A Ban on Fissile Material as an Objective of the NPT

By Jean du Preez

Introduction
When the negotiations for the Nuclear Non-Proliferation Treaty (NPT) were in progress, a ban on the production of fissile materials for military purposes was included in a group of measures - together with a comprehensive test ban treaty, reductions in the nuclear arsenals of the nuclear-weapon powers, and the international management, control, and storage of plutonium. Although not directly addressed in the articles of the Treaty, clear reference to the "cessation of the manufacture of nuclear weapons, the liquidation of all (their) existing stockpiles, and the elimination from national arsenals of nuclear weapons and their means of delivery" is made in the preamble to the Treaty. This "desire" is further emphasized in Article VI which requires State parties to undertake "negotiations in good faith on effective measures to cessation of the nuclear arms race at an early date and to nuclear disarmament". As such the Treaty anticipates the cessation of the nuclear arms race and the achievement of the elimination of nuclear weapons.

In achieving the goals of the NPT, control over nuclear weapons materials and the cessation of their production for weapons purposes would be important steps in the complex political and technical process of nuclear disarmament. Nuclear weapons may range in sophistication from fission weapons to boosted weapons, thermonuclear weapons, fission-fusion-fission weapons and enhanced radiation weapons. All require certain specialized materials for their construction. Ceasing the production of such materials could lead to a quantitative capping of the number of weapons in existence and to laying the foundation for their eventual elimination.

With the end of the Cold War and the perceived need to make progress in arms control, the concept of a fissile material cut-off treaty as a separate instrument was given considerable impetus by the United States. In his speech to the United Nations General Assembly in September 1993, President Bill Clinton stated that: "We will pursue new steps to control the materials for nuclear weapons. Growing global stockpiles of plutonium and highly enriched uranium are raising the danger of nuclear terrorism in all nations. We will press for international agreement that would ban production of these materials for ever." As a result the General Assembly adopted a consensus resolution entitled "Prohibition of the production of fissile materials for nuclear weapons or other nuclear explosive devices"[i], which recommended "the negotiation in the most appropriate international forum of a non-discriminatory multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices." The General Assembly envisaged the treaty to cover the production of weapon-grade plutonium (plutonium containing more than 93 per cent of the isotope plutonium-239), weapon-grade highly-enriched uranium (uranium enriched to over 90 per cent uranium-235), and uranium-233 for nuclear weapons or other nuclear explosive devices, or outside of international safeguards. The General Assembly also requested the IAEA to provide assistance for examination of verification arrangements for such a treaty, but it did specify the Agency's role. Although previous UN resolutions referred to the "production and stockpiling" of fissile materials, the 1993 resolution dropped reference to stockpiles in order to gain consensus. Similarly, although the General Assembly resolution described the treaty banning production as "a significant contribution to nuclear non-proliferation in all its aspects," it did not specifically address existing stocks of fissile materials.

An underlying motive in the quest for an international treaty banning the production of weapons grade material during the 1990s, as opposed to today, was to capture the states outside the NPT, most notably India and Pakistan under such a universal ban. This However, this desire seems no longer important. Today the position of particularly the United States indicates that effective verification of an FMCT cannot be achieved, even with extensive verification mechanisms and provisions. Even more puzzling is that the ratification of Indian and Pakistan should be required for the treaty to enter into force. Judging by the provisions of the US Congressionally approved U.S./India nuclear cooperation deal, lucrative nuclear technology and material sharing now outweighs the importance of capping India's nuclear weapons program. This holds dangerous consequences for the future of the FMCT, if not the nuclear nonproliferation regime at large.

The Shannon mandate
Upon commencement of its first session for 1994, the Conference on Disarmament (CD), on 25 January 1994, appointed Ambassador Gerald E. Shannon (from Canada) as Special Co-coordinator to "seek the views of its members on the most appropriate arrangement to negotiate" a FMCT. Ambassador's Shannon's consultations soon indicated that despite the wide support for the negotiations of a FMCT to be conducted in the CD, that there were differing views on the scope of such a treaty (i.e. whether it would include the past production as well as the future production of fissile materials for nuclear weapons).

