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By Sean Howard "All States have an obligation to ensure that their nuclear trade does not contribute, wittingly or unwittingly, to nuclear weapons proliferation by either States or sub-State groups. Meeting this obligation is assisted by a common understanding of what items are sensitive in the nuclear proliferation process and has resulted in development of internationally agreed standards for nuclear exports. ... It is essential that export control regimes are transparent in their operation and do not impede legitimate trade and technology transfer." The Canberra Commission (1) "[A]n undeniable flaw in the current regime is that the charter of the International Atomic Energy Agency requires that it both promote and safeguard the peaceful uses of nuclear energy. The tension in this relationship is evident in the battle over the IAEA [International Atomic Energy Agency] budget, in which some member States insist that any increase in the safeguards budget should be matched by a comparable increase in the technical assistance budget." Steve Fetter, Verifying Nuclear Disarmament (2)
Introduction
Article IV of the Non-Proliferation Treaty (NPT) states that nothing in the Treaty "shall be interpreted as affecting the inalienable right of all the Parties" to "develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II." However, the history of the NPT has demonstrated vividly how open to interpretation the key concepts of the Article are. How can you be sure purposes are "peaceful"? What constitutes "discrimination" and "conformity"? How "common" is the understanding on the issue referred to above by the Canberra Commission? As many non-aligned States point out, nuclear export control regimes, dominated by powerful, wealthy, developed States - the Zangger Committee and the Nuclear Suppliers Group (NSG - also known as the London Club) - have, since the early 1970s, had it in their power to arrive at their own interpretative conclusions and act upon them.
Export control regimes are not explicitly mandated by the Treaty. While most States accept that such regimes are a natural corollary to the Treaty, and in particular the safeguards regime established under Article III, there is less agreement on whether they should be brought into the Treaty's purview and made more transparent and accountable. Although advocates of the existing system suggest that this would be a recipe for politicising the process and miring it in disputes likely to - and maybe designed to - greatly reduce its effectiveness, constructive critics argue that it is hard to deny that the process as it stands is highly political, and that greater trust could be established in it by increasing the transparency of its operation, even outside of a formal incorporation into NPT mechanisms.
Even deeper questions, however, about the relevance and cohesiveness of the Treaty as a whole underlie these arguments about export control regimes: should the Treaty's adamant advocacy of nuclear power - proclaimed, in the late 1960s, at perhaps the high-water mark of enthusiasm and optimism about nuclear power's potential to solve global energy and pollution problems and thus help rectify developmental inequities - remain set in stone, given the difficult, and sometimes disastrous, development of nuclear energy in the quarter-century since? Perhaps most fundamentally, does Article IV have the perverse potential to thwart the most ambitious objective of the Treaty? If radical nuclear disarmament becomes a reality, and the prospect of a nuclear-weapon-free world seems potentially within grasp, might not the existence of a widespread civil nuclear sector act as a nuclear-weapon-world in waiting, a threshold-nuclear-weapons world? This touches on the "flaw" and "tension" in the NPT identified by Steve Fetter above. Safeguarding existing nuclear facilities while promoting the construction and operation of new facilities is at the very least an awkward, and resource- and time-consuming, balancing act for the IAEA. Promoting the spread of nuclear power while championing the cause of nuclear non-proliferation perhaps represents an equally problematic and draining agenda for the regime as a whole.
Such claims and concerns are, of course, widely dismissed and refuted: on the grounds that nuclear power is today so widespread (by the end of 1996, nearly 450 nuclear reactors in over 30 States accounted for a fifth of global electricity output (3)) that it is impractical to seek to reverse the process; on the grounds that safeguards can be strengthened, and are being strengthened, to avoid any abuse; and on the grounds that such a process is beneficial economically (for countries not possessing ready alternatives) and environmentally (especially given the calamitous impact on the global climate of fossil-fuel emissions).
How does the debate between NPT States Parties on these issues stand, and how is it likely to develop?
