/projects/ionp/pdfs/visions_of_fission.pdf

[5] The National Security Strategy, The White House, March 16, 2006, notably chapter V.

[6] Doctrine for Joint Nuclear Operations (JNO), US Joint Chiefs of Staff, Joint Publication 3-12, March 15, 2005. Available at: http://www.acronym.org.uk/docs/0503/usdoctrine.pdf.

[7] JNO, Ibid.

[8] JNO, Ibid. For further analysis, see Rebecca Johnson, Nicola Butler and Stephen Pullinger, Worse than Irrelevant: British Nuclear Weapons in the 21st Century, Acronym Institute, October 2006, especially Appendix I, pp 71-75.

[9] One submarine on continuous sea patrols is regarded as the 'minimum deterrent'. Even at the height of the cold war, Britain seldom deployed more than two submarines at the same time.

[10] UNSCR 984 calls on "Member States, individually or collectively, if any non-nuclear-weapon State Party to the [NPT is a victim of an act of aggression with nuclear weapons, to take appropriate measures in response to a request from the victim for technical, medical, scientific or humanitarian assistance, and affirms its readiness to consider what measures are needed in this regard in the event of such an act of aggression..."

[11] International Court of Justice (ICJ) Reports 1996, para 92. [July 8, 1996, General List No. 95]. For a fuller discussion of the legal issues, see Johnson, Butler and Pullinger, Worse than Irrelevant, op. cit. pp 57-63; and Charles J. Moxley, Jr, Nuclear Weapons and International Law in the Post Cold War World, Austin & Winfield, 2000.

[12] Disarmament Diplomacy plans to publish discussion papers on this in forthcoming issues.

[13] Draft Report of Main Committee III, excerpt concerning Article X (from Subsidiary Body III), reproduced in Rebecca Johnson, 'Politics and Protection: Why the 2005 NPT Review Conference Failed', Disarmament Diplomacy 80 (Autumn 2005), p 27.

Rebecca Johnson PhD is the executive director of the Acronym Institute. This essay is based on a draft first presented to the Monterey Institute's workshop on "Preparing for 2010", held in Annecy, March 16-17, with grateful thanks to William Potter and Jean du Preez.

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