Some CD delegations supported a mandate that would only permit consideration of future production of fissile material. The five NPT nuclear weapon States (NWS) and India rejected attempts to address past production, arguing that the 1993 General Assembly resolution only dealt with future production. Other delegations (in particular Pakistan, Iran, Egypt and Algeria) argued that the mandate should also include consideration of past production. Another group of States felt that consideration of a FMCT should not only relate to production of fissile materials (past or future), but also to other issues, such as the management of such material. Several delegations insisted on the inclusion of existing stockpiles in the negotiation mandate.

When the CD adopted the Shannon report [ii] in March 1995, it agreed to establish an ad hoc Committee "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."[iii] Although the negotiating mandate for the ad hoc Committee was based on the 1993 General Assembly resolution, the language in the Shannon report reflected the diversity of views among CD members[iv]. The report stated clearly that any delegation could raise issues of scope and verification within the Committee, viewed as necessary to get consensus on the mandate in time for the 1995 NPT Review and Extension Conference.

The promise of an FMCT and the indefinite extension of the NPT
The promise of a FMCT played a prominent role in advocating the indefinite extension of the NPT at the 1995 NPT Review and Extension Conference. The achievement of the CD agreement to negotiate a FMCT based on the Shannon report and the mandate contained therein is one of the grand commitments made by the NWS in return for wide support of indefinite extension of the NPT. At least one NWS - the United States - launched a campaign among key non-nuclear weapon States (NNWS) arguing that in addition to its commitment to achieving a Comprehensive Nuclear Test Ban Treaty (CTBT) and the reduction of nuclear warheads by both the United States and the Russian Federation under the START I and II treaties, that its proposal on a global ban on the production of nuclear material for weapons are linked to the indefinite extension of the NPT. It is important to note that in a letter to then South Africa president Nelson Mandela, President Clinton linked U.S. commitment to these arms control and disarmament objectives directly to the NPT's indefinite extension. In calling on President Mandela to make a public call for the indefinite and unconditional extension of the NPT, he stated that "if the duration would be placed in question, further arms control progress would become far more difficult." It is assumed that similar promises were made to many other key players prior to the 1995 Review and Extension Conference.

The package of integral decisions adopted at the 1995 Conference provided a way for all states parties to support the indefinite decision while providing for the ways and means through which progress toward achieving nuclear disarmament and nonproliferation could be achieved. A key element of this package was the "Principle and Objectives for Nuclear Non-proliferation and Disarmament" which recognized a fissile material treaty in accordance with the Shannon mandate as an important disarmament measure for "the full realization and effective implementation of article VI."

An FMCT held hostage
Of course the CD never really got started with active negotiations on a FMCT. While the 1998 Indian and Pakistani nuclear-weapon tests provided some motivation to get negotiations going, divisions among its members continued over the program of work. Until then, a number of CD members, mainly from the G-21, wanted the negotiation of a FMCT to be linked with discussions of a phased timetable of nuclear disarmament. Four out of the five NPT NWS have consistently refused to agree to such linkage. China linked progress on an FMCT to negotiations on a treaty to ban an arms race in outer space (PAROS).

While at the end of its 1998 session, an ad hoc committee chaired by Canadian Ambassador Mark Moher was established, very little progress was made before the 1998 session ended. In fact the ad hoc Committee function for less than three weeks before the session ended. FMCT negotiations have since been held hostage to other issues related to its program of work, including wider issues of nuclear disarmament and negotiations on a treaty to ban an arms race in outer space.

More FMCT promises lead to success in 2000
The success of the much heralded 2000 NPT Review Conference was largely hooked onto the unequivocal undertaking given by the NWS to accomplish the total elimination of their nuclear arsenals as part of thirteen practical steps for the systematic and progressive implementation of Article VI. A key component of these practical steps was the agreement on the necessity of negotiations in the CD on a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other explosive devices in accordance with the statement of the Special Coordinator in 1995 and the mandate contained therein, taking into consideration both nuclear disarmament and nuclear non-proliferation objectives. The CD was also urged to agree on a program of work to allow for the immediate commencement of negotiations on such a treaty with a view to its conclusion within five years[v]. After the conclusion of the CTBT negotiations and its subsequent adoption in 1996, negotiating a FMCT was seen as the next logical step for nonproliferation and nuclear disarmament.