The Debate at the 1995 Review and Extension Conference
There was considerable concern before the 1995 Review and Extension Conference that the issue of export controls could prove one of the most divisive on the agenda. In the PrepComs leading up to the Conference, Iran had emerged as the most outspoken critic of the existing arrangements. In the final PrepCom (New York, 23-27 January 1995), Iran urged an entirely new, inclusive approach involving all NPT States, replacing "private, secretive and nonrepresentative groupings of limited membership." (4) At the Conference, Iran repeated its criticism, contrasting support by unnamed nuclear-weapon States for the alleged nuclear-weapons programme of a non-NPT State (Israel) with the extreme difficulty many developing countries had experienced in "exercising their prerogatives as stipulated" in Article IV. Iran submitted an eight-point plan designed to affect a general overhaul of the Treaty: one point was the "phase out" of the Zangger Committee and London Club. However, Iran did not go on, as some had feared, to make NPT extension conditional on a commitment to reform in this area (5). Iran was far from alone in expressing frustration: Bangladesh, Botswana and Panama were among many NAM States stressing the importance of a new approach, if not an entirely new system (6). On the issue of nuclear energy, a few States expressed concern that the potential pitfalls of nuclear cooperation were not being adequately addressed. The Czech Republic, for example, said that under the spur of Article IV "such cooperation had developed too liberally," while the Netherlands urged recognition of the "limitations of the use of the atom". (7)
China has traditionally cultivated the image of a champion of the right of developing States to pursue peaceful nuclear programmes. At the Conference, China argued again that the best of both worlds - nuclear-weapon free and nuclear-power prevalent - was both desirable and possible: "the prevention of nuclear weapon proliferation should facilitate rather than impede the peaceful uses of nuclear energy." (8)
The 'Principles and Objectives' adopted by the Conference insisted that "[p]articular importance" be attached "to ensuring the exercise of the inalienable right" set out in Article IV. Furthermore, "[u]ndertakings to facilitate participation in the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy should be fully implemented", "preferential treatment should be given to the non-nuclear-weapon States party to the Treaty, taking the needs of developing countries particularly into account", and "[t]ransparency in nuclear-related export controls should be promoted within the framework of dialogue and cooperation among all interested States party to the Treaty." (9)
What was not spelled out was whether striving to abide by these principles and meet these objectives would require new mechanisms and institutions, reform of existing mechanisms and institutions, or merely a good-faith approach by those charged with operating the extant system.
The Debate at the 1997 PrepCom
A NAM Statement at the 1997 PrepCom called for an end to the "unilaterally enforced restrictive measures" of the Zangger Committee and London Club. In their place, the statement argued, developing States who were members of the NPT should be given "preferential treatment" regarding the "free and unimpeded and non-discriminatory transfer of nuclear technology." As at the 1995 Conference, there were two broad groupings within the NAM - a minority grouping hostile to the whole current system, with Iran as its most prominent member; and a majority grouping anxious to improve the political credibility and accountability of export control regimes. South Africa is a prominent member of this latter grouping. At the 1997 PrepCom, South Africa eloquently drew the link between increased transparency within the system and increased confidence in it. China argued that an important confidence-building measure would be to lift restrictions on "the transfer of technologies for peaceful uses of nuclear energy that are beyond safeguards required under the Treaty." The major statements made in support of the existing system -notably those of Australia, Canada, the European Union (EU) and the UK - contained no suggestions for refinements or improvements (10).
Much of the debate concerning nuclear energy was concerned with specific measures, such as the Convention on Nuclear Safety, designed to prevent accidents, improve the handling and transport of materials and radioactive waste, etc. Notwithstanding this recognition of the potential downside of nuclear energy, many States expressed great hopes for its increasing use. For example, speaking on behalf of the EU, the Netherlands - despite the cautionary note its national statement had struck in 1995 - noted with apparent satisfaction that the EU spent "comfortably" more - $48 million - than the IAEA in 1996 on promoting nuclear power. South Africa again spoke in tempered terms, pointing out that for many developing States pursuing a civil nuclear programme places great "infrastructural burdens...on recipients." One of the wariest notes was struck by Australia, which urged States Parties to recall the "potential for harm inherent in the peaceful uses of nuclear technology." (11)
Unilateral Pressure and Multilateral Regimes: The Case of the Bushehr Reactor
The period since the indefinite extension of the NPT in May 1995 has seen almost continual controversy over Iran's civil nuclear programme, which the US, Israel and others claim is part of a drive to acquire nuclear weapons. Iran provides an instructive case study in different approaches to responding to proliferation threats, and different approaches to arriving at threat assessments. In particular, it serves to illustrate tensions between unilateral and multilateral attitude and action.
