CNS Occasional Papers: #3

Nonproliferation Regimes At Risk

THE FUTURE OF THE NON-PROLIFERATION TREATY

by Tariq Rauf

The Treaty on the Non-Proliferation of Nuclear Weapons, signed on July 1, 1968, remains the bedrock of the post-World War II global non-proliferation regime. With 187 states parties, this treaty is the most widely adhered to and the most successful multilateral arms control agreement in history. Today, only four states remain non-parties: Cuba, India, Israel, and Pakistan.

Negotiated during 1965-1968, the NPT reflected the political compromises of the day. At the time, the Treaty was directed principally at the advanced industrial states with nuclear research and production capabilities, such as Germany, Italy, Japan, the Netherlands, and Sweden, among others. Given the inherently discriminatory nature of the Treaty—i.e., that the nuclear weapon states (NWS) were not formally obligated to dismantle and destroy their weapon capabilities within a certain time period—the advanced industrial non-nuclear weapon states (NNWS) were not prepared to agree to a nonproliferation instrument of indefinite duration. Consequently, NPT Article X.2 provided for an initial period of 25 years, following which the states parties would convene a special conference to decide upon the future continuation in force of the Treaty.

Consequently, the NPT Review and Extension Conference (NPTREC) was convened at the United Nations in New York, from April 17-May 12, 1995. On May 11, 174 states parties gave the Treaty an indefinite duration by agreeing "without a vote" to a package of inter-linked decisions. Decision 1, on "Strengthening the Review Process for the Treaty," elaborated a framework for an enhanced and more substantive process to facilitate a full and balanced review of the implementation of the NPT and to forward recommendations on future steps to the quinquennial NPT Review Conferences. Decision 2, on "Principles and Objectives for Nuclear Non-Proliferation and Disarmament," set out substantive guidelines and indicative targets designed to promote greater accountability regarding full implementation of the Treaty in all its aspects.

In addition, a Resolution on the Middle East was also adopted that inter alia endorsed the ongoing peace process and called upon all states in the region, among other measures, to accede to the NPT and to establish an effectively verifiable zone free of weapons of mass destruction and their delivery systems. The Middle East Resolution, originally forwarded by Egypt on behalf of 14 Arab states adherents to the NPT, was eventually co-sponsored by the three depositaries (Russian Federation, United States, and United Kingdom), thus elevating its status and providing a mechanism enabling the Arab states to support indefinite extension.

CHALLENGES TO THE NPT

The NPT is presently under threat on several fronts:

  • Nuclear tests by India and Pakistan have challenged the international nonproliferation norm established by the Treaty, and the international community remains at a loss over how to categorize and deal with these two states: as non-nuclear weapon states not party to the NPT; nuclear weapon states not party to the Treaty; or threshold nuclear weapon states? Similar concerns also apply to Israel.

  • Compliance with the safeguards obligations and overall intent regarding the Treaty by two states—the DPRK and Iraq—remain in question.

  • Nuclear disarmament obligations of the nuclear weapon states remain unfulfilled, with bleak prospects for further reductions in the near term, despite nuclear arms reductions agreed bilaterally between the United States and the Russian Federation and unilateral cuts by these two NWS and by France and the United Kingdom.

  • Cooperation in the peaceful uses of nuclear energy continues to be constrained by some members of the Nuclear Suppliers Group who have concerns about the intent of certain states, notably efforts by the United States to deny Iran access to civilian nuclear technology.

  • Many non-nuclear weapon states believe that the strengthened review process for the Treaty is being undermined, principally by the nuclear weapon states.

SUBSTANTIVE ISSUES FOR THE NPT

Universality

How should the question of universality of the Treaty be addressed? Only four states remain outside the NPT, but the focus continues to be on India, Israel, and Pakistan, which operate unsafeguarded nuclear facilities capable of producing fissile material that could be used to make nuclear explosives. The nuclear tests by India and Pakistan, and their overt declaration of being NWS, have generated concerns over a heightened possibility of a nuclear arms race, and even nuclear war, breaking out in the sub-continent. In the Middle East, the United States and other Western states continue to oppose bringing pressure upon Israel to join the Treaty, in the absence of a comprehensive regional peace arrangement.