The 2000 agreement is significant since it not only solidified the 1995 agreement to immediately start negotiations on the FMCT, but it also added a timeframe for the conclusion of such negotiations. It is also important to note that the 2000 Final Document stated that negotiations of a FMCT should to take into consideration both nuclear disarmament and nuclear non-proliferation objectives. However, the 2000 agreement was, inherently flawed in that it required negotiations to commence in the context of an agreed program of work in the CD. Many other agreements reached at both the 1995 and 2000 conferences have since been questioned if not reversed, leading many to believe that the accompanying agreement on the indefinite extension of the treaty was equally flawed.

To link or not to link?
In an effort to bridge the gap between the different positions of key member states, particularly the United States and China, various past CD presidents have submitted proposals for a program work based on their intensive consultations. The so-called Five Ambassadors Proposal[vi], put forward by former CD presidents Dembri (Algeria), Lint (Belgium), Reyes (Colombia), Salander (Sweden), and Vega (Chile) provided a clear negotiating mandate for a fissile material ban, while directing an ad hoc Committee on PAROS to "deal with" the issue "without limitation and without prejudice."[vii] The PAROS mandate was subsequently amended according to suggestions submitted by China. The amended mandate directed an ad hoc Committee on PAROS to deal with the issue "without limitation", "including the possibility of negotiating relevant international legal instrument."[viii] Significant progress was made in August 2003, when China and Russia accepted the amended proposal, and joined the emerging consensus on a program of work. Unfortunately not all CD members were ready to negotiate on these terms.

Impact of new U.S. position
In July 2004 the United States announced that it was "not realistically possible to verify the treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices in any meaningful way" and that "effective verification of an FMCT would require an inspection regime so extensive that it could compromise key signatories' core national security interests and so costly that many countries will be hesitant to accept it," was a serious blow -- if not a fatal one -- to long standing expectations that a FMCT would be the next step taken toward nuclear disarmament.

At the fifty-ninth session of the General Assembly, the United States followed-up by announcing that while an FMCT was "ripe for negotiations and achievable" a U.S. policy review raised serious concerns that realistic, effective verification of such a treaty was not achievable. The United States consequently voted for the first time against the traditional consensus FMCT resolution opening the door for at least two other CD members (Israel and the United Kingdom) to also question the 1995 Shannon mandate. The consequence of this development signaled further deadlock at the CD, and placed into question the relevance of the CD as a disarmament negotiating body. It also complicated -- if not jeopardized -- any chances to achieve success at the 2005 NPT Review Conference.

Disagreement over the mandate of FMCT negotiations was one of many fault lines at the 2005 Review Conference. The majority of states called for the continued maintenance of the moratoria on the production of fissile material for military purposes until the negotiation of an FMCT in accordance with the original mandate. However, U.S. opposition to the original mandate by now has influenced other key states with the result that the United Kingdom, France, and several other European Union states called for negotiations to commence without reference to the Shannon mandate. While the chairman's paper attached to the report of Main Committee I[ix] did not mention the FMCT per se, it offered interesting opportunities to be explored. As such it stated that:

(10) "The Conference pledges urgent efforts, especially in the Conference on
Disarmament, to pursue and implement options for enhanced multilateral and other action on nuclear disarmament, including compliance aspects, and appeals to all members of the Conference on Disarmament to demonstrate the necessary flexibility to enable adoption of a programme of work that will advance crucial NPT-related tasks."

(11) "The Conference seeks affirmation by the nuclear-weapon States that they will place, as soon as practicable, fissile material designated as no longer required for weapons purposes under IAEA or other relevant international verification, and, welcoming work already undertaken on the development of verification capabilities for nuclear disarmament, urges that such work be initiated by those nuclear-weapon States not already doing so."