The controversy centres around Russia's commitment to Iran to complete the construction of a 1,000 megawatt nuclear reactor in Bushehr. Under Article IV, Iran is quite entitled to seek the completion of the plant and Russia is quite entitled to assist in that completion. The type of reactor is comparable to that which the US wants to provide to North Korea, to replace heavy-water reactors capable of producing weapons-grade fissile materials. Once completed, Bushehr will be fully supervised by the IAEA. As IAEA spokesperson Hans-Friedrich Meyer told the Reuters news agency on 6 March 1998: "Iran is party to the [NPT]...and has a full-scope safeguards agreement and there is no sign whatsoever that the IAEA will not inspect the exclusively peaceful use of the Bushehr nuclear power plant when it comes into operation." (12)
Also on 6 March, Ukraine announced it was withdrawing from its part in the Bushehr project - the supply of turbines for the plant. Again, the sale of the turbines would not have contravened Article IV or the regulations of either the Zangger Committee or Nuclear Suppliers Group. Ukraine was clearly persuaded by the United States that the prospects of peaceful nuclear cooperation between Kiev and Washington would be drastically diminished if the turbines were exported. It was also made clear that general economic relations between the two States were at stake (13).
In a related development, it was revealed in mid-March that China had agreed not to sell Iran a large amount of anhydrous hydrogen fluoride (hydrofluoric acid). On 13 March, President Clinton and White House spokesperson Mike McCurry told reporters that US officials had made plain to China their view that the chemical could be useful in the development of a nuclear weapons programme, despite the fact that it is not included on the trigger lists of restricted goods, technologies and substances drawn up by either the Zangger Committee or London Club (14). However, China's decision was almost certainly not motivated by a change of heart; rather, it was made in the afterglow of the October 1997 Sino-US Summit in Washington at which President Clinton announced the activation of the 1985 Peaceful Nuclear Cooperation (PNC) agreement between the two nations. Clinton's decision was partly made possible by China's adoption, on 10 September 1997, of a new regulation on national export controls incorporating a 'control list' modelled on the list drawn up by the Zangger Committee. This is expected to be followed, before the end of July 1998, by a new regulation on exports of nuclear-related 'dual-use' items (15). These moves are being greeted in Washington as proof-positive of the wisdom of America's policy of principled engagement with Beijing. It will be interesting to see whether any change is noticeable in China's declaratory stance on the export controls issue at future PrepComs and Review Conferences.
The Bushehr case has been introduced not to suggest that the US is wrong to be concerned about the possible proliferation implications of the project, but to illustrate that the existing multilateral export control regime - sometimes criticised for being too powerful and arbitrary - can sometimes be far less effective and influential than determined unilateral action, albeit action taken by the most powerful State on earth. Current US strategy seems deeply wedded to the use of both the 'carrot' of peaceful nuclear cooperation - a policy obviously urged on the Administration by interested US companies - and the 'stick' of nuclear, and more general, economic and political, non-cooperation. Doubtless the US sees itself as exercising much-needed leadership through such a strategy, but the international objective of enhancing the effectiveness and fairness of export control regimes may be hard to square with American emphasis on the superiority and primacy of its own criteria - often far more stringent than anything agreed internationally - and methods (16).
There is a danger that the whole debate over export controls may be seen as increasingly irrelevant to actual political pressure and practice. This is an outcome which the US itself would wish to avoid. The US wants to see the strongest possible multilateral export control regime in place and operating effectively - that is evidently its gameplan, as it is the gameplan of the overwhelming majority of States. At issue here are the goalposts of cooperation and coercion: if these are moved too often or too far by the United States, in its impatience with existing arrangements, then broader US and international objectives could themselves run the risk of being moved out of range. This could further increase US dissatisfaction and make it more prone to unilateralism, thus making an already vicious circle even harder to break out of.
