Reviewing the Nuclear Nonproliferation Treaty

This book is available online at the website of the Nonproliferation Policy Education Center.

After three weeks of expanded debate and negotiation, the Nuclear Nonproliferation Treaty (NPT) Review Conference at the United Nations in New York concluded on May 27 with a final declaration that all 189 NPT members sign off on. Controversy over the declaration's demand that Israel rid itself of its nuclear weapons holdings ensued almost immediately. President Obama and officials at the State Department regretted this demand but noted that the declaration would "only strengthen the NPT as a critical part of our efforts to ensure that all nations meet their NPT obligations or face consequences." Get a run down on the key results of the NPT review conference along with an assessment of how helpful or harmful the new declaration might be to the treaty's operational future.

Introduction

The NPT's Untapped Potential to Prevent Proliferation
By Henry Sokolski

As it is currently interpreted, it is difficult to see why the Nuclear Nonproliferation Treaty (NPT) warrants much support as a nonproliferation convention. Most foreign ministries, including that of Iran and the U.S., insist that Article IV of the NPT recognizes all states' "inalienable right" to develop "peaceful nuclear energy." This includes money-losing activities, such as nuclear fuel making, which can bring countries to the very brink of acquiring nuclear weapons. If the NPT is intended to ensure that states share the peaceful "benefits" of nuclear energy and prevent the spread of nuclear bomb making technologies, it is difficult to see how it can accomplish these goals if this interpretation of the treaty is correct.

Some, however, contend that the NPT' clearly prevents proliferation by requiring international nuclear safeguards be imposed to block military diversions of fissile material. Unfortunately, these nuclear inspection procedures, which are required of all non-weapons state members of the NPT under Article III, are rickety at best. In fact, International Atomic Energy Agency (IAEA) nuclear safeguards frequently seem more cosmetic than real. Not only has the IAEA failed to find covert reactors and fuel making plants, which are critical to bomb making, the agency still cannot assure the continuity of inspections over spent and fresh reactor fuel that could be processed into bomb usable materials at roughly two-thirds of the sites the IAEA currently inspects. What's easily as worrisome is that even at declared nuclear fuel making sites the IAEA routinely loses account of many bombs' worth of production each year.

Finally, the way the NPT is currently read, the treaty hardly admits of modification and is all too easy for violating states to withdraw from. Under Article X, treaty members are free to leave the NPT with no more than three months notice by filing a statement of the "extraordinary events [relating to the subject matter of the treaty] it regards as having jeopardized its supreme interests." As North Korea demonstrated with its withdrawal from the NPT, these requirements are hardly onerous.

As for amending the treaty, it's nearly impossible: Not only must a majority of NPT members ratify any proposed amendments, every member of the IAEA governing board and every NPT nuclear weapons state member must ratify it as well. After this, any state that chooses not to ratify is free under article IX of the NPT to ignore the amendment.

For all of these reasons, the NPT is not just seen by its critics to be weak and difficult to improve, but as a legal instrument that actually enables nations to acquire nuclear weapons technology. Former president George W. Bush highlighted this in a February 2004 nuclear nonproliferation speech. Here, he argued that the NPT had created a "loophole" in promoting all aspects of civilian nuclear technology including nuclear fuel making. This allowed proliferating states to "cynically manipulate" the treaty to develop and acquire nearly all the technology and materials they needed to make nuclear weapons. President Bush attempted to shore up the NPT by calling on the world's nonweapons states that have not yet developed nuclear fuel making to foreswear such activities and to allow more intrusive civilian nuclear inspections in exchange for their assured access to nuclear fuel from those state now producing enriched uranium.

His appeal, however, was unsuccessful: Australia, Canada, South Africa, Jordan, Iran and Argentina, among other states, were unwilling to give up their "right" to make nuclear fuel. Then, in September of 2007, Israel bombed a covert Syrian nuclear reactor that was under construction. This act of violence, which followed months of intelligence consultations with the US, was a clear vote of no confidence in the IAEA nuclear inspections system.