Following the dismal outcomes of both the 2005 NPT Review Conference and the World Summit, the sixtieth General Assembly for the first time since 1993 did not consider a resolution on an FMCT. Canada - its traditional sponsor - ostensibly decided to avoid another divisive vote on the Shannon mandate, and to avoid confrontation with the United States and other CD members who by now have also started to question the original mandate. Japan's traditional nuclear disarmament resolution[x] was the only resolution that included a clear reference to the FMCT with wide support, including from France, Russia and the United Kingdom, but opposed by India, the United States (China abstained). Notably the Japanese resolution emulated what by now have became an EU position by not reiterating the Shannon mandate and by omitting any direct reference to international verification. Instead it emphasized the importance of negotiating and concluding negotiations on the treaty, calling also for all nuclear weapon possessors (NPT and non-NPT) to declare moratoria on the production of fissile material for nuclear weapons pending the entry into force of the treaty. The New Agenda resolution[xi] disappointingly did not mention the FMCT, but instead called on the NWS "to accelerate the implementation of the practical steps towards nuclear disarmament that were agreed upon at the 2000 Review Conference, thereby contributing to a safer world for all". While the Myanmar resolution[xii] included a clear reference to the Shannon mandate, China was the only NWS that supported it, while France, the United Kingdom and the United States, together with most of the NATO states voting no. Russia, India and Pakistan abstained.
At the 2006 CD session, the United States was clearly anxious to move forward on negotiations of the FMCT trying to create the impression -- at least in the Washington -that such a treaty it could be concluded by the end of 2006. On May 18th, it tabled a draft FMCT and a draft negotiation mandate. The U.S. draft treaty and negotiation mandate made no reference to an effective verification mechanism. Instead, it argued that verification would be accomplished through "national means and methods." Additionally, the treaty's entry into force would require only the five NPT NWS, potentially leaving out the three states with unsafeguarded nuclear materials but armed with nuclear weapons: India, Pakistan and Israel. Existing stocks of fissile materials will also not be subject to the U.S. draft treaty. The draft furthermore allows exception for the production of highly enriched uranium (HEU) for naval propulsion which could create a dangerous loophole. According to the U.S. draft, the treaty would have a life span of 15 years, after which it would only be extended by consensus. Many CD members saw this as an effort to undermine the 1995 Shannon mandate which effectively re-opened the debate over linkages to other items on the CD agenda. Consequently, little progress was possible on either the FMCT or the CD program of work.

The outcome of the 61st General Assembly predicted an even bleaker future for the treaty. U.S. opposition to a verifiable have now influenced an even larger number of countries one way or the other. Not only did the traditional Canadian sponsored draft resolution not include any reference to the Shannon mandate - directly or indirectly - but it re-opened the debate about linkages to other issues on the CD agenda, since it called on the CD to immediately commence negotiations on a treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices "without prejudice to work that may be undertaken on other items in the agenda of the Conference." So, instead of facing mainly U.S. opposition, the draft resolution now also met opposition from a large number of Nonaligned Movement (NAM) states. Canada wisely decided to withdraw the resolution. The New Agenda resolution again did not mentioned the FMCT specifically. The Japanese resolution "Renewed determination towards the total elimination of nuclear weapons" only emphasized the importance of negotiations to commence without referring to the need for a verifiable treaty. While the Myanmar resolution included a direct reference to the original negotiation mandate, no fewer than 66 countries either voted no or abstained. Granted many of these negative votes were also tied to other aspects of that resolution.