Under current circumstances these three states are unlikely to accede to the NPT through the route taken by South Africa (dismantling their nuclear explosive capabilities and then joining the Treaty), while the wording of the Treaty itself precludes them joining it as nuclear weapon states. Selective emphasis on promoting universality epitomizes Western "hypocrisy" in nonproliferation strategies: on the one hand, the UN Security Council calls upon India and Pakistan to renounce unconditionally their nuclear and missile capabilities without requiring a regional peace settlement; on the other hand, key Western states remain unwilling to bring pressure upon Israel to join the Treaty even though it remains the only country in its region outside the NPT.

Nuclear Nonproliferation

The core issue in this context is compliance with the Treaty, particularly Articles I and II, with respect to four sets of issues. The most prominent of these are alleged breaches of Article II of the Treaty by NNWS through actions designed to facilitate the production of nuclear explosive devices. In particular, activities by the DPRK and Iraq have crossed a threshold of non-compliance that many believe has not been adequately addressed. According to the United States, Iran may be a similar case, although the IAEA has no such evidence in this regard. A second, more controversial set of issues is the legitimacy of storing or stationing nuclear weapons belonging to one of the five NWS on the territory of a NNWS, as well as military exercises with nuclear missions involving personnel from NNWS. Third, India and Pakistan’s nuclear tests have directly challenged the NPT’s nonproliferation norm. Finally, there is the question of whether the NWS have breached their nuclear disarmament commitments under Article VI of the Treaty through vertical proliferation and lack of meaningful progress in achieving the elimination of their nuclear weapons.

Nuclear Disarmament

Disagreements over whether progress toward the goal of nuclear disarmament has been achieved have been a perennial feature of past NPT review meetings. The significance of these disputes derives from several factors. One is that the NPT is the only legal document in which NWS have committed themselves to "pursuing negotiations in good faith on effective measures relating to ... nuclear disarmament." Its significance in this regard was highlighted by the use made of it by the Judges of the International Court of Justice in 1996 in delivering their advisory opinion on nuclear weapons, as they argued that this committed the NWS not just to negotiate on nuclear disarmament, but also to conclude definitive agreements. Thus the NPT is seen as a valuable context within which NNWS can pressure NWS for more action on nuclear disarmament, as it is the only legally binding commitment accepted by all five NWS regarding nuclear disarmament.

A second factor is that implicit in the NPT text is the proposition that the possession of nuclear weapons by the NWS is not a permanent situation, and that the NPT is both a nuclear disarmament and a nuclear nonproliferation treaty, with the latter being a contributing condition for achievement of the former, and vice versa. Thus, from both political and security perspectives, substantively addressing nuclear disarmament is regarded as an important method of strengthening both the NPT and the nonproliferation regime.

Nevertheless, the NWS have systematically and determinedly opposed all attempts since the 1995 NPTREC to be involved in a substantive engagement on nuclear disarmament issues in any multilateral forum, be it the NPT review process, the Conference on Disarmament (CD), the UN First Committee, or even NATO councils. In NPT review fora, the NWS have accepted "talking" sessions on nuclear disarmament, but they have continued to reject any and all proposed language calling upon them to implement existing bilateral treaties, negotiate new reductions, or take unilateral measures toward nuclear disarmament.

The Comprehensive Test Ban Treaty

The 1995 "principles and objectives" specified a "programme of action" containing three specific measures: an immediate objective, the completion of negotiations on a CTBT by the end of 1996; a follow-on objective, the "early conclusion of negotiations on a non-discriminatory and universally applicable convention banning the production of fissile material for nuclear weapons or other nuclear devices" (Fissile Material Cut-Off Treaty, or FMCT); and the "determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally."

A CTBT opened for signature in September 1996, but with an entry-into-force provision that made it dependent upon ratification by all 44 states operating nuclear research reactors. In the event that these ratifications were not forthcoming three years after its opening for signature, the treaty specified that a political conference of those states that have ratified it would be held to consider how to expedite entry into force, and would be repeated annually thereafter. This conference was held in Vienna on October 6-8, 1999, and was attended by 92 ratifying and signatory states. At the time of writing, the CTBT had been signed by 154 states and ratified by 51 signatory states—and 41 of the 44 nuclear-capable states had signed and 26 had ratified. Three of the 44 still had not signed: the DPRK, India, and Pakistan. Only two NWS, France and the United Kingdom, had ratified the treaty. The US Senate dealt a singular blow to the CTBT when it voted down the Treaty on October 13, 1999. President Clinton then committed the United States to not resuming testing, called upon other states not to test either, and pledged to strengthen efforts to bring about the entry into force of the CTBT. This setback, however, has significantly raised the probability of a resumption of nuclear testing by Russia, China, and India. Thus, the CTBT’s entry into force will inevitably become an important controversial issue at the 2000 Review Conference.