Compounding these setbacks, the US government in 2005 negotiated a civilian nuclear cooperation agreement with India -- a nonweapons state under the NPT that had already violated its pledges not to misuse previous U.S. and Canadian civilian nuclear energy aid and that had tested nuclear weapons in 1974 and 1998. Implementing this agreement prompted Pakistan, Israel, and Iran to call for similar treatment. Finally, as of early 2010, Washington and its allies had still not seriously penalized, much less reversed, the nuclear misbehavior of Iran and North Korea -- two states that the IAEA found to be in clear breach of their NPT safeguards obligations.

Each of these developments has undermined the NPT's nonproliferation credibility and led to a chorus of pleas from policy analysts for NPT members to take steps to "strengthen" the treaty. Some of these measures would require nonweapons states to adopt more intrusive nuclear inspection procedures. Others would increase IAEA safeguards funding and establish automatic penalties for safeguard agreement violations.

Most, however, have to do with implementation of the NPT's famous disarmament Article VI. Under this article,

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control"

As to what Article VI might entail, the NPT's preamble is quite explicit: NPT member states should support a global ban on nuclear testing, cease producing nuclear weapons and their means of delivery, and pursue nuclear and general disarmament.

Nonweapons states point out that none of these objectives have yet been met. For all of the reductions that have been made in U.S., allied, and Russian nuclear weapons deployments (now down from over 75,000 nuclear weapons to fewer than 10,000), both the US and Russia, they note, still retain thousands of nuclear weapons in storage. Also, the five original NPT nuclear weapons states have yet to bring the Comprehensive Nuclear Test Ban Treaty (CTBT) into force and have yet to reach any agreement to end nuclear weapons production.

Unfortunately, when one digs deeper though, this indictment of the NPT weapons states become more complicated. Most of the declared nuclear weapons states, it turns out, have not only reduced their weapons deployments, but imposed moratoriums on the further production of uranium or plutonium for weapons purposes and on the further testing of nuclear weapons. Also, the states most opposed to concluding formal international agreements on nuclear testing and production are not the NPT nuclear weapons states, but rather states outside of the NPT, such as India, North Korea and Pakistan, or states such as Egypt, which refuses to ratify the CTBT until Israel joins the NPT and eliminates its nuclear weapons assets.

Combine these complications with the ones already reviewed and the NPT Review Conference, which will convene all of NPT member states in May of 2010 to elicit their views on how to improve the treaty's implementation, seems destined for substantial discord. This is so although President Barack Obama succeeded in getting the United Nations Security Council to adopt an ambitious resolution last fall detailing a number of worthy NPT Review Conference goals.

How, then, will the NPT be viewed after the review conference is held? One strong possibility is that the NPT will become more and more of a diplomatic talking point - a nuclear version of the Biological Weapons Convention, a set of agreed international goals rather than an international understanding with concrete, operational consequences. What this risks is letting the NPT become dead letter like the Kellogg-Briand Pact, which vainly tried in 1929 to ban war - i.e., a solemn, albeit ineffective legal attempt to prohibit the worst of what is certain to occur.

Indeed, this seems likely, but only so long as the NPT is viewed as it currently is - as a set of nuclear bargains at war with one another. True, most nuclear nonproliferation experts insist that any reading of the treaty that might alter or curtail NPT members' nuclear rights is simply a nonstarter. Such a view, however, is unnecessarily fatalistic about how absolute these rights might be and how inviolate the NPT itself is. In fact, the NPT is open to interpretation and has already been significantly altered as a result.

Here, the clearest demonstration of this point is the way the NPT's Article V promise to share the possible benefits of peaceful nuclear explosives has played itself out. When this article was first proposed in the 1960s, most nations, including the U.S. and Russia, believed that nuclear explosives could be employed as "ploughshares" to create canals and to complete other civil engineering tasks, including mining and excavation. To assure nonweapons states the possible benefits of such nuclear applications, the NPT allowed nuclear weapons states to share such benefits by supplying nuclear explosive services to nonweapons states on a turn-key basis.

