Disarmament Diplomacy

Engaging India, Israel and Pakistan in the Nuclear Non-Proliferation Regime

Jenny Nielsen

The lack of universal membership of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is one of the main and enduring challenges facing the nuclear non-proliferation regime. Even though North Korea is now being drawn back into the NPT after announcing its withdrawal to develop nuclear weapons in 2003, three states - India, Israel and Pakistan - never joined the treaty, but developed nuclear arsenals after the treaty had come into force in 1970. Although two (India and Pakistan) have declared themselves to be nuclear weapon states, while Israel maintains a policy of nuclear opacity, these "D-3"[1] de facto nuclear weapon possessors cannot be brought into the NPT as 'nuclear weapon states' without an amendment to the treaty, which is politically infeasible, particularly in view of the strong concerns raised by non-nuclear weapon states in the Middle East and South Asia. Nor is it likely that India, Israel or Pakistan will be persuaded to give up their nuclear weapon capabilities as South Africa did in 1992, except in the context of regional or global nuclear disarmament.

Described by some analysts as the 'three-state problem', a major dilemma for the non-proliferation regime is to find ways to engage the D-3 more effectively in the broader nuclear non-proliferation regime without weakening or discrediting the NPT in the eyes of its states parties, especially the non-nuclear weapon states, who have voluntarily undertaken never to develop or acquire nuclear weapons, and who are subject to legally binding constraints and safeguards as a consequence.

Various different proposals have emerged to address the D-3, but to date there has been no methodical analysis. This study plugs the gap by reviewing the proposals in a more systematic manner, with the aim of serving as a catalyst and springboard for future discussion and analyses of the pre-requisites, prospects and potential implications of each proposal. By providing an updated summary of the major approaches, I hope to inspire practitioners and academics to think creatively about this enduring concern.

The following analysis introduces the D-3 problem and poses some key questions; it then summarizes ten existing proposals for engaging the D-3, and gives an initial assessment of these and their possible ramifications to the NPT. Tables 1 and 2, at the end of the article, provide an overview.

The D-3 problem: Fixing a leaking roof whilst smashing the cornerstone?

For many, the persistent rejection of NPT membership by the D-3 de facto nuclear weapon states is the most egregious deficit in the nuclear non-proliferation regime, and it continues to limit the international community's efforts to implement disarmament and non-proliferation obligations more fully. Attaining universal membership of the Treaty is seen as desirable, since "the importance of the universality of a treaty is that it consolidates the normative strength of the treaty and the regime that it anchors".[2] Universality is also sought because non-party states are not bound by treaty prohibitions, although it could be argued that based on customary principles of international law, the established and customary practices of complying with NPT provisions apply even to NPT non-parties.

Attaining universal membership of the NPT is not straightforward. The NPT distinguishes between the obligations of nuclear weapon states (NWS) and non-nuclear weapon states (NNWS). There is a rigid definition and recognition for only five NWS: China, France, Russia, the United Kingdom and the United States. Accordingly, all others must join the treaty as NNWS. The Treaty rests on a delicate balance of disarmament and non-proliferation commitments, and incentives for joining the regime.

As a consequence, the treaty doesn't allow for a status for the D-3. Their nuclear capabilities[3] mean that, while they do not fit into the NPT's definition of a NWS, they are clearly not NNWS either. Attempts to include the D-3 risk jeopardizing the NPT's equilibrium either through recognizing and therefore legitimizing their nuclear programmes, or through seemingly giving them preferential treatment despite their remaining outside (and, some would argue, violating) international norms. Such approaches risk raising doubts among other non-nuclear weapon states who may come to view their own renunciation of nuclear weapons as no longer being in their national interest.

It could be reasoned that given the nuclear realities and definitions in the NPT, the Treaty has reached its maximum signatory potential. Those favouring this posture dismiss the declaratory calls for the D-3 states' accession to the NPT as wishful-thinking and argue that there is an urgent need for creative alternatives to engage these states.

For example, in June 2006, the Director General of the International Atomic Energy Agency (IAEA), Mohamed ElBaradei, stressed the need for a creative approach for dealing with the D-3, indicating that "our traditional strategy - of treating such states as outsiders - is no longer a realistic method of bringing these last few countries into the fold".[4] The participation of the D-3 in achieving non-proliferation objectives appears more challenging than ever,[5] given the Iranian and North Korean non-compliance activities as well as perceptions of the precarious condition of the NPT following the perceived failure of the review process leading to the 2005 NPT Conference. The US-led international security priorities, which currently focus on preventing 'rogue' states and non-state actors from acquiring and disseminating weapons of mass destruction (WMD), compound the problem. Though the revelations about the Pakistan-based A.Q.Khan commercial nuclear network showed that at least one of the D-3 states had become the source of proliferation traffic to some NPT states parties, many complain that the pressure is falling more heavily on states that are NPT signatories, whilst India, Israel and Pakistan are not politically sanctioned or isolated by the Bush administration.[6] This confirms the urgency of the need to integrate the D-3 into the broader nuclear non-proliferation regime.[7]

If universality of the nuclear non-proliferation regime is achieved, "proliferation threats would, per definition, come from inside the regime"[8] rather than from outside where the regime has no direct legal authority. By integrating the D-3 into the broader nuclear non-proliferation framework, (although not necessarily into the NPT), the regime may potentially be better able to manage proliferation threats, as at least the "challenges would become matters of compliance".[9] However, as demonstrated by Iran and North Korea, ensuring and verifying compliance with treaty and safeguard provisions continue to be major challenges.

As mentioned above, one of the difficulties of engaging the D-3 in the nuclear non-proliferation regime is that such actions may potentially weaken the core of the regime, the NPT. The danger of 'NPT-fallout' arises if NNWS become resentful over the recognition and legitimization of the D-3 as possessors of nuclear weapons, particularly if such action is perceived to entitle them to preferential treatment and rewards not extended to NNWS in good standing. The NPT, the legal and normative 'cornerstone' of the nuclear non-proliferation regime, rests on three pillars: disarmament, non-proliferation, and peaceful uses of nuclear energy. The traditional assumption is that initiatives to sustain and support the nuclear non-proliferation regime would have to be compatible with the spirit of the Treaty and the objectives of all of these pillars.

Although the primary aim of any D-3 initiative will be to prevent further proliferation by engaging the nuclear states which are outside the Treaty's remit, many consider that proposals calling for the D-3 to be given a distinct status are contradictory to the provisions of the NPT. One such proposal, recently reiterated by Avner Cohen in 2004, argued "for a new international protocol, one that would legitimize Israel as a nuclear state, along with India and Pakistan".[10]

Criticism of proposals calling for a separate entity for the D-3 stress that it would legitimate the 'NPT-outlaws' and reward their actions, giving them an advantage over NNWS. While there is no realistic prospect of the NPT being reopened and amended to permit de jure recognition of India, Israel and Pakistan as nuclear weapon states, the growing tendency to treat them as if they were NWS carries a potentially serious risk of fallout from compliant but increasingly disenchanted NNWS party to the NPT, particularly certain Non-Aligned Movement (NAM) states. With regard to Cohen's proposal, the Arab states and Iran would be likely to denounce such recognition and legitimization of the Israeli nuclear programme as confirmation of the broadly perceived 'nuclear double-standard' granted to Israel by the international community, particularly by the United States.[11] Given the fragile security milieu in the Middle East and the threat perceptions held by its states, legitimizing Israel's nuclear programme in any way would have detrimental implications for regional and international security, potentially catalysing a domino reaction of withdrawals from commitments to non-proliferation treaties and agreements.[12]

Some used to argue that exercising the right to withdraw under Article X.1 of the NPT is not an option any state in good-standing would reasonably consider. Perhaps so, but the withdrawal precedent set by the Democratic People's Republic of Korea (DPRK) demonstrates that NPT treaty withdrawal is clearly feasible, arguably making it less taboo than originally believed. The proposals made by the German[13] and French[14] delegations at the 2004 NPT Preparatory Committee (PrepCom), aimed at providing a procedural structure for, and clarification of, the NPT states' withdrawal rights, are one kind of response to the foreseeable threat of further uses (and abuses) of Article X. Moreover, the suggestions made by Germany and France are not surprising, and perhaps rather overdue, given the perceived inability of the NPT review process and the UN Security Council to address the DPRK's status in relation to the NPT.

Ten approaches for engaging the D-3

In considering the ten main proposals put forward for engaging the D-3 in the context of the non-proliferation regime, the following questions need to be posed:

1. How can the D-3 be engaged in the broader nuclear non-proliferation regime without legitimizing their status as possessors of nuclear weapons? Is this possible?
2. If not, how can the legitimatization of their nuclear status be conferred with minimal resentment and fallout from the non-nuclear NPT states parties?
3. What are the consequences for the nuclear non-proliferation regime of the proposed solutions to the D-3 problem? What are the potential positive and negative effects of implementing them? Do the negative effects outweigh the positive effects? Would the current status quo be preferable? (And is the current status quo sustainable?)
4. What conditions must be created or met within and outside the NPT review process for these proposals to be even considered by the D-3 and the NPT states parties?
5. In attempting to engage the D-3 in the nuclear non-proliferation regime, is there a one-size-fits-all solution or is it necessary to work out individual approaches for each state? Or should India and Pakistan be addressed separately from Israel given the different geostrategic and political environment and complex factors specific to the India/Pakistan security relationship?
6. Is the way forward to address regional security concerns? Should regional security initiatives take precedence over (and precede) global non-proliferation processes?
7. Given the condition of the NPT review process and the broader non-proliferation regime, what is the likelihood of implementing these proposals, and what will be the effect of taking such initiatives on the current status quo?