Directions for the Debate: Perspectives and Proposals
The Bushehr case is just one example of the profound difference in analysis and approach, rather than objectives, between the US and Russia on the issue of export controls and proliferation threats. US policy is openly confrontational, based on the identification and comprehensive ostracising of "rogue States" - States on whom, it considers, a cooperative approach would be wasted, if not counterproductive. Certainly for the foreseeable future, Russia is unlikely to become a convert to this approach: "Given her security concerns, and the potential for much-needed sales of defence-related G & T [goods and technology] for peaceful purposes, it is hardly surprising that Russia sees consultation rather than confrontation as the key in dealing even with what the US and others consider as 'rogue' States." (17)
Perhaps because of its more vulnerable geopolitical and economic situation, Russia also regards the practice of identifying "rogue States" as dangerously simplistic. In the present example of Bushehr, regardless of the political nature of the Iranian regime, in Russia's view it is not a non-proliferation policy, but a punitive non-cooperation policy to seek to prevent construction of a reactor that cannot produce weapons-grade fissile materials. As then-Atomic Energy Minister Viktor Mikhailov succinctly declared on 18 February 1998: "Iran's technological potential doesn't allow it to produce nuclear weapons." (18)
This is not to say that Russia is taking a lax attitude with regard to exports, or is unresponsive to US concerns. On 22 January, Russia announced revised national controls - 'Norms of Comprehensive Control' - covering a range of nuclear-, chemical-, biological-, and missile-related G & T. Rather, Russia sees itself as preferring to rely on detailed technical assessments rather than what it sees as the US penchant for sweeping political denunciations. After all, once a State is identified as a "rogue," what other than a worst-case scenario is politically advisable when assessing intentions and designs? It is worth mentioning that many analysts are also worried by the analytical oversimplicity - and potentially damaging political and military repercussions - of the "rogue" State approach (19).
Such a split between the two nuclear Superpowers is worrying, not least because it reflects more widespread international differences of perception and perspective. An obvious requirement for enhancing the political and practical effectiveness of export control regimes is to elaborate a 'mission statement' to which States with different perceptions and priorities can lend their support. This will necessarily involve a delicate blend of elements: rigorous and comprehensive criteria to avoid the calamity of proliferation being assisted by the export of uncontrolled items; open discussion and collective decision-making within the export control group regarding both the adoption and emendation of general rules, and individual cases and controversies; and some degree of transparency and openness of discussion between control group members and other States (and, preferably, NGOs). The very process of elaborating these difficult relationships and balances could act as an important confidence-building measure. The alternative of countenancing no changes to the existing system, while at the same time that system is seen as becoming of secondary importance to US unilateral policy, certainly will do nothing to diminish the potential divisiveness of the issue at future PrepComs and Review Conferences.
Conclusion
A new conceptual approach to the export control issue is required. Quoting US analyst and former arms control official, Michael Moodie, Russian analyst Rustam Safaraliev argues that policymakers on all sides of the argument are becoming increasingly unable to see the wood from the trees: "[A] fresh approach to proliferation is needed which takes into consideration technological developments against the background of the new post-Cold War agenda: the inherently discriminatory nature of traditional nonproliferation mechanisms and approaches is fundamentally incompatible with this trend of a globally spreading technological and industrial capability. Yet policymakers seem fixated on refining those mechanisms - such as export control regimes - rather than devising a whole new approach appropriate to the evolving situation."
According to Moodie, "what is needed is not a coordinated, but essentially unilateral, strategy of technology denial, but a multilateral strategy of technology management." (20)
A new approach to the nuclear energy question is equally worth exploring. With vast profits to be made by building reactors in China, Eastern Europe and elsewhere, the potentially diverse benefits of nuclear technology - for instance, in the areas of medicine and agriculture - can be easily obscured. Nevertheless, the key appeal of Article IV for some States is the promise it affords of a cheap and reliable energy supply: that is, it is the energy that matters, not necessarily the nuclear nature of its generation. With so many alternative means of generating power now being taken seriously, particularly with regard to renewable sources of energy - witness the growing governmental commitment to the research and development of solar energy in the United States (21) - there may be a strong case for at least beginning to explore the possibilities of converting Article IV into a mechanism for promoting energy-development in general. This prospect opens up another: that of moving to resolve the "tension" and "flaw" in the NPT regime, identified at the beginning of this paper, represented by the IAEA's dual role of promoting nuclear energy and non-proliferation.
Just as a 'new multilateralism' may be required to make the NPT's export control regime both fairer and more thorough, so a new, non-contradictory mandate for the IAEA may be needed to help synchronise the aspirations of the Treaty as a whole.
Notes and references
© 1998 The Acronym Institute.