To date, no state, though, has applied for such assistance nor has any state offered it for two unanticipated reasons. First, the "possible benefits of peaceful nuclear explosives" turned out to be negative: Given the costs of cleaning up the radioactive debris that the use of peaceful nuclear explosives would produce, it became clear that it would be far cheaper to use conventional explosives for civil engineering applications. In short, there were no "benefits" to share.

Second and closely related, the few states that insisted on conducting their own "peaceful nuclear test explosions" - India and Russia - were strongly suspected of using Article V as a cover for nuclear weapons testing. Certainly, the U.S. and most nuclear supplying states sanctioned India for its 1974 test of a "peaceful nuclear device" by depriving it access to most controlled civilian nuclear supplies and, in time, any nuclear explosion, "peaceful" or not, was seen as a violation of a norm against any form of nuclear testing.

This example of Article V's reinterpretation, although not well known, speaks directly to several of the NPT's most pressing current difficulties. As already noted, the prevailing view of the "inalienable right" to "peaceful nuclear energy" recognized by the NPT is that this right automatically allows states to participate in any nuclear activity, no matter how uneconomical or dangerous, so long as it has some conceivable civilian application and the materials or activities in questions are occasionally inspected by IAEA inspectors or their equivalent. This is Japan's view, and that of the Netherlands, Germany, South Africa, Brazil, Iran, and the US.

Yet, how Article V is now read suggests that there is another more sensible way to interpret Article IV. This interpretation recognizes the explicit qualifications made in the NPT on exercising the inalienable right to peaceful nuclear energy. This right, the NPT notes in Article IV, must be implemented "in conformity" with the treaty's clear strictures in Articles I and II. These two articles, in turn, prohibit nuclear weapons states "in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices," and ban nonweapons states from seeking or receiving "any assistance in the manufacture of nuclear weapons."

Properly understood, being "in conformity" with Articles I and II implies also being in conformity with Article III, the NPT requirement that all nonweapons states accept the imposition of international nuclear safeguards on all of their civilian nuclear activities and materials to prevent their military diversion to make bombs. Certainly a nonweapons state refusing such safeguards would be an implicit violation of Article II. Thus, the final statement of the 2000 NPT Review Conference refers to the need for nonweapons state members to exercise their Article IV activities in conformity with Articles I, II and III.

Technically, this condition is difficult to meet. Not all nuclear activities and materials can in fact be safeguarded to prevent their diversion to make bombs. Some activities, e.g., nuclear fuel making and operating large nuclear programs in hostile, noncooperative states (e.g., North Korea or Iran), cannot be inspected in a fashion that can reliably assure detection of a possible military diversion early enough to provide sufficient time to intervene to prevent the production of a bomb. Similarly, some nuclear materials are so weapons usable (e.g., highly enriched uranium, separated plutonium or plutonium based fuels) that reliable and timely detection of their diversion to make bombs is simply not possible.

This, then, raises the question: If a nuclear activity or material is so close to bomb making that it cannot be safeguarded against military diversion, is it protected as being "peaceful" under the NPT? In the 1970s, it was hoped that nuclear fuel making in Japan, Brazil, South Africa, the Netherlands, and Germany could be safeguarded. Yet, recent discoveries of nuclear weapons usable materials unaccounted for (MUF) in Japan and the UK raise serious questions as to whether or not these assumptions were ever sound. We also know from experience in Iraq, Libya, Iran, Syria, and North Korea that the IAEA inspections system cannot be relied upon to find covert nuclear weapon related activities in states that refuse to cooperate fully with IAEA inspectors.

How, then, should one proceed? Should one continue to allow new states to make nuclear fuel even though we now know that these activities cannot be effectively safeguarded against military diversion? What of states that we have reason to believe may cheat, e.g., Egypt, Algeria, Saudi Arabia - states that have all hidden their acquisition of nuclear technologies or nuclear capable delivery systems? Should we nonetheless allow them to develop large nuclear energy programs in hopes that IAEA safeguards somehow will work?

Many less developed states would answer that the NPT's preamble explicitly stipulates that all of peaceful nuclear energy's benefits, including "any technological by products which may be derived from the development of nuclear explosives" should be "available" for civilian purposes to all states. This would suggest that the NPT recognizes and protects a per se right of all states to get to the very brink of making bombs.

Yet, if The NPT is dedicated to sharing the "benefits" of peaceful nuclear energy, these benefits presumably must be measurably "beneficial" and be distant enough from bomb making or the risk of being easily diverted to that purpose so that inspections could reliably detect their military conversion in a timely fashion (i.e., well before any bombs might be made). At the very least, what is protected ought not to be both dangerous and unprofitable. That, after all, is why the NPT bans the transfer of civilian nuclear explosives, only allowed the sharing of civilian nuclear explosive services on a turn key basis, and why ultimately this offer was never acted upon.

By this set of standards, what currently is defended as being "peaceful nuclear energy" and protected by the NPT, can, and perhaps should, be questioned. Is nuclear fuel making and large nuclear programs economically competitive, i.e., "beneficial" in places like the Middle East when compared to making power with readily available natural gas or buying nuclear fuel from other producers? How economically competitive are such programs against safer alternatives in any region? Can nuclear fuel making be safeguarded anywhere reliably to detect military diversions in a timely fashion? Aren't such activities dangerous in any nonweapons state? Should these activities be allowed to be expanded in nonweapons states and to new locales?

This set of questions then brings us back to the current reinterpretation of Article V. If the benefits of a nuclear activity are negative as compared to nonnuclear alternatives and the nuclear activity or material is dangerously close to producing a nuclear weapon, is there any reason to believe that it is a peaceful benefit protected by the NPT? These questions demand for answers. More important, the answers ought to inform how the NPT is read and what states view as NPT protected activities.

The same is true regarding the NPT's withdrawal clause under Article X. The problem with Article X is that it has been read to give states like North Korea the freedom to violate the treaty and then withdraw with little or no consequence. Yet, the Vienna Convention on Treaties points out that states that violate an agreement should and can be held accountable for their transgressions whether they choose to withdraw from the agreement or not. France and the U.S. now insist that this is the appropriate way to read the NPT.

Reading Article X this way would mean that violating states inclined to leave the NPT, such as North Korea and Iran, would have far greater difficulty doing so with impunity. It's unclear if this view, which the United Nations Security Council supported last September with the adoption of UNSC Resolution 1887, will prevail. Yet, creating as many useful interpretative challenges of this sort will be critical if the NPT is to remain effective against further proliferation.

Table of Contents


Foreword

Part I: Introduction and Overview

1. The NPT's Untapped Potential to Prevent Nuclear Proliferation
Henry Sokolski

Part II: The Nuclear Nonproliferation Treaty and Its History

2. The Treaty on the Nonproliferation of Nuclear Weapons (Text)

3. What Does the History of the NPT Tell Us about Its Future?
Henry Sokolski

Part III: The NPT and Nuclear Weapons-Articles I, II, and VI

4. How Will the Nuclear Weapons Story End?
Victor Gilinsky

5. Moving Toward Zero and Armageddon?
Henry Sokolski

Part IV: The NPT and Nuclear Safeguards-Article III

6. Peaceful Nuclear Energy and the Nuclear Nonproliferation Treaty
Eldon V. C. Greenberg

7. Spreading the Bomb without Quite Breaking the Rules
Albert Wohlstetter

8. Falling Behind: International Scrutiny of the Peaceful Atom
Henry Sokolski

Part V: The Rights and Benefits of Peaceful Nuclear Energy-Articles IV and V

9. It's Called Nonproliferation
Henry Sokolski and George Perkovich

10. The Three Qualifications of Article IV's "Inalienable Right"
Robert Zarate

11. Nuclear Technology Rights and Wrongs: The NPT, Article IV, and Nonproliferation
Christopher Ford

12. Economics of New Nuclear Power and Proliferation Risks in a Carbon Constrained World
Jim Harding

Part VI: Withdrawing From and Enforcing the NPT-Article X

13. Locking Down the NPT
Henry Sokolski and Victor Gilinsky

14. Enforcing the NPT and IAEA Compliance
Pierre Goldschmidt