Approach 1: D-3 Accession to NPT as NNWS

The default scenario called for in the statements of many NPT states parties is for the D-3 to disarm their nuclear arsenals and accede to the NPT as NNWS. Putting aside an ideal, yet highly unlikely, scenario of the D-3 voluntarily and independently renouncing and dismantling their nuclear weapon programmes and acceding to the NPT, accession by the D-3 to the NPT as NNWS could be promoted by the international community through positive and negative 'reinforcement'. The positive route would entail creating the political and regional security conditions necessary to satisfy the D-3's security-related rationale for their nuclear weapons. Such positive reinforcement would also likely include the consolidation and strengthening of the global non-proliferation norm, through strengthening the nuclear taboo,[15] defined by Nina Tannenwald as the illegitimation of nuclear weapons.[16]

If the nuclear taboo and the non-proliferation norm are to continue to be mutually reinforcing,[17] then the illegitimacy of nuclear weapons and their potential use must be upheld through the national security postures and policies of the five NWS. This would entail progress towards verifiable disarmament commitments, including abstaining from developing new weapons systems; support and, where still required, signature and ratification of the Comprehensive Test Ban Treaty (CTBT), and bolstering the political support for the Fissile Material Cut-Off Treaty (FMCT); and the provision of formal/legal security assurances.

National policies contradicting progress on disarmament commitments, particularly those agreed to during the 2000 NPT Review Conference,[18] will not encourage disarmament by the D-3. Indeed, it has been argued that the goal of persuading the D-3 to eliminate their nuclear arsenals is likely to be made conditional on genuine progress on disarmament by the five NWS.[19] Some early commentators predicted that global nuclear proliferation trends would increase unless progress on disarmament was made. The fact that this did not actualize does not mean that disarmament can be dismissed as an important tool in engaging the D-3.[20] Disarmament by the five NWS is now being linked to elimination of the D-3 arsenals. If disarmament of the D-3 is considered a positive objective for the non-proliferation regime, then it behoves the international community and the P-5 NWS to actively pursue and implement their disarmament commitments.

Some, including Anthony DiFilippo, argue that accession of the D-3 to the NPT as NNWS could and should be "ultimately mandated".[21] The latter approach would entail negative reinforcement to pressure the D-3 to join the NPT. DiFilippo argues that the international community could require (and impose an expectation) for these states to regularly provide the United Nations General Assembly (UNGA) with their reasons for not joining the NPT.[22] The GA would in turn decide the validity of the D-3's rationale for non-accession, and this might result in the case being referred to the Security Council (UNSC). The UNSC would then impose a formal request to the D-3 to accede to the Treaty and failure to do so would be met with economic sanctions. Whether DiFilippo's proposal would be practically possible, given political interests at each stage of the procedure, particularly at the UN Security Council, remains dubious. Even if it were politically possible, it is more questionable whether such coercive measures would garner genuine and sustainable support for the non-proliferation norm. The achievement of verifiable disarmament commitments by the P-5 NWS coupled with the provision of formal security assurances would potentially be more consistent with the spirit and objectives of the NPT.

Approach 2: High level talks in parallel to the NPT review process

Another proposal is to designate special envoys or establish consultation mechanisms to establish dialogue with the D-3 in parallel with the NPT review process with a possible enhanced role for NPT depositary states. At the 1999 NPT PrepCom, Malaysia submitted a working paper calling for "the establishment of a high level consultation mechanism" that would consist of annual formal meetings between representatives of NPT states parties and the four[23] states not party to the Treaty.[24] The high level meetings would serve as a forum for dialogue and "a reciprocal exchange of ideas and views regarding the possible membership" of the states remaining outside of the NPT.[25] During these meetings, the NPT states parties would "present arguments on the benefits of NPT membership", and the non-NPT states "would be asked to provide information to States Parties on their needs and ideas regarding their possible membership in the Treaty".[26] The proposed meetings would be linked to the NPT review process as the meetings would be "convened and chaired by the current chairman [sic] of the respective PrepCom or RevCon [Review Conference]" and take place in the months leading up to the NPT meetings.[27] The Malaysian proposal stresses an enhanced role for the NPT depositary states in that they would extend the invitation to the non-NPT states and participate in the high level consultations along with the PrepCom chairs and RevCon president of the respective NPT review process.[28] The proposal also calls for a high level meeting for the non-NPT states in the year in which no NPT meeting is held.[29]

The Egyptian delegation to the 2000 NPT RevCon proposed a similar but more informal variation on the Malaysian proposal, with particular reference to the 1995 Resolution on the Middle East. In the context of the discussion of "regional issues, including with respect to the Middle East and implementation of the 1995 Middle East resolution" which took place in the subsidiary body of Main Committee II of the 2000 NPT RevCon, Egypt called for the appointment of "a special representative/envoy or committee or having the three depositary states pursue discussions with Israel" regarding accession to the Treaty.[30] According to Rebecca Johnson's analysis of the 2000 NPT RevCon, Egypt's proposals for such a process were met with opposition from states parties including France and the United States, in part because they "did not want the review conference to establish precedents for intersessional work".[31]

As noted by Johnson, "Malaysia's proposal for annual high-level consultation meetings could provide a useful mechanism for dialogue and constructive engagement".[32] It would complement rather than undermine the NPT as it would require dialogue between the NPT review process actors and the D-3. Such formal engagement would require NPT state parties to promote actively the benefits and virtues of joining and being party to the Treaty regime to the remaining outsiders. Furthermore, annual meetings with the D-3 might instil some momentum, continuity and depth in the discussions on this issue. In this context, explanations from the D-3 of their expectations and reluctance to join the NPT could be a starting point for addressing the non-universality of the Treaty.

Approaches 3 & 4: Regional nuclear-weapon-free or WMD-free zones

A regional arms control approach is often stipulated as a prerequisite for engaging the D-3 with the nuclear non-proliferation regime. Mohamed ElBaradei recently expressed that "however fervently we might wish it, none of these three [India, Israel and Pakistan] is likely to give up its nuclear weapons or the nuclear weapons option outside of a global or regional arms control framework".[33]

Calls for the establishment of regional approaches to nuclear and WMD arms control are not a new development. Ever since the Tlatelolco Treaty established a nuclear-weapon-free zone (NWFZ) in Latin America and the Caribbean in 1967, such zones have been pursued, resulting in NWFZ covering the Southern Hemisphere and extending to some areas north of the equator. As discussed elsewhere in this issue of Disarmament Diplomacy,[34] the concept of a NWFZ in the Middle East has been linked with calls for a zone free of weapons of mass destruction (WMDFZ) in the region, which takes into account chemical and biological weapons (CBW) as well as nuclear. As such, it seeks to encompass all non-conventional threats within the region and address all parties' regional security concerns.[35] [A brief summary of these regional efforts in the context of the Middle East is provided in Table 2: Regional Arms Control Initiatives in the Middle East.[36] ]

Proponents of such approaches stress that because of the fragile and dependent political and security environments of the Middle East and South Asia, it is necessary first and foremost to address the regional security concerns. Whether or not one accepts the argument that the principal Indian and Pakistani rationale for acquiring and maintaining nuclear weapons was based on regional security concerns, particularly their bilateral threat perceptions, nuclear China must also be factored into the equation.[37] This linkage between the actions of a non-NPT de facto nuclear possessor and the policies and status of a NPT NWS illustrates the linkages between the prospects for D-3 disarmament and the policies and disarmament progress of the P-5 NWS.[38] As unilateral disarmament by a NWS is considered unlikely, the disarmament of at least two of the D-3 may be said to be hinged on progress towards P-5 disarmament.[39]

Similarly, Israel's opaque, yet widely assumed, nuclear arsenal is also seen to be the result of regional insecurity and its perception of threats to its survival from hostile neighbouring states. A WMDFZ in the Middle East would eliminate and prohibit suspected Egyptian, Iranian, Israeli, and Syrian CBW programmes,[40] as well as Israel's nuclear weapons. Such a regional arms control approach stands a better chance of addressing Israel's nuclear weapons programme precisely because it covers all non-conventional weapons in the specified region.

The establishment of NWFZ is not only consistent with the NPT, but encouraged by Article VII of the Treaty.[41] Any regional prohibition of nuclear weapons, or of WMD entirely, would reinforce and strengthen the global nuclear non-proliferation regime, particularly if the region included one of the D-3. Regional approaches have the potential to address the aims of the broader non-proliferation regime whilst satisfying the specific regional political and security concerns.