Conclusion: Drawing lessons from the past
The prospect of FMCT negotiations starting during the 2007 CD session is very bleak. Ironically the long deadlock in the CD resulted in many initiatives in and around the CD to promote the various objectives of a FMCT, including its verifiability and scope. The Netherlands for instance organized in 2002n and 2003 open-ended informal meetings that focused on the scope and verification of a treaty. These consultations, while informal in nature helped to create a better understanding among CD members about the technical and legal aspects of the future treaty. All possible options for an FMCT have been analyzed by experts and several versions of a draft FMCT are widely available. Of particularly interest is a draft text[xiii] prepared by Tom Shea, formerly a senior IAEA official and now with the U.S. Department of Energy. Several technical studies have shown that an FMCT is not only important in today's security environment - both a nonproliferation and disarmament measure - but that it could be internationally verifiable. Most notable of these reports is the first report of the International Panel on Fissile material released the past September.

The idea of a FMCT is not new. It has been a longstanding goal of the international community, in particular the United States and members of the European Union. The positions of delegations are well known and sufficient resource material is available to start serious negotiations on a future FMCT. What is lacking is the political will by a few states.

So what does history tell us?

1. The NPT was extended indefinitely based on a set of "political conditions,"[xiv] a major component of which was a set of principles and objectives for nuclear nonproliferation and disarmament anchored to three clearly defined disarmament actions, important amongst which was an FMCT negotiated in accordance with the Shannon report and the mandate contained therein.
2. The indefinite extension decision was further solidified when the 2000 NPT Review Conference not only reaffirmed, but added that negotiations of a FMCT should to take into consideration both nuclear disarmament and nuclear non-proliferation objectives.
3. Since many undertakings given at both the 1995 and 2000 NPT Conferences have been forgotten, or in some cases abrogated, it now begs the question whether the decision to indefinitely extend the NPT was indeed the right one to take. Many would argue that it was not.
4. Given the increased threat that weapons grade fissile material could become accessible to non-state actors or terrorist groups, a multilaterally negotiated verifiable treaty is of even more relevance today than in the early 1990's.
5. Sufficient technical evidence exists that an FMCT could be effectively verified.
6. Although differences have been identified, and remain, over the scope of the treaty and its effectiveness, as well as over linkages to negotiate other arms control and disarmament treaties, the problem is not one of semantics, but of higher political nature.
7. The impasse on issues of linkage may reflect the reality that none of the nuclear weapon states -- NPT and otherwise - currently gives a high priority to pursue an FMCT. These, and a few other CD members seem to believe that their interest would be at such risk if negotiations are started in the CD (or elsewhere), that those interests cannot be guarded by the consensus rule that traditionally govern multilateral negotiations of this nature.
8. Careful reflection is required at the highest political level by all CD members, in particular those states who continue to have reservations about a verifiable treaty, on whether the idea of an FMCT continues to be a high priority.
9. Since the 1995 Shannon report clearly protects national positions concerning the scope and verification of a future treaty, the mandate is not conditional, but already allows all CD members to put forward arguments and concrete proposals in favor of or against the treaty's scope and its verifiability.
10. Commencement of FMCT negotiations will most likely require agreement not only on a CD program of work, but a package that could include strengthened IAEA safeguards and perhaps even international control over the civilian nuclear fuel cycle.

[i] United Nations General Assembly, 48th Session, Resolution 48/75L (co-sponsored by thirty countries including Australia, Canada, Germany, India, Japan, Sweden and the US)
[ii] CD/1299, March 24, 1995
[iii] Ibid
[iv] In his report Ambassador Shannon stated "During the course of my consultation, many delegations expressed concerns about a variety of issues relating to fissile material, including the appropriate scope of the convention. Some delegations expressed the view that this mandate would permit consideration in the Committee only of future production of fissile material. Other delegations were of the view that the mandate would permit consideration not only of future but also of past production. Still others were of the view that consideration should not only relate to production of fissile materials (past or future) but also to other issues, such as the management of such materials. 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."
[v] General Assembly resolution 56/24J dropped the reference to five years (in order to achieve consensus) from the text of this resolution calling on the CD to start negotiations on the treaty.
[vi] CD/1693, 23 January 2003
[vii]Ibid
[viii] Ibid
[ix] Report of Main Committee I, 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT/CONF.2005/MC.I/1)
[x] General Assembly resolution 60/65: "Renewed determination towards the total elimination of nuclear weapons"
[xi] General Assembly resolution 60/56: