Disarmament Diplomacy
Issue No. 91, Summer 2009
A Fissile Material (Cut-off) Treaty:
Some Observations on Scope and Verification
Paul Meyer
There are few objectives in the nuclear non-proliferation and
disarmament realm as long- standing and as widely supported as the
negotiation of a treaty banning the production of fissile material
for nuclear weapons or other explosive devices. As early as 1957,
the UN General Assembly in its Resolution 1148 called for the
cessation of such production. In addition to UN General Assembly
resolutions in favour of negotiating a treaty to ban fissile
material production, states parties to the nuclear
Non-Proliferation Treaty (NPT) attached high priority to the
conclusion of such a treaty. In consensus agreements from the 1995
NPT Review and Extension Conference and the 2000 NPT Review
Conference states parties specifically tasked the Conference on
Disarmament (CD) in Geneva to commence immediate negotiations on
this treaty. Indeed the 2000 Review Conference stipulated that the
negotiations should be concluded within five years.
The year 2005 came and went without FM(C)T[1] negotiations in the 65 member state CD having
started, let alone been concluded. The CD has been ensnarled in a
protracted impasse over approval of a Programme of Work that under
its strict consensus rules requires annual renewals and has
effectively meant that official work on an FM(C)T ceased in
1998.
In May 2009, there was a short-lived euphoria, when the CD
managed to overcome its 11 year gridlock and actually agree on a
Programme of Work, which included convening of a Working Group to
start FM(C)T negotiations. Subsequent manoeuvring and the
generation of spurious procedural objections on the part of a
couple of member states (principally China and Pakistan) have
prevented any operationalization of the agreed Programme of Work
during the CD's 2009 session. Given the CD's procedural requirement
for annual renewal of a Programme of Work, the whole enterprise
will be subject to new decisions in January 2010 (and thus to the
possibility of further diplomatic sabotage in translating a
Programme of Work into a functioning work programme).
Even so, after more than a decade of stalemate, an optimist
might be excused for taking the formal adoption of the 2009 CD
Programme of Work as a politically significant development and a
harbinger of progress to come. Certainly the advent of the Obama
Administration, with its re-embrace of a verifiable FM(C)T as a
goal and its broader commitment to advancing purposefully along the
road to a nuclear weapons free world, as expressed by President
Obama in his Prague Speech on 5 April, has created an atmosphere
more conducive to nuclear disarmament. The renewed commitments to
"leading by example" in nuclear arms reduction expressed at the 6
July Obama-Medvedev Summit also sent a positive signal to the
international community. This signal of renewed engagement by the
two leading nuclear weapons powers is especially significant in the
run-up to the May 2010 NPT Review Conference. Within this context,
the negotiation (or even the initiation of a negotiating process)
of an FM(C)T would have great resonance given its high standing
amongst the agreed disarmament priorities of the NPT states.
Given this more propitious international environment and the
almost universal support for an FM(C)T in declaratory policy, what
is the best way to channel this seemingly positive political will
and actually get the negotiations underway? As the "seemingly"
qualifier suggests, one of the problems facing an FM(C)T is that
the consensus in favour of it is more apparent than real.
Shannon's Report and Mandate
The agreed negotiating mandate for the treaty dates back to
March 1995 when the CD adopted it. Generally referred to as the
"Shannon Mandate" (named after the late Canadian Ambassador Gerald
Shannon who had formulated it), this was the basis for subsequent
consensual resolutions in the UN General Assembly and similar
agreed decisions in the 1995 and 2000 NPT Review Conferences. The
key direction contained in the mandate is for the responsible Ad
Hoc Committee of the Conference "...to negotiate a
non-discriminatory, multilateral and internationally and
effectively verifiable treaty banning the production of fissile
material for nuclear weapons or other nuclear explosive devices".
What is sometimes overlooked however is that Ambassador Shannon's
report also recorded that delegations held differing views as to
"the appropriate scope of the convention", specifically whether
past as well as future production should be considered and that "it
has been agreed by delegations that the mandate for the
establishment of the Ad Hoc Committee does not preclude any
delegation from raising for consideration in the Ad Hoc Committee
any of the above noted issues".[2] In brief, the core issue of the scope of the treaty
remains an open question and the external veneer of consensus in
the treaty's favour is actually paper thin.
Scope
The position taken by states on the scope issue is a function of
their perception as to what is in their best strategic interest. It
is also reflected in the relative weight states have given
respectively to the non-proliferation and disarmament goals of the
NPT (at least for those 190 states party to this treaty). Roughly
speaking, those states that wish to limit an FM(C)T to a cessation
of future production consider the non-proliferation objectives as
primary, whereas those that wish to include past production
(stocks) put a higher priority on making progress on the
disarmament aims. Related to this is also the issue of equitable
commitments, as the five NPT-recognized nuclear weapons states have
all ceased production of fissile material for nuclear weapons and
all but China have officially affirmed a moratorium on such
production. A ban on future production, while codifying and making
legally binding these moratoria, would not actually move beyond the
status quo for these states while foreclosing growth possibilities
for states such as India and Pakistan, which are still perceived to
be developing their nuclear weapons arsenals.
In addition to these broad considerations related to the NPT
purposes, some states are primarily motivated by regional security
factors, particularly when related to strategic competition with
regional rivals. The situation of India and Pakistan, two non-NPT
nuclear weapon possessors with a history of bilateral conflict, is
a case in point. Pakistan perceives its larger neighbour as having
a strategic advantage in terms of existing nuclear weapons and
related fissile material stocks and is not prepared to allow its
own inferior status to be permanently embedded through a treaty
that only bans future fissile material production. Moreover, the
existing strategic imbalance has recently been exacerbated by the
opening up of new external supply opportunities available only to
India, as a consequence of its bilateral nuclear cooperation deal
with the United States. In connection with this deal, the Nuclear
Suppliers Group also lifted its long-standing constraints on
nuclear trade with India.
Pakistan's perceptions of the strategic implications of this
development have been recorded in several recent CD statements.
Most recently, Ambassador Zamir Akram told the Conference on
Disarmament: "As regards the Fissile Material Treaty (FMT), the CD
Membership is fully cognizant that existing and future stocks has
assumed greater significance for Pakistan in the light of the
nuclear cooperation arrangements in our neighbourhood. These upset
the strategic balance in the region. Unless the equilibrium is
re-established, the fashioning of an appropriate FMT appears to be
a difficult challenge. A treaty which would merely legalize
national moratoria of nuclear-weapons-states and freeze the
asymmetries will undermine the international community's vision of
a nuclear weapons free world as well as Pakistan's national
security."[3]
In contrast, India insists that an FM(C)T "would focus on the
future production of fissile material for nuclear weapons or other
nuclear explosive devices" and its CD ambassador warns that "We
will not accept obligations not in keeping with or prejudicial to
our national security interests or which hinder our strategic
programme."[4]
With regard to the views of other states (to the extent that
they are known), it would appear that only a small minority (in
effect, the five NPT-nuclear weapons states plus India) wish to
limit the FM(C)T to future production while the majority favour
addressing stocks in some fashion. In a working paper submitted to
the 2005 NPT Review Conference, the 110-member Group of Non-aligned
states party to the Treaty stated that: "The group is also
concerned by attempts to limit the scope of the negotiations on a
fissile material treaty, as contained in the statement of the
Special Coordinator in 1995 and the mandate contained therein."[5]
Many states may simply not want to pronounce on the issue
pending commencement of work on a treaty. Most would prefer to get
FM(C)T negotiations underway without preconditions and let the
actual process of talks determine what scope would eventually be
acceptable as a basis for an agreed treaty. That said, a few CD
member states (notably Australia, Canada, Germany, Japan and South
Africa) have submitted working papers in the past decade indicating
their national views on how the scope of an eventual FM(C)T should
be delineated. These have tended to avoid an "either/or" approach
to the scope issue and have explored ways in which stocks could be
subject to some form of transparency or control arrangements.
One of the most recent and innovative proposals for making
progress on an FM(C)T was set out in a working paper submitted by
Germany to the 2008 NPT Preparatory Commission (PrepCom) held in
Geneva.[6] The German paper
envisaged a "phased" approach consisting of three parts: i) an
initial political declaration committing to a fissile material
cut-off, necessary control measures on weapon-usable materials and
the entering into negotiations on an FM(C)T; ii) a framework treaty
enshrining the basic norms and including provisions for
transparency measures and possibly other voluntary steps; and iii)
additional implementation protocols covering verification and
broadened scope, including specific issues such as the use of
fissile material for naval nuclear propulsion. The German paper
also called for the establishment within the CD of a Group of
Scientific Experts to examine technical aspects of an FM(C)T akin
to what was done prior to (and during the course of) negotiations
on a CTBT. Finally, the German proposal embraced Robert Einhorn's
concept of a Fissile Material Control Initiative (FMCI)
"conceived as a voluntary, multilateral arrangement open to any
country possessing fissile material." Germany viewed such an FMCI
as a possible element of its proposed initial political declaration
stage. Germany re-affirmed its preference for the FM(C)T
negotiations to take place in the CD, but used a formula implying
that alternatives could also be considered: "Political will
permitting, such negotiations should best be conducted within the
CD."