However, although regional approaches to non-proliferation concerns may appear to be ideal, several immediate obstacles come to mind. These include, but are not limited to the lack of political will, trust, and diplomatic relations between relevant states. Genuine dialogue on regional approaches should be encouraged and support should be provided by external actors, such as security assurances by the P-5 NWS and verification by the IAEA. Such sponsorship of regional initiatives would not only legitimize the undertaking, but also serve to address the extra-regional security concerns of states.

However, regional arms control approaches will not be successful unless states' security concerns - both within and outside their geographical locations - are addressed. In addition, regional security concerns will not be met if states outside the region maintain policies that are hostile to the states contemplating regional non-proliferation and disarmament undertakings.

Approach 5: Individual or collective code of nuclear-energy-related behaviour for non-NPT states

In 1984, M.J. Wilmshurst called for the establishment of a code of nuclear-energy-related behaviour for the non-NPT states and the IAEA.[42] This code of behaviour would either be individual or collective between the six states[43] in question (as viewed in 1984) and the IAEA. Wilmshurst argues that such a code of behaviour would aim to reassure supplier states whilst engaging the non-NPT states in the broader nuclear non-proliferation regime. The code of conduct proposed by Wilmshurst would require states to: 1) place "all imported and indigenous nuclear plants and materials under IAEA safeguards, with the exception of those specified plants and materials that are deemed essential to national security";[44] 2) undertake not to "manufacture nor to test a nuclear explosive device except under circumstance of a grave threat to national security";[45] and 3) commit "to adhere to the NPT as soon as obstacles based on questions of national security have been removed".[46] Wilmshurst stresses that in order to increase the success of acceptance of such an approach, the code of behaviour approach should be sponsored by the IAEA, rather than being state-sponsored, and negotiated in secret in order to minimize political and public pressures.[47]

Like some other proposals, the code of conduct approach attempts to integrate commitment by the non-NPT states to broad nuclear non-proliferation guidelines (i.e. IAEA safeguards, non-manufacturing of nuclear weapons, and observance of a testing moratorium), without requiring the states to join the NPT.

Several criticisms can be made of Wilmshurst's proposed code of behaviour. Firstly, this approach allows the states to opt out of commitments if they conflict with national security interests. The national security exceptions could be loosely interpreted by the state claiming such circumstances. Secondly, although such an approach could be described as a step towards NPT participation, from the perspective of NPT states parties, there could be 'NNWS fallout' caused by compliant NPT NNWS resenting the perceived special treatment and privileges gained from being outside the NPT. Perhaps a way to ameliorate such fallout from the NPT NNWS would be to attach some specific clauses which outline what would constitute an eligible threat to national security. Finally, the third provision of the proposed code of behaviour fails to recognize that security concerns are not the only, or even primary, hindrance or impediment restricting or preventing the D-3 from joining the NPT.

Even before its 1998 nuclear tests, India had been opposed to the NPT, citing the Treaty's inherently discriminatory structure and its imposition on national sovereignty. India's primary stated criticism of the NPT was related to principles and status rather than security per se, and therefore India, from all posture and declaratory indications, was unlikely to be persuaded to join the NPT, even before they explicitly crossed the nuclear threshold by openly conducting the series of nuclear weapons tests.

Approach 6: "Universal compliance"

In 2005, five non-proliferation analysts from the Carnegie Endowment for International Peace (CEIP) published 'A Strategy for Nuclear Security' aimed at achieving "universal compliance with the norms and rules of a toughened nuclear non-proliferation regime".[48] In it, the authors outlined six key action recommendations, one of which is to "solve the three-state problem".[49] The Carnegie authors propose that the D-3 should be persuaded "to accept all of the non-proliferation obligations accepted by the five original nuclear weapons states"[50] but without having to commit to joining the NPT. The commitments could be implemented through the adoption of a Security Council Resolution to supersede UNSC Resolution 1172, adopted in the immediate aftermath of the May 1998 nuclear tests by India and Pakistan. The new resolution would include Israel and "welcome explicit commitments by the three states to forgo nuclear explosive tests, to implement and enforce comprehensive national laws barring sensitive exports, to adopt state-of-the-art technologies and practices to secure all nuclear materials, to participate constructively in Conference on Disarmament negotiations to ban production of fissile material for nuclear weapons or other nuclear explosive purposes, to refrain from increasing the declared and undeclared role of nuclear weapons in their national security policies, and to commit to the peaceful resolution of conflicts".[51]

In this, there are some similarities between this approach, Wilmshurst's code of behaviour (outlined above) and the "as if" protocol proposal (see Approach 8, below). The Carnegie report also notes that, since the D-3 never chose to sign the NPT, they legally "retain the sovereign 'right' to possess nuclear weapons".[52] However, it suggests that the supplier states should continue to apply the 1992 Nuclear Supplier's Group (NSG) Full-Scope Safeguard Policy, stressing that the D-3 "should not be rewarded with trade in nuclear power reactors but should receive cooperation to strengthen nuclear material security and reactor safety".[53] Based on the perspective that the D-3 cannot be expected to "give up their nuclear weapons absent durable peace in their respective regions and progress toward global disarmament"[54] the Carnegie analysts argue that the D-3 "would be expected to eliminate their nuclear arsenals as and when"[55] the P-5 NWS eliminate theirs.

The Carnegie approach is consistent with the NPT. One component that may have negative implications is the requirement for safety and security cooperation for the D-3 civilian nuclear facilities, as such cooperation may be viewed by NPT NNWS as special treatment for the D-3 over and above the rights granted to states which are party to the Treaty. However, it is difficult to argue with the premise for such assistance, as the safety and security of nuclear activity, regardless of legal circumstances, should be a common interest of every state given the potential environmental and human rights ramifications.

Approach 7: Including non-proliferation clauses in bilateral agreements

Another suggested approach to engage the D-3 in the non-proliferation regime consists of incorporating non-proliferation requirements and clauses in bilateral agreements, thus gaining commitments by the signatory states on specific non-proliferation objectives even while they remained outside the formal Treaty. This inclusion of non-proliferation clauses could either be implemented into non-related agreements such as general trade agreements, or into more directly related nuclear energy trade agreements. The first type of agreement is exemplified by the European Union's incorporation of a standardized "non-proliferation of WMD" clause in all bilateral agreements between its members and other states.

Since the adoption of this practice in 2003, with the aim of mainstreaming "non-proliferation policies into the EU's wider relations with third countries", such clauses have been an essential element of all EU mixed agreements with third countries.[56] It allows for the insertion of such a WMD non-proliferation clause into existing mixed agreements "on any occasion of renewal or revision of such agreements".[57] In addition, the policy allows for the EU and its Member States to "propose an amendment of the agreement to the third party if specific WMD-related concerns warranted such action".[58]

Given that the EU's strategy against proliferation of WMD stresses commitments to "the multilateral treaty system, which provides the legal and normative basis for all non-proliferation efforts" and specifically to "pursue the universalization of the NPT",[59] the EU could use this latter provision to revise existing agreements with states of concern, including the D-3 states. As 'the Euro-Mediterranean Partnership offers the only permanent multilateral forum outside the United Nations where Israel and its neighbours regularly meet',[60] this could potentially develop into a forum for dialogue on regional non-proliferation issues, including steps towards the establishment of a WMDFZ or NWFZ in the Middle East.

The second type of bilateral engagement - that is, inclusion of a non-proliferation clause in a civilian nuclear trade agreement - is currently manifested in the March 2006 agreement between President Bush and Prime Minister Singh on a nuclear cooperation plan between the US and India. However, this has become very controversial, and at time of writing is being scrutinized by US and Indian legislators, as well as non-proliferation academics and practitioners.

Although it has not yet been implemented as the agreement still requires exemption from NSG guidelines, the proposed US-India nuclear deal has already created concern amongst the non-proliferation epistemic community. In particular, some present it as tantamount to acceptance of India's nuclear weapons status. US officials responded, saying that the initiative does not "formally recognize India as a nuclear weapon state".[61] They base this argument on the technicality that "India does not meet" the NPT's definition of a nuclear weapon state.[62] Despite this, the operational reality of the agreed separation of the civilian from the military nuclear programme facilities and materials[63] explicitly acknowledges the existence of India's military nuclear programme. US Under Secretary of State for Political Affairs, Nick Burns, accepted the reality of India's nuclear status when stating that the US-India nuclear cooperation initiative is "not a perfect deal in the sense that we [the US] haven't captured 100 percent of India's nuclear programme... because India is a nuclear weapons power, and India will preserve part of its nuclear industry to service its nuclear weapons programme".[64]

From August 2006 remarks to the Indian parliament by Prime Minister Manmohan Singh, it is apparent that India clearly understands the cooperation agreement as an acknowledgement by the US of India's nuclear weapon status, with the same privileges and rights as the NWS defined in the NPT. Singh explained to parliament, that "The July Statement did not refer to India as a Nuclear Weapons State because that has a particular connotation in the NPT but it explicitly acknowledged the existence of India's military nuclear facilities. It also meant that India would not attract full?scope safeguards such as those applied to Non?Nuclear Weapon States that are signatories to the NPT and there would be no curbs on continuation of India's nuclear weapon related activities. In these important respects, India would be very much on par with the five Nuclear Weapon States who are signatories to the NPT".[65]