Fissile Material Cut-Off Treaty

After two years of deadlock in the Conference on Disarmament over whether negotiations on an FMCT and discussions on a future program for disarmament should proceed in parallel, the South Asian tests prompted establishment last August of an ad hoc committee on an FMCT based on the mandate contained in the March 1995 report of the Special Coordinator. The substantive issue that had been preventing progress on this matter was whether existing stocks of nuclear materials should be covered by this treaty, in addition to its prohibition on new production. The ad hoc committee on an FMCT was not re-established during the 1999 session of the CD due to disagreements over parallel negotiations on nuclear disarmament and preventing weaponization of space. Given the opposition of the United States and the other NWS to even discussing nuclear disarmament at the CD, and given US plans to proceed with testing and deploying missile defenses, it is very unlikely that negotiations on an FMCT can commence at next year’s session of the CD (due to the linkages established by the non-aligned group and by China, respectively). Therefore, this item from the 1995 "principles and objectives" program of action will most likely also fail to achieve substantial progress by the time the 2000 Review Conference opens.

The Conference on Disarmament Agenda

A related development is the increasing frustration felt by representatives of many NNWS, across political groupings, due to the lack of any new agreed international vision for nuclear disarmament. The so-called "decalogue," or agenda for the work of the CD, had its origins in the 1950s. Given the vastly different international environment of the 1990s, there has been an increasing perception that this needs to be revisited and a new agenda created to reflect contemporary disarmament realities, perspectives, and possibilities. The deadlock has continued at the CD over whether or not to discuss nuclear disarmament, and this has prevented progress being made on any other issues, including an FMCT, security assurances, or prevention of an arms race in outer space.

This was evident in the June 9, 1998 announcement of an eight-nation initiative "Towards a Nuclear-Weapon-Free World: The Need for a New Agenda." This effort was the product of eight states from all the main UN caucus groups, which later sponsored Resolution L.48 at the First Committee and Resolution 53/77Y in the UN General Assembly. Most notable was that 12 NATO states abstained rather than voting "no" as urged by the three Western NWS, thus hinting at a major change in their nuclear policy. A revised resolution will be presented at this year’s First Committee, making it even more difficult for many moderate Western states to oppose it or to abstain from supporting it. The New Agenda Coalition will undoubtedly develop this issue further at the 2000 NPT Review Conference.

SALVAGING THE NPT REVIEW PROCESS

With the strengthened review process now being reduced to a virtual dead letter, what might be done at the 2000 Review Conference, with a view to salvaging some vestiges of a strengthened review? The only practical way forward seems to be one based on innovative yet practical initiatives—i.e., to consider qualitatively new modalities to promote the review and implementation of the Treaty, in accordance with the NPTREC package of decisions and associated resolution.

In 1995, a small number of states that were committed to the continuing viability of the NPT were successful in establishing unprecedented new parameters that were captured in NPTREC Decisions 1 and 2. A similar effort is now required to ensure "permanence with accountability" of the NPT—an effort that once again explores unprecedented measures and stretches the parameters of the debate. These might include, for example, redefining the consensus rule, revising the structure of the review process, refocusing the role of the depositaries, and augmenting the role of the chairs.

Furthermore, the 2000 Review Conference could consider additional documents clarifying or supplementing the interpretation of the 1995 decisions on a "strengthened review process" and on "principles and objectives," as well as of the resolution on the Middle East.

Developing New Flexibility in Political Groupings

Even though the Cold War has ended and old ideological divisions have been transformed, traditional regional groupings endure on international security issues, despite the fact that they fail to reflect the current status of the international community. Tendencies toward rigidity and confrontation emanating from the obsolete Cold War-driven group structure are unnecessary and potentially open to change. Interest-based coalitions could thus be formed on the basis of shared goals, with participation of the great majority of NPT states from across traditional regional groupings, to press for structural innovations as suggested above.


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