The thoughtfulness, creativity and practical guidance of the
German Working Paper contrasts with the working paper submitted by
the EU at the May 2009 NPT PrepCom. Containing the revelation that
"The negotiations on an FMCT are overdue", this rather pedestrian
EU paper sets out in somewhat convoluted fashion the EU policy
line: "The EU attaches a clear priority to the negotiation, without
preconditions, in the Conference on Disarmament, on an FMCT,
including verification provisions as a means to strengthen
disarmament and non-proliferation."[7] The EU paper at least attempted to set out some
parameters for the treaty negotiations, which is more than the NAM
working paper for the 2009 NPT PrepCom, which just contained the
general exhortation to conclude a treaty: "banning the production
of fissile material for nuclear weapons and other explosive
devices, taking into account both nuclear disarmament and
non-proliferation objectives."[8] . Such vague declaratory stances on the part of
groupings of states however, convey more the air of an article of
faith, affirmed for purposes of internal cohesion, than any
meaningful policy guidance as to how to bring about this desired
objective. It is clear that it will require leadership by
individual concerned states to initiate any real action on the
matter.
Now that the Obama Administration has restored the long-standing
US position in favour of a verifiable treaty, the United States
should be expected to provide leadership within multilateral arms
control fora and set out a strategy for starting work on an FM(C)T.
Such US engagement is necessary to overcome five years of drift
after the Bush Administration broke with the prevailing consensus
around the Shannon Mandate and claimed that an FMCT could not be
verified.
At present, US representatives have not gone beyond reaffirming
that an FMCT is a top priority for the United States and expressing
the hope "that its renewed flexibility on this issue will enable
negotiations to start soon in Geneva".[9] While this represents an understandable "holding
line" as the new administration consolidates its policy capacity on
non-proliferation and disarmament issues, it would be useful for
the FM(C)T endeavour if Washington could help "prime the pump" for
diplomatic action on this long-standing goal.
Recently President Obama spoke of his intention to host a
conference on nuclear security in 2010 in advance of the NPT Review
Conference in May. Such a conference conceivably could be used as a
springboard for initiating some form of work on an FM(C)T, even if
just to seek some common understandings amongst key participating
states as to the parameters of an eventual treaty negotiation.
Other leading nuclear states with fissile material holdings
could also focus on the FM(C)T project and impart some momentum and
direction. British Prime Minister Gordon Brown has put forward a
"Road to 2010"[10] plan with
proposals on a variety of nuclear non-proliferation and disarmament
issues, including fissile material security. The UK has also
announced that it will hold a meeting in September of experts from
the five NPT-recognized nuclear-weapon states to address the
technical issues associated with nuclear disarmament and
verification. While the initial indications are that the British
proposals will focus on the protection of existing fissile material
holdings, there is certainly room to incorporate a diplomatic
component that would look at how best to jump-start FM(C)T
negotiations.
Non-governmental organizations (NGOs) also have a role to play
in re-energizing negotiations on an FM(C)T. The International Panel
on Fissile Materials (IPFM - an independent group of arms-control
and non-proliferation experts from sixteen countries) has for
several years been making a great contribution to the professional
examination of key aspects of the FM(C)T project. The IPFM's 2008
report on the Scope and Verification of an FM(C)T[11] and its draft treaty text
released in March 2009[12]
provided high quality, scientifically grounded analysis of the
challenges posed by an FM(C)T and some practical suggestions as to
how these challenges might best be met.
To some extent the work of the IPFM is making up for the absence
in the CD of a Technical Experts Group able to address the
substance of an FM(C)T. This form of expert contribution is all the
more important at a time when the professional capacities of many
of the national delegations to the CD have been reduced in the
decade-plus period the Conference has not been engaged in actual
negotiations. Many of the diplomatic representatives filling the
seats at the CD lack substantive knowledge of the items on the CD's
agenda and prior experience with arms control negotiations. Alas,
part of the penchant for procedure in the CD is that its
representatives are no longer comfortable with addressing the
substance of its agenda. Whatever forum is eventually activated to
initiate FM(C)T negotiations, it will be necessary to ensure that
solid subject matter expertise is available to the negotiators. The
freely available products of the IPFM take on a new significance in
this light.
Given the diversion risk represented by existing stockpiles
which could jeopardize both nuclear non-proliferation and nuclear
disarmament purposes, the general conclusion is that stocks need to
be addressed in some manner. The solution to the scope problem
advocated by the IPFM is to have states separate out their military
and civilian fissile material stocks and put the excess not
required for nuclear weapons or other military purposes under
international safeguards. This approach tracks well with the views
set out in most of the working papers on an FM(C)T submitted in the
CD context.
The Japanese working paper advocates banning diversion of stocks
for non-proscribed military uses for nuclear weapons purposes as
well as any reversion back to nuclear weapon purposes of stocks
declared as excess. It also favours "examining the addition of
transparency enhancing measures such as voluntary declarations
based on state accounting and control, as well as the realization
of physical protection obligations".[13] A Canadian working paper suggests that "An
objective for NWS [NPT-recognized nuclear weapons states] and
non-NPT states should be to undertake a process that would
complement a ban on production by declaring the broadest possible
fissile material inventories, accepting the application of
verification provisions to the highest degree possible, ensuring
that fissile material deemed to be in excess of military needs is
made subject to international control, and working to ensure that
overall fissile material stockpiles are reduced to the lowest
possible levels".[14] The
bottom line seems to be that stocks of fissile material are simply
too important for the ultimate integrity of an FM(C)T to be left
out of the equation completely. At the same time, there appears to
be considerable room for customizing arrangements regarding stocks
that would complement the core prohibition on further production of
fissile material that would be at the heart of any FM(C)T.
Verification
If scope remains a challenging issue, but one amenable to
creative solutions, verification should arguably be an easier
matter to address as part of an FM(C)T. At least there is now
renewed consensus in favour of the Shannon Mandate's exhortation
for "an internationally and effectively verifiable treaty". As
noted earlier, this consensus was for a few years challenged by the
Bush Administration's conclusion that verification of an FM(C)T was
impossible and should hence be dispensed with, but the Obama
Administration's decision to restore the previous US position in
favour of a verifiable treaty has now reaffirmed the view that
verification of an FM(C)T is both desirable and do-able.
However, how this verification should be constructed and who
should be responsible for implementing it, are two questions that
remain to be debated in the course of negotiations. What
constitutes "effective verification" is like "beauty" in the eye of
the beholder, and subject to a myriad of interpretations. A key
factor in determining the appropriate verification regime is
deciding on what exactly is to be verified. Most importantly, the
choices on scope of an FM(C)T, particularly with regard to the
coverage of past as well as future production, or civilian as well
as military production, will have an impact on verification
requirements. Similarly the inclusion of non-proscribed military
uses of fissile material (such as for naval nuclear propulsion)
would complicate the verification equation far more than if a
decision were taken to prohibit all forms of military fissile
material production.
In this context, negotiations on the verification regime may
have to wait for clarification of the scope or indeed the
definitions of key terms like "fissile material". As one thoughtful
observer of the FM(C)T enterprise has noted: "Without at least a
prior general understanding of the scope of an FMCT and without the
definitions put into tune with existing or at least feasible,
practical and affordable verification techniques, such an approach
to FMCT negotiations would lead to a dead-end."[15]
In addition to the triangular and interconnected relationship
between definitions, scope and verification, there is also the
practical consideration of costs. The criterion of "affordability"
may prove as much a driver as the criterion of "effectiveness" in
determining the verification provisions of an FM(C)T. This reality
was already flagged by the Head of Verification and Security Policy
of the International Atomic Energy Agency (IAEA) in a presentation
to the CD in 2006, which noted: "Notwithstanding the fact that
technically a comprehensive system of verification under an FMCT
would appear to be the best alternative, States might opt for a
less resource-intensive alternative, with a trade-off regarding the
non-proliferation and disarmament benefits of a comprehensive
approach against the reduced costs of more focused
nuclear-facility-targeted approaches."[16]
Cost factors could also dictate the choice of organization for
carrying out agreed verification under an FM(C)T. The IAEA is
frequently seen as the natural candidate for taking on this role,
especially as the existing verification requirements for
non-nuclear weapons states under the NPT and related IAEA
safeguards agreements are likely to suffice for this category of
states under an FM(C)T. Although such a new tasking for the Agency
would require a reinforcement of its safeguards operations with
attendant costs, these would seem to pale against the costs of
establishing a separate organization for conducting FM(C)T
verification. The IPFM reached a similar conclusion in proposing
that the IAEA take on responsibility for verification. The IPFM in
the introduction to its draft treaty, states that "The IAEA has
extensive experience in inspecting nuclear installations and
nuclear materials, including in the NPT nuclear-weapon states under
their voluntary safeguard agreements. The obligations of
nuclear-weapon states under the FM(C)T will overlap strongly with
the obligations of non-weapon states under the NPT and will become
more similar as nuclear disarmament proceeds."[17]
Clearly one attractive feature of an FM(C)T and its associated
verification arrangements is the promise of an integrated
safeguards regime that would cover all fissile material and reduce
the current discrepancy between the verification burden on the
nuclear and non-nuclear-weapon states. For proponents of
non-proliferation and disarmament alike, there is an allure in such
a comprehensive accord governing all fissile material, both as a
cost- effective approach to fissile material control and as a
necessary complement to eventual nuclear disarmament
arrangements.