NNWS in the NPT, some of whom are already disenchanted with the lack of consistent and genuine implementation of commitments under the three pillars of the NPT, will likely view this blatant rewarding of India's military nuclear programme unfavourably. The potential approval of this initiative is detrimental to the NPT as it undermines the basic incentives that encouraged states to join as NNWS, and - more importantly - to remain within the regime, and comply with the Treaty's provisions.[66]

The Bush administration, however, is heralding this agreement as a "gain for non-proliferation"[67] given India's acceptance of "new non-proliferation obligations"[68] in its agreement to "classify 14 of its 22 nuclear facilities",[69] "two thirds of its existing reactors",[70] and about "65 percent of the total installed thermal nuclear power capacity"[71] as civilian facilities and agreeing to place these under IAEA safeguards. In its attempts to sell the deal to the international community, notably the NSG, US officials argue that the initiative is "not the death knell of the NPT", and that "bringing India into the international non-proliferation regime will strengthen the regime", not undermine it.[72]

Diverging views exist on the potential implications of the implementation of the US-India nuclear cooperation agreement. The Bush administration is attempting to gain Congressional and NSG approval of the deal by promoting the agreed separation of India's nuclear infrastructure and the placement of the civilian reactors under permanent IAEA safeguards, arguing that such developments will "strengthen international security" and "enhance energy security and environmental protection" whilst "expanding the reach of the international nonproliferation regime".[73] Mohamed ElBaradei, the IAEA's Director General, has expressed support for the US-India deal as a creative approach to addressing the D-3.[74] He particularly cited the importance of putting India's civil nuclear reactors under the IAEA's nuclear safeguards and noted that the deal will give India access to safe and advanced civilian nuclear technology.[75]

By contrast, in a letter to Congress, Joseph Cirincione and other US analysts caution that "the non-proliferation benefits of the original proposal are overstated and the damage to the non-proliferation regime is potentially high".[76] Furthermore, Cirincione et al warned Congress that "making exceptions to the NPT and longstanding non-proliferation rules compromises the integrity and enforceability of those rules".[77]

Despite the largely negative reception by the non-proliferation community, some have pointed positively to the commitments to a Fissile Material Cut-off Treaty (FMCT) enshrined in the US-India deal. India's Prime Minister Singh, however, addressed his own domestic critics by stating that there is no new position on the FMCT, and India's commitment to FMCT negotiations in the Conference on Disarmament is still in accordance with India's proposed Action Plan in the 1988 UNGA Special Session on Disarmament, which is "complete elimination of nuclear weapons leading to global nuclear disarmament in a time-bound framework".[78] Moreover, in August 2006, Singh confirmed that India is "not willing to accept a moratorium on the production of fissile material". [79]

Singh has also responded to concerns voiced in India's Parliament about the implications of the agreement for India's nuclear weapons programme and national sovereignty. Stating that "the nuclear agreement will not be allowed to be used as a backdoor method of introducing NPT type restrictions on India",[80] Singh confirmed in August 2006 that "India's strategic programme is totally outside the purview of the July Statement, and we oppose any legislative provisions that mandate scrutiny of either our nuclear weapons programme or our unsafeguarded nuclear facilities".[81] From these and other statements, it is apparent that India is not willing to accept any measures that may compromise its nuclear weapons programme, including "intrusive non-proliferation benchmarks that are mentioned in the proposed US legislation", as "India's possession and development of nuclear weapons is an integral part of our [India's] national security".[82] Furthermore, Singh has confirmed that "pending global nuclear disarmament, there is no question of India joining the NPT as a non-nuclear weapon state, or accepting full-scope safeguards as a requirement for nuclear supplies to India, now or in the future".[83]

Irrespective of the main objective of the agreement to which a non-proliferation clause is attached, a crucial question remains as to what extent such a clause would be able to be implemented and enforced. Taking for example the EU WMD non-proliferation clause, the EU policy indicates that "in cases of non compliance by one of the Parties to the agreement with the commitments undertaken under the non-proliferation clause, intensive consultations between the parties would take place similar to the procedure established in article 96 of the Agreement of Cotonou and that the suspension of the agreement would remain the last resort".[84] One interpretation argues that the responsibility for monitoring the implementation of this clause is placed on the EU's Common Foreign and Security Policy working group on non-proliferation (CONOP). If breach is suspected, this working group is supposed to recommend to the European Council that it take action.[85] As noted in the House of Lords European Union Committee Report on the EU's contribution to WMD proliferation prevention, the non-proliferation clause included in an agreement with Syria does not "provide for specific enforcement mechanisms".[86] However, compliance with the WMD clause of these mixed agreements could also be subject to other monitoring and enforcement avenues apart from CONOP consultations, including motions raised by individual member states and possibly by the proposed WMD Monitoring Centre (WMD-MC)[87] within the Council Secretariat. Whether and how the EU and other states might use non-proliferation clauses in future and revised agreements with the D-3 states remain open questions.

Approach 8: "As if" protocol

A further approach, spearheaded in different ways by Avner Cohen, Thomas Graham, Jr., and Sverre Lodgaard, focuses on engaging the D-3 "as if" they were nuclear weapon states with the same rights, responsibilities and obligations as the P-5 NWS.[88] This could be done, for example, through an "associate membership under a separate, freestanding agreement or protocol",[89] thereby avoiding opening the NPT to bring them in as NWS. Such proposals argue that the three-state problem cannot be addressed through unrealistic demands on them to abandon their nuclear weapons programmes and accede to the NPT as NNWS. They claim to offer politically viable options instead of unfruitful declaratory statements. However, as discussed below, the "as if" approach could be argued to benefit the non-NPT states without posing any significant immediate costs to them.[90]

In 2004, Avner Cohen and Thomas Graham Jr. proposed the establishment of a separate protocol or agreement for Israel, India and Pakistan to address the challenge of universality of the NPT.[91] In a study sponsored by the Weapons of Mass Destruction Commission (WMDC),[92] Lodgaard also proposes an additional protocol[93] which would serve to oblige the three NPT outliers to behave "as if" they were members of the NPT.[94] Arguing that this approach is "based on realistic political postures and security perceptions", that "the call for NPT membership leads nowhere"[95] and that it is futile "to lean on India, Israel and Pakistan to join the NPT as NNWS",[96] Lodgaard calls his approach "the best containment strategy to prevent further proliferation".[97]

The purpose of the separate protocol as proposed by Cohen and Graham[98] and Lodgaard[99] is to integrate the D-3 into the non-proliferation regime through participation rather than formal membership.[100] As outlined above, the rationale for universal participation is based on the assumption that the more universal a regime is, the more 'effective' it will be. However, an alternative viewpoint exists. Arguably, the effectiveness of arms control processes could be measured by through assessing the non-proliferation and disarmament objectives achieved through the implementation and adherence to the provisions of the processes. The extent to which states resort to other processes, reaching for tools outside the NPT 'toolbox' to fulfil specific non-proliferation or disarmament objectives, indicates the limitations of the existing NPT process and the non-proliferation regime. A further justification for seeking universality is that it would ensure that all states were bound by the rules of the regime, unlike at present, when non-NPT members are not formally committed to these rules.[101] As suggested above, the provisions of the NPT have become consolidated as customary law, thus binding all states to conform to them, irrespective of NPT status.

Lodgaard argues that the efficiency of a regime will increase as "universality raises the costs of non-compliance by increasing the prospect of collective response and of enforcement of treaty obligation".[102] This argument however is conditional on the political will of the states to enforce such commitments. Proponents of a separate protocol for the non-NPT states could argue that even though the "NPT is the legal and political core of the global nuclear non-proliferation regime",[103] a separate protocol could harmoniously co-exist with the NPT within the broader non-proliferation regime. Given that it is accepted that the NPT does not constitute the entirety of the regime,[104] the success of this approach would rely heavily on the wording of such a protocol and its acceptance by other NPT parties. The other entities comprising the nuclear non-proliferation regime are unambiguously intended to reinforce or implement the objectives set out in the core, which would not necessarily be the case for a separate protocol.

Unless carefully worded, a separate protocol would thus threaten to benefit the non-NPT states whilst potentially affecting the NPT states, particularly the NNWS in less positive ways. Joining a separate protocol would not necessarily represent a sacrifice for the non-NPT states. The benefits they would gain would include increased international legitimacy and status due to their adherence to the non-proliferation regime. Though the protocol would likely impose similar disarmament obligations to those on the NWS within the NPT, these are perceived by many to be 'unchecked' and 'unenforced', unlike the obligations and safeguards on the NNWS.

This approach would have to take into account the views of the NNWS, who might be provoked to reconsider the benefits of their commitment to the NPT. As a result, some NNWS might be tempted to take a closer look at the withdrawal clause. In particular, any move towards recognition of the Israeli nuclear programme by the international community, even in the form of a separate protocol based on non-proliferation and disarmament commitments, could trigger the Middle Eastern NPT state parties, notably Egypt, to reassess their commitments to the Treaty. By the same token, as Israel continues to hold an ambiguous stance, neither confirming nor denying its nuclear capabilities, it is unlikely that it would choose to change its posture anytime soon or accept formal disarmament commitments.

The issue of Iranian past non-compliance with its safeguards agreement and alleged weaponization plans, which has dominated both the IAEA and NPT review process since late 2002, would also factor into the Middle East nuclear non-proliferation equation. Anything less than Israeli accession to the NPT as a NNWS, based on the dismantlement of its ambiguous nuclear weapon programme, may prove to be impossible for the other countries in the Middle East to accept, given the fragile political situation. There is also the risk that moves to establish a separate "as if" protocol, acknowledging the formal recognition of the opaque Israeli nuclear programme,[105] might force the Middle Eastern states to reconsider other WMD non-proliferation regime commitments,[106] perhaps triggering withdrawal and open pursuit of CBW in self-defence.

Another problematic question for this approach is whether the "as if" protocol would remain open for others, for example, in the event of any current NNWS deciding to proceed down the path of "smart proliferation"[107] (i.e. withdraw from the Treaty and pursue weaponization of nuclear programmes built by means of Article IV cooperation and assistance). Cohen and Graham argue that the separate protocol they propose would not be "a solution for member states that have violated or abused the treaty".[108] Insisting that India, Israel and Pakistan never joined the Treaty but Iran and the DPRK did, their envisaged protocol would only be open to the D-3 states. Non-compliant state parties such as "Iran and North Korea must be held to their obligations".[109]

This approach is not likely to be accepted by certain states, particularly compliant NNWS, who would be likely to interpret it as selective application of regime obligations that rewards those states that deliberately held out on joining the NPT.

Approach 9: "As if" protocol with formal disarmament timetable

Lodgaard's approach implied that disarmament commitments would be included in the "as if" protocol. Though compatible with the arguments put forward by Cohen Graham, and Lodgaard, no-one has directly suggested an "as if" protocol that would be coupled with formal and verifiable disarmament commitments with specific timetabled targets and an automatic non-compliance mechanism. Such an approach may be more palatable to the NNWS.

As noted above, a difficulty for proponents of the "as if" protocol is potential 'NNWS fallout' if the protocol is seen to give status and legitimacy to the D-3 without additional and verifiable obligations. The approach would be more complementary to the NPT than an "as if" protocol without any specific and verifiable disarmament obligations. If coupled with greater progress towards implementation of the NPT obligations, including the agreements adopted at the 2000 NPT Review Conference (the 'Thirteen Steps'), this approach might gain significant support. Whether the D-3 would consider accepting such disarmament commitments independent of progress towards disarmament by the P-5 NWS, remains highly doubtful.

Approach 10: Amending the NPT to accommodate the D-3

Recognizing the structural limitations to universal adherence to and inclusion in the NPT, given nuclear realities, two proposals have been floated for amending the NPT's text to accommodate the D-3. Writing in 1984, Wilmshurst proposed amending the NPT by adding "a third, and new, category of member states within the NPT - potential nuclear-weapon states", defined as states that "have acquired the capability to manufacture and test nuclear weapons but have refrained from taking the decisive steps of actual manufacture or testing".[110] After the Indian and Pakistani tests in 1998, only Israel would now qualify as per Wilmshurst's definition.

At the time of his proposal, Wilmshurst aimed his suggestions for treaty amendments to appeal to the threat perceptions and considerations of six states whom for different reasons were not already party to the treaty.[111] Wilmshurst's proposals would require this "third category" of member states to comply with the duties of the existing two categories as outlined in Article I and Article II of the Treaty.

There are several difficulties with this suggestion. It could be argued that even though a third category of 'potential nuclear-weapon state' would deliberately be written into both Article I and II, its presence in Article I alongside 'nuclear-weapon state' would provide it with a special status. Indeed, the mere introduction of such a third category could be interpreted as preferential treatment legitimizing and rewarding the advancements by the states it covered.

Wilmshurst also suggested including under Article X the "right to proceed to the manufacture and testing of nuclear weapons if it [a state] decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country" with a twelve month notice prior to "the actual manufacture or testing of a nuclear weapon". He couples such withdrawal with "a request to the United Nations Security Council to examine the situation and to use its good offices in an attempt to restore the situation to normal, thereby enabling the Party in question to withdraw its notice and to cancel its decision".[112] Recognizing that his proposed amendments for the NPT were "most unlikely",[113] Wilmshurst also proposed a code of behaviour for states not party to the NPT, as discussed above in Approach 6.[114]

A second variation on proposed amendments for the NPT's text to accommodate the D-3[115] into the NPT is one component in Ephraim Asculai's arguments for creating a new nuclear non-proliferation regime.[116] Asculai's proposal suggests redefining the "purpose of verification" within the NPT framework, to one of safeguards only of "the flow of fissile materials", rather than "safeguarding the flow of source and special fissionable materials".[117] In order to adapt the Treaty's text to this refined objective, he proposes several changes to the text of the NPT. Asculai suggests specific amendments to the text of the preamble, Article I, and Article III, to enable substituting most references to "source or special fissionable material" with "fissile material", and omitting several specific references to state categories. Asculai argues that redefining the purpose of verification and broadening the scope of the NPT's articles, particularly the rights and obligations of states parties, would allow the D-3 to join the NPT.[118]

It can be argued that Asculai's proposed amendments, if implemented, would provide the D-3 with a status equal to that of the current P-5 NWS. Therefore it would fail to address the concerns of NNWS opposed to providing the D-3 with preferential status. Furthermore, it also goes against all the enhancements to the safeguards regime since 1991.

A different proposal for addressing the disarmament objective of the NPT through amendments to the Treaty would also ultimately address the D-3 issue, and make the Treaty universal.[119] During the NGO session to the 1997 NPT PrepCom, Zia Mian, from Princeton University and the Sustainable Development Policy Institute (Pakistan), proposed that states could address the lack of progress on the disarmament commitment through calling for an amendment conference.[120] Mian suggested that if sufficient support exists, an amendment could effectively transform the NPT into a nuclear weapons convention, and "the conference that would be called would de facto become a conference to negotiate the [Nuclear Weapon] Convention".[121] Mian's proposal mirrors the initiative by parties to the 1963 Partial Test Ban Treaty (PTBT) which gathered enough support to hold an Amendment Conference in 1991. The proposed amendment would have converted the PTBT into a Comprehensive Test Ban Treaty. Though this did not survive the opposition of some of the NWS, the Amendment Conference added to the pressure on them to negotiate a CTBT. Despite this political precedent, Mian's assumption that all states would have to attend the conference given that states, particularly NWS could not justify not attending such a conference, given Article VI commitments, is problematic.[122] It is foreseeable that NWS would be opposed to a suggested amendment which only targets one pillar of the treaty, particularly disarmament.

Many practitioners and analysts have argued that proposals to amend the NPT are not advisable for a variety of practical reasons.[123] To date there has not been an amendment proposal submitted to the depositary governments of the NPT. As there is no precedent, various interpretations exist of the provisions and processes for amending the Treaty, as contained in Article VIII.1-2. Some analysts believe that a motion to amend the NPT could precipitate the regime's collapse.

One interpretation of Article VIII.1 of the NPT is that any motion to amend the treaty would open up all its provisions to amendment at an eventual agreed special conference. There also exists uncertainty about whether the setting for such discussion of an amendment would in fact take the form of a special conference or during a scheduled review conference. Further complicating this matter, one can assume that if opposition exists to particular proposed amendments by parties to the Treaty, there are also practical and procedural manoeuvres, such as refusal to finance a conference, which they might employ to prevent a conference from convening. Furthermore, given the evolution of the review process, there are various interpretations of what role and responsibility the depositary governments of the Treaty continue to have vis-à-vis the review - and therefore also amendment - process.

There are significant practical obstacles that would have to be considered. Under the most simplified interpretation and application of Article VIII.1-2, assuming a conference for the consideration of a proposed particular amendment to the NPT is convened, any successful amendment would require approval "by a majority of the votes of all the Parties to the Treaty, including the votes of all nuclear-weapon States Party to the Treaty and all other Parties, which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency".[124] Moreover, entry into force for amendments is not defined, but it is assumed that in order for an amendment to enter into force for a given state party, the state party would have to sign, ratify and deposit the amendment. Therefore, if a state party opposes a proposed and approved amendment, there is no provision in the Treaty or in the review process to prevent a particular state choosing never to ratify the amendment. This could risk weakening the regime by creating two versions of the NPT. Although at a certain point the general obligations of customary law would be deemed to apply, there is likely to be a period when the amendment applies to some but not all NPT states parties.

Conclusion

This article has assessed the current proposals for including the D-3 in the nuclear non-proliferation regime. It highlights a few basic recommendations for future proposals. Such approaches:

• should not weaken the regime by undermining commitment to the NPT's three pillars;
• should not 'reward' the D-3 states by providing them with benefits and exceptional privileges which the NPT NNWS are not entitled to and should not be seen to legitimize their programmes; and
• should engage the D-3 through strengthening regime norms in order to pursue non-proliferation and disarmament objectives and promote practical commitment and actions by the non-NPT states in support of regime aims.

In the meantime, the international community needs to begin taking steps to remove incentives to maintain or acquire nuclear weapons. In doing so, states within the non-proliferation regime should genuinely aim to address the political and security conditions which may be maintaining the value of nuclear weapons, not only for the D-3 but also any NNWS who may be reassessing their own non-proliferation commitments or hedging their bets. In conjunction with this, it will be important for the P-5 NWS to lead by example and reduce the roles and salience of nuclear weapons in their security postures. As illustrated by the UK decision over the future of its nuclear weapon policy, such developments and actions by the P-5 NWS will continue to have effects on the broader nuclear non-proliferation regime - including, although perhaps indirectly, the D-3 outside of the regime.

From the preceding description of the existing proposals to address the lack of universality of the NPT, it is evident that key issues and questions need further analysis. Given the current political and security milieu, none of the ten proposals presents an ideal or feasible approach. In view of the potential damage which some of the proposed solutions could cause to the foundation of the nuclear non-proliferation regime, the NPT, perhaps it could be woefully concluded that the status quo remains the best option available immediately.

Even so, the international community should not abandon the goal of attaining universal subscription to norms and provisions contained in the arms control treaties that anchor the broader non-proliferation regimes. Genuine dialogue on this objective should be encouraged without debilitating and potentially damaging the accrued virtue and credibility of the foundational treaties. It is hoped that this report will encourage the development of a more politically viable approach. Alternately, if no such approach exists, it may serve as a gentle reminder that progress will depend on fomenting the conditions which would make one of the approaches more palatable and feasible.

Notes

[1] Rebecca Johnson first coined the "D-3" abbreviation for the three de facto possessors of nuclear weapons which remain outside the NPT. See, Rebecca Johnson, 'The NPT in 2004: Testing the Limits', Disarmament Diplomacy 76 (March/April 2004), pp 3-6.

[2] Marvin Miller and Lawrence Scheinman, 'Israel, India, and Pakistan: Engaging the Non-NPT States in the Nonproliferation Regime', Arms Control Today, 33,:10 (December 2003), p18.

[3] Although India conducted a test of an explosive nuclear device in 1974, in May 1998 both India and Pakistan conducted a series of nuclear tests. Israel has pursued an ambiguous policy without openly confirming a successful nuclear test and adopting an official position of neither confirming nor denying its capabilities. However, in an interview in December 2006, Israeli Prime Minister Ehud Olmert grouped Israel among other nuclear weapon states. See, Greg Myre, 'In a Slip, Israel's Leader Seems to Confirm Its Nuclear Arsenal', New York Times, December 12, 2006, http://www.nytimes.com/2006/12/12/world/middleeast/12olmert.html?
_r=1&pagewanted=print&oref=slogin.

[4] Mohamed ElBaradei, 'Rethinking Nuclear Safeguards', Washington Post, June 14, 2006, A23, http://www.washingtonpost.com/wp-dyn/content/article/2006/06/13/AR2006061301498.html.

[5] See, Rebecca Johnson, 'Politics and Protection: Why the 2005 NPT Review Conference Failed', Disarmament Diplomacy 80 (Autumn 2005); William Potter, 'The 2005 NPT Review Conference: 188 States in Search of Consensus', The International Spectator, Vol. XL (July-September 2005); John Simpson and Jenny Nielsen, 'The 2005 Non-Proliferation Treaty Review Conference: Mission Impossible?' The Nonproliferation Review, Vol. 12, No. 2 (Summer 2005).

[6] According to US policy, India, Israel, and Pakistan remain 'non-rogue' states, despite operating in defiance of international norms, through actions including possessing nuclear weapons and rejecting international arms control treaties. In addition, there are concerns about Israel's and Pakistan's questionable adherence to certain principles of constitutional democracy.

[7] Although Pakistan claims it had no involvement in the proliferation network activities run by A.Q. Khan, some analysts doubt this. Pakistan has insisted on conducting all investigations and interviews surrounding the Khan activities, preventing direct access by foreign intelligence agencies to Dr. Khan. The IAEA has been allowed to question Dr Khan only indirectly, as Pakistani officials remain the intermediary between the Agency and Dr. Khan. See, 'Hearing before the Subcommittee on Terrorism and Nonproliferation of the Committee on International Relations, House of Representatives', The A.Q. Khan Network: Case Closed?, 109th Cong., 2nd sess., May 25, 2006, Serial No. 109-182, pp2-16, http://www.internationalrelations.house.gov/109/27811.pdf; Seymour M. Hersh, 'The Deal', New Yorker, March 8, 2004, http://www.newyorker.com/printables/fact/040308fa_fact; 'Spiegel interview with Mohamed ElBaradei, Al-Qaida also Wants the Bomb', Spiegel Online International, February 21, 2005, http://www.iaea.org/NewsCenter/Transcripts/2005/derspiegel21022005.html; 'Work in Progress', IAEA Bulletin, Vol. 47, No.2, (2006), p33, http://www.iaea.org/Publications/Magazines/Bulletin/Bull472/pdfs/
nobel_work.pdf#search=%22Khan%20Pakistan%22.

[8] Sverre Lodgaard, 'Making the non-proliferation regime universal: Asking non-parties to behave "as if" they were members', WMDC Paper, No 7 (2004), p11, http://www.wmdcommission.org/files/No7-Lodgaard%20Final.pdf.

[9] Ibid.

[10] Avner Cohen, 'The Last Taboo', Haaretz, April 23, 2004, http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=418891.

[11] Most recently, during the December 2006 US Senate Confirmation Hearing of Secretary of Defense Robert Gates, in a response to a question regarding Iranian nuclear activities, Gates acknowledged the Pakistani and Israeli nuclear programmes Gates replied "They [the Iranians] are surrounded by powers with nuclear weapons: Pakistan to their east, the Russians to the north, the Israelis to the west and us in the Persian Gulf". See, Transcript: Confirmation Hearing of Robert Gates to Be Secretary of Defense, December 5, 2006, http://media.washingtonpost.com/wpsrv/politics/documents/
rgates_hearing_120506.html.

[12] If Israel's nuclear weapon status were to be acknowledged by the international community, it is likely that Arab states and Iran would not only renounce commitments to the NPT, but also re-consider the virtue in adhering to voluntary constraints imposed by other WMD-related regimes as some Arab states link their stance on the BWC and the CWC to the Israeli posture towards the NPT. Egypt for example, holds that it "is ready to sign and ratify it (the CWC) together with the BWC when Israel joins the NPT". See, Ehab Fawzy, 'Statement of Egypt by Ehab Fawzy, Deputy Assistant Foreign Minister for Political Affairs', paper presented at the Conference on The Middle East Weapons of Mass Destruction Free Zone, Centre for International Studies and Diplomacy & The British Pugwash Group, SOAS, London, November 7, 2006, p 6.

[13] For text of the German proposals vis-à-vis Article X.1, see NPT/CONF.2005/PC.III/WP.15, Strengthening the NPT against withdrawal and non-compliance Suggestions for the establishment of procedures and mechanisms: Working paper submitted by Germany, April 29, 2004. http://daccessdds.un.org/doc/UNDOC/GEN/N04/
331/08/PDF/N0433108.pdf?OpenElement.

[14] For text of the French proposals on Article X.1 see NPT/CONF.2005/PC.III/WP.22, Strengthening the nuclear non-proliferation regime: Working paper submitted by France, May 4, 2004, http://daccessdds.un.org/doc/UNDOC/GEN/N04/
337/21/PDF/N0433721.pdf?OpenElement

[15] Nina Tannenwald, 'The Nuclear Taboo and the Nuclear Nonproliferation Regime', Prepared Remarks to the 2005 Carnegie Endowment Nonproliferation Conference, For the panel: The Taboos, Secrets and Hidden History of Nuclear Weapons, November 7, 2005, Washington, D.C., http://www.carnegieendowment.org/static/npp/2005conference/
presentations/tannenwald_remarks.pdf.

[16] Nina Tannenwald, 'Stigmatizing the Bomb: Origins of the Nuclear Taboo', International Security, Vol. 29, No. 4 (Spring 2005), pp 5-49.

[17] Tannenwald argues that "the nuclear taboo and the non-proliferation norm have been mutually reinforcing". Tannenwald, 'The Nuclear Taboo and the Nuclear Nonproliferation Regime', p 3.

[18] The agreed "13 steps" towards disarmament in 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, NPT/CONF.2000/28, Volume I, Part I, pp14-15, para.15, http://disarmament.un.org/wmd/npt/2000FD.pdf.

[19] Jean du Preez argues that the D-3 would only consider disarming when the 5 NWS disarm. See Testimony by Jean du Preez, Director, International Organizations and Nonproliferation Program, Center for Nonproliferation Studies, Monterey Institute of International Studies, April 28, 2005, Previewing the Nuclear Nonproliferation Treaty Conference, House Committee on International Relations, Subcommittee on International Terrorism and Nonproliferation, p7, http://www.internationalrelations.house.gov/archives/109/dup042805.pdf.

[20] In 1976, Alva Myrdal argued that "nothing will prevent a run toward world-wide proliferation of nuclear weapons except a change in the position of those nuclear powers". Since 1976, the NPT has notably gained universality except for the D-3 and potential nuclear states have foregone weaponization. See, Statement of Alva Myrdal, Former Swedish Cabinet Minister, Member of Parliament, and Ambassador, Nonproliferation Issues, Hearings before the Subcommittee on Arms Control, International Organizations and Security Agreements of the Committee on Foreign Relations, United States Senate, 94th Cong., 1st and 2nd Sessions on Nonproliferation Issues, November 8, 1976, p 378.

[21] Anthony DiFilippo, 'Breaking the NPT Stalemate: Japan Could Help', Foreign Policy in Focus (FPIF Commentary), June 21, 2005, http://www.fpif.org/fpiftxt/850.

[22] Ibid.

[23] At the time of the proposal in 1999, Cuba had not yet acceded to the NPT.

[24] Working Paper from Malaysia, Preparatory Committee for the 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2000/PC.III/26, 18 May 18, 1999, http://f40.iaea.org/worldatom/Press/Events/Npt/
NPT_Conferences/npt1999_report.PDF.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] In the first year following Review Conferences, there is no formal NPT meeting.

[30] Rebecca Johnson, 'The 2000 NPT Review Conference: A Delicate, Hard-Won Compromise', Disarmament Diplomacy 46 (May 2000), p2.

[31] Ibid.

[32] Memorandum submitted by Rebecca Johnson, The Acronym Institute for Disarmament Diplomacy, Select Committee on Foreign Affairs, Minutes of Evidence, House of Commons, UK Parliament. Available from: http://www.publications.parliament.uk/pa/cm199900/
cmselect/cmfaff/407/0040409.htm

[33] ElBaradei, 'Rethinking Nuclear Safeguards'.

[34] Rebecca Johnson, "Rethinking Security Interests for a Nuclear-Weapon-Free Zone in the Middle East"; and Merav Datan, "Building Blocks for a WMD Disarmament Regime in the Middle East", Disarmament Diplomacy 86 (this issue), Autumn 2007.

[35] The author qualifies the efforts to date on the establishment of a NWFZ/WMDFZ in the Middle East as a limited success, due to the dialogue and serious consideration this pursuit has fomented. In this assessment, the author is cognizant that she is adopting the view that such regional pursuits consist of a process and not an end-state.

[36] See also Rebecca Johnson, "Rethinking Security Interests for a Nuclear-Weapon-Free Zone in the Middle East"; and Merav Datan, "Building Blocks for a WMD Disarmament Regime in the Middle East", Disarmament Diplomacy 86 (this issue), Autumn 2007.

[37] George Perkovich, Jessica Matthews, Joseph Cirincione, Rose Gottemoeller, and Jon Wolfsthal, Universal Compliance: A Strategy for Nuclear Security (Washington DC: Carnegie Endowment for International Peace, 2005), p 44.

[38] Ibid.

[39] Ibid.

[40] Joseph Cirincione, Jon Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear, Biological, and Chemical Threat, 2nd ed., (Washington, DC: Carnegie Endowment for International Peace, 2005).

[41] The Tlatelolco Treaty, which established a NWFZ in Latin America, preceded the NPT.

[42] See M J Wilmshurst, 'Reforming the Non-Proliferation System in the 1980s', in John Simpson and Anthony G McGrew, eds., The International Nuclear Non-Proliferation System: Challenges and Choices (London and Basingstoke: MacMillan Press, 1984), pp149-150.

[43] At the time of Wilmshurst's writing, there were six states not party to the NPT, including the remaining D-3.

[44] Wilmshurst, 'Reforming the Non-Proliferation System in the 1980s', p 150.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] George Perkovich, Jessica Matthews, Joseph Cirincione, Rose Gottemoeller, and Jon Wolfsthal, Universal Compliance: A Strategy for Nuclear Security (Washington DC: Carnegie Endowment for International Peace, 2005), pp 42-49.

[49] Ibid, pp 42-49.

[50] Ibid, p 43.

[51] Ibid, p 47.

[52] George Perkovich, 'Strengthening non-proliferation rules and norms: the three state problem', Disarmament Forum 4 (2004), p 21, http://www.unidir.org/pdf/articles/pdf-art2187.pdf.

[53] Ibid, p 42.

[54] Ibid, p 43.

[55] Ibid, p 44.

[56] The Council of the European Union adopted the text of the non-proliferation clause on 17 November 2003. For full text of the clause, see Council of the European Union, DGE WMD, 14997/03, November 19, 2003, http://ue.eu.int/uedocs/cmsUpload/st14997.en03.pdf.

[57] Council of the European Union, DGE WMD, 14997/03, Annex b, p 2.

[58] Ibid.

[59] Council of the European Union, DGE WMD, 15708/03, Fight against the proliferation of weapons of mass destruction-EU strategy against proliferation of Weapons of Mass Destruction, December 10, 2003, Chapter II, A, p 6, para. 16, http://consilium.europa.eu/uedocs/cmsUpload/st15708.en03.pdf.

[60] Council of the European Union, 14796/03 Fourth Meeting of the Association Council EU-Israel, November 17-18, 2003, Brussels, p 7, para. 7, http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/er/77932.pdf.

[61] Press Briefing by Under Secretary of State for Political Affairs Nick Burns, Maurya Sheraton Hotel and Towers, New Delhi, India, Office of the Press Secretary, The White House, March 2, 2006, p 3, http://www.whitehouse.gov/news/releases/2006/03/20060302-11.html.

[62] India Civil Nuclear Cooperation: Responding to Critics, Office of the Press Secretary, The White House, March 8, 2006, http://www.whitehouse.gov/news/releases/2006/03/20060308-3.html.

[63] Under the agreed cooperation initiative, "65 percent of India's overall power sector would come under civilian safeguards" which would be "safeguards in perpetuity". see Press Briefing by Under Secretary of State for Political Affairs Nick Burns, March 2, 2006, p 5, http://www.whitehouse.gov/news/releases/2006/03/20060302-11.html.

[64] Ibid, p 4.

[65] Statement of PM in Rajya Sabha on the India- US Nuclear Agreement, August 17, 2006, New Delhi, para. 13(iv), http://pmindia.nic.in/speeches.htm.

[66] Cirincione et al included this caution to US Congress in February 2006. They warned that "'responsible' non-nuclear weapon states had remained true to the original NPT bargain and forsworn nuclear weapons in return for access to peaceful nuclear technology under strict and verifiable control. Many of these states made this choice despite strong pressure to spurn the NPT and pursue the nuclear weapons path. They might make different choices on other critical nuclear nonproliferation issues in the future if exceptions are made for other countries." See Cirincione et al 'Clarifying the Record on the July 18 Proposal for Nuclear Cooperation with India', Letter to the U.S. House of Representatives from a bipartisan group of non-proliferation experts, Cirincione et al, February 14, 2006, p 6, http://www.armscontrol.org/pdf/20060214_India_Clarifying_Responses.pdf.

[67] See Press Briefing by Under Secretary of State for Political Affairs Nick Burns, March 2, 2006, p1.

[68] Ibid.

[69] 'US and India seal nuclear accord', BBC News, March 2, 2006, http://news.bbc.co.uk/1/hi/world/south_asia/4764826.stm.

[70] Condoleezza Rice, US Secretary of State, 'Our Opportunity with India', The Washington Post, March 13, 2006, http://www.state.gov/secretary/rm/2006/63008.htm.

[71] Suo-motu Statement by the PM on Civil Nuclear Energy Cooperation with the United States, February 27, 2006, (Prime Minister Manmohan Singh statement to Indian Parliament), http://pmindia.nic.in/speeches.htm.

[72] 'US lobbies for India nuclear deal', BBC News, March 23, 2006, http://news.bbc.co.uk/1/hi/world/south_asia/4839128.stm.

[73] Condoleezza Rice, 'Our Opportunity with India', op. cit.

[74] See, ElBaradei, 'Rethinking Nuclear Safeguards', and 'IAEA Director General Welcomes U.S. and India Nuclear Deal', IAEA Press Release 2006/05, March 2, 2006, http://www.iaea.org/NewsCenter/PressReleases/2006/prn200605.html

[75] 'Anger, Frustration and Humiliation Abound: Spiegel Interview with IAEA Chief Mohamed ElBaradei', July 27, 2006, http://service.spiegel.de/cache/international/spiegel/0,1518,428788,00.html.

[76] Cirincione et al, 'Clarifying the Record on the July 18 Proposal for Nuclear Cooperation with India', p 6.

[77] Ibid.

[78] Statement of PM in Rajya Sabha on the India-US Nuclear Agreement, August 17, 2006, PM response to question 5.

[79] Ibid. para. 13(vii).

[80] Ibid. PM response to question 1.

[81] Ibid..para. 13(iv).

[82] Ibid.. para. 13(ix).