Conclusion
This brief survey of some of the issues surrounding the scope
and verification of an FM(C)T suggests that these points, while
posing challenges, are not insurmountable obstacles to concluding
an effective treaty. These questions are all amenable to answers
once negotiations are underway. The principal diplomatic challenge
facing an FM(C)T remains how to initiate negotiations and bring
them to a timely conclusion. As suggested earlier, diplomatic
options are not limited to a real breakthrough at the CD, but could
embrace other fora or formulas, from initiating negotiations under
NPT or IAEA auspices, to commencing dedicated work amongst a
sub-set of states possessing fissile material. The chief gap that
remains to be bridged is that of leadership on the part of
influential states in the international nuclear field. What the
FM(C)T project urgently needs, after years of neglect, is a
champion prepared to launch this undertaking and to challenge its
nuclear peers to either get on board or get out of the way as
progress is made.
Notes
[1] I have adopted the acronym FM(C)T -
Fissile Material (Cut-off) Treaty used by the International Panel
on Fissile Materials, which in its very useful draft treaty text of
16 March 2009 explains that this name makes explicit the unresolved
issue of the treaty's scope. See www.fissilematerials.org.
[2]
CD/1299 24 March 1995 (CD and NPT working papers and statements
accessed via www.reachingcriticalwill.org).
[3]
Statement to the CD by Ambassador Zamir Akram of Pakistan, 4 July,
2009.
[4]
Statement to the CD by Ambassador Hamid Ali Rao of India, 29 May,
2009.
[5]
Contained in CD/1752, 27 June, 2005.
[6]
"Creating a new Momentum for a Fissile Material Cut-Off Treaty"
Working paper submitted by Germany. NPT/CONF.2010/PC.II/WP.21, 30
April, 2008.
[7]
Working paper submitted by the European Union,
NPT/CONF.2010/PC.III/WP.35, 13 May, 2009.
[8]
Working paper submitted by the Group of Non-aligned Member States,
NPT/CONF.2010/PCIII/WP.30, 6 May, 2009.
[9]
Statement to NPT Prep Com by Rose Goettemoeller, Assistant
Secretary of State for Verification, Compliance and Implementation;
New York, 5 May, 2009.
[10]
UK Cabinet Office, 'Road to 2010: Addressing the nuclear questions
in the twenty first century', July 2009, available at www.acronym.org.uk/docs/0907/roadto2010.pdf.
[11]
International Panel on Fissile Materials, Global Fissile Material
Report 2008: Scope and Verification of a Fissile Material (Cutoff)
Treaty, available at: www.fissilematerials.org/ipfm/site_down/gfmr08.pdf.
[12]
International Panel on Fissile Materials, A Fissile Material
(Cut-Off) Treaty: A Treaty Banning the Production of Fissile
Materials for Nuclear Weapons or Other Nuclear Explosive Devices;
with article-by-article explanation, 16 March 2009, available at:
www.fissilematerials.org/ipfm/site_down/fmct-ipfm_mar2009draft.pdf.
[13]
Working paper submitted by Japan CD/1774, 16 May, 2006.
[14]
Working paper submitted by Canada, CD/1819, 21 March,
2007.
[15]
Ambassador Bernard Brasack of Germany, Statement to the CD, 2 July,
2009.
[16]
Statement to the CD by Dr. Tariq Rauf of the IAEA, CD/PV.1037, 24
August, 2006.
[17]
"A Fissile Material (Cut-Off) Treaty", International Panel on
Fissile Materials, 16 March, 2009.
Paul Meyer is a career Foreign Service Officer whose last
diplomatic assignment (2003-2007) was as Canada's Ambassador and
Permanent Representative to the Office of the United Nations and
the Conference on Disarmament in Geneva. He is currently based in
Ottawa, Canada. The views expressed in this article are those of
the author and do not necessarily reflect the views of the Canadian
Department of Foreign Affairs and International Trade.
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