[83] Ibid.. para. 13(viii).

[84] Council of the European Union, DGE WMD, 14997/03, Annex, e, p 3.

[85] Weapons of Mass Destruction (EUC Report), Hansard, House of Lords, July 14, 2005: Column 1335, http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds05/text/50714-29.htm.

[86] House of Lords, European Union Committee, 13th Report: Preventing Proliferation of WMD: The EU Contribution, p12, para.23, http://www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/96/96.pdf#
search=%22HL%20Paper%2096%20Proliferation%20weapons
%20of%20Mass%20Destruction%22.

[87] Council of the European Union, 16694/06 EU Strategy against the proliferation of WMD: Monitoring and enhancing consistent implementation (Concept Paper), December 12, 2006, Brussels, http://register.consilium.europa.eu/pdf/en/06/st16/st16694.en06.pdf

[88] Avner Cohen, Thomas Graham, Jr., and Sverre Lodgaard propose such an entity in their articles. See, Cohen and Graham, Jr., 'An NPT for non-members', pp 40-44; and Lodgaard, 'Making the non-proliferation regime universal: Asking non-parties to behave "as if" they were members'.

[89] Avner Cohen and Thomas Graham, Jr., 'An NPT for non-members', Bulletin of Atomic Scientists, Vol.60, No.3 (May/June 2004), p 44.

[90] The costs would be higher for Israel, given that it would have to discontinue its posture of nuclear opacity by joining an eventual protocol.

[91] Cohen and Graham 'An NPT for non-members'.

[92] The Weapons of Mass Destruction Commission (WMDC) is also known informally as the Blix Commission, after its Chairman, Hans Blix. The WMDC is commissioned by the Swedish Government and is tasked with presenting proposals aimed at the greatest possible reduction of the dangers of weapons of mass destruction.

[93] Not to be confused with the IAEA's INFCIRC/540, The Model Protocol Additional to the agreement(s) between state(s) and the International Atomic Energy Agency for the application of safeguards, also commonly referred to as the Additional Protocol.

[94] Lodgaard, 'Making the non-proliferation regime universal: Asking non-parties to behave "as if" they were members'.

[95] Ibid, p 4.

[96] Ibid, p 4.

[97] Lodgaard argues that "policies usually work best when based on fact and not on fiction, and the fact is that Israel, India and Pakistan are NWS and will so remain". Lodgaard, 'Making the non-proliferation regime universal: Asking non-parties to behave "as if" they were members', p 4.

[98] Cohen and Graham, 'An NPT for non-members'.

[99] Lodgaard, 'Making the non-proliferation regime universal: Asking non-parties to behave "as if" they were members'.

[100] The deficit created by the three outliers is that "any state which is outside the NPT and has nuclear-weapon capabilities can be regarded as constituting a threat to the nuclear non-proliferation regime, insofar as it has made no legal commitment not to assist others to acquire nuclear weapons and it possesses the means to do so". John Simpson, 'Core Non-Proliferation Regime Problems: Universality and Non-compliance', paper presented at the PPNN and CNS Briefing Seminar on the Preparations for the Preparations-The 2002 Preparatory Committee for the NPT Review Conference of 2005, L'Imperial Palace Hotel, Annecy, France, March 8-9, 2002, p 6 (2002), http://www.mcis.soton.ac.uk/Annecy2002March/SIMPSON-Annecy.pdf.

[101] Perkovich, 'Strengthening non-proliferation rules and norms-the three-state problem'.

[102] Lodgaard, 'Making the non-proliferation regime universal: Asking non-parties to behave "as if" they were members', p 11.

[103] Lawrence Scheinman, 'Engaging Non-NPT parties in the Nuclear Non-proliferation regime', Programme for Promoting Nuclear Non-Proliferation (PPNN) Issue Review No 16 (1999), p 2, http://www.ppnn.soton.ac.uk/ir16.pdf.

[104] Ibid.

[105] This is assuming that the highly unlikely takes place and Israel decides to alter its ambiguous stance vis-à-vis nuclear capabilities.

[106] These include non-proliferation commitments, including the BWC and CWC. This is applicable to commitments to which states are currently party to, but evaluation of future commitments can also be affected.

[107] The term "smart proliferation" is taken - with due note of the attendant irony - from Ambassador Chung Yung-woo, "Strengthening the Global Nuclear Nonproliferation Regime", Plenary 7, United Nations Conference on Disarmament Issues in Sapporo, Japan, 26-29 July 2004; Lew Kwang-Chul, 'The Korean Nuclear Divide: View from the South', Disarmament Diplomacy 81 (Winter 2005), p.50; 55.

[108] Cohen and Graham, 'An NPT for non-members', p 44.

[109] Ibid.

[110] Wilmshurst, 'Reforming the Non-Proliferation System in the 1980s', pp 145-149. The draft text of the amended Treaty as proposed by Wilmshurst is contained in: 'Appendix A: The 1968 Treaty on the Non-Proliferation of Nuclear Weapons and Possible Amendments', in John Simpson and Anthony G. McGrew, eds., The International Nuclear Non-Proliferation System: Challenges and Choices (London and Basingstoke: MacMillan Press), pp 185-191.

[111] The six 'potential nuclear-weapons states' which Wilmshurst identified in 1984 were Argentina, Brazil, India, Israel, Pakistan, and South Africa.

[112] Wilmshurst, 'Appendix A: The 1968 Treaty on the Non-Proliferation of Nuclear Weapons and Possible Amendments', p 191.

[113] Wilmshurst, 'Reforming the Non-Proliferation System in the 1980s', p 147

[114] As summarized in the previous section, "Approach 6: Individual or collective code of nuclear energy related behaviour for non-NPT states".

[115] Ascualai uses the term "Other States (OS)" to refer to the three states that are not party to the NPT. See, Ephraim Asculai, 'Rethinking the Nuclear Non-proliferation Regime', Memorandum No.70, (June 2004), The Jaffee Center for Strategic Studies, Tel Aviv University, http://www.tau.ac.il/jcss/memoranda/memo70.pdf.

[116] Ibid.

[117] Ibid, p 21.

[118] These proposed amendment changes are explained in detail in Asculai's document. Asculai, 'Rethinking the Nuclear Non-proliferation Regime', pp 20-21.

[119] Rebecca Johnson, 'Reviewing the NPT: the 1997 PrepCom', Disarmament Diplomacy 14 (April 1997), p 18.

[120] Zia Mian, 'NGO Statement on the Abolition of Nuclear Weapons', presented to the 1997 NPT PrepCom, United Nations, New York, April 16, 1997, http://disarm.igc.org/oldwebpages/nptngo97.html#
NGO%20STATEMENT%20ON%20THE%20ABOLITION.

[121] Ibid.

[122] Ibid. See also, Zia Mian and M.V. Ramana, 'Diplomatic Judo: Using the NPT to Make the Nuclear-Weapon States Negotiate the Abolition of Nuclear Weapons', Disarmament Diplomacy 36 (April 1999).

[123] Some argue that "amending the NPT would be impractical and inadvisable". See, Joseph Cirincione, and Marshall Breit, 'Rebuilding the Nuclear Non-Proliferation Regime', (no publication date available), http://www.un-globalsecurity.org/pdf/cirincione_breit.pdf. Lawrence Scheinman refers to amending the treaty as "a difficult process with a very problematic outcome since to be bound a state would have to go through the treaty amending process that could have outcomes not dissimilar from what transpired with the CTBT in the United States". See, Lawrence Scheinman, 'Article IV of the NPT: Background, Problems, Some Prospects', WMDC Paper No. 5. (2004), p 6, http://www.wmdcommission.org/files/No5.pdf. Bruno Tertrais has "argued that any effort to amend the NPT will be a 'non-starter' ". See, Bruno Tertrais, 'Session VI; Strengthening the NPT Regime (Part II)', paper presented at the workshop on New Proliferation Challenges: Dealing with Hard Cases and Strengthening the Regime, May 5-7, 2004, London, convened by IISS, WWICS, USIP, and ENSS, http://www.eisenhowerseries.com/pdfs/final_04/Nonpro.pdf. Cohen and Graham, Jr. argue that "to amend the NPT and admit the three as nuclear weapon states is a political impossibility". See, Cohen and Graham, Jr., 'An NPT for non-members', p 44.

[124] Treaty on the Non-proliferation of nuclear weapons, Article VIII.2, 1968.

Table 1: Overview of proposals for engaging the D-3 in the nuclear non-proliferation regime

Current status of the D-3: India, Israel, Pakistan exist and operate as nuclear states outside the NPT without any formal non-proliferation commitments.

Table 2: Regional Arms Control Initiatives in the Middle East

Jenny Nielsen is a PhD student researching US nuclear non-proliferation policy vis-à-vis Iran at the University of Southampton, UK. She also assists on research projects relating to the NPT and its review process at the Mountbatten Centre for International Studies (MCIS). The views in this paper are the sole responsibility of the author and do not necessarily reflect the views or opinions of MCIS or the University of Southampton. The author wishes to thank Rebecca Johnson for her generous editorial support and assistance with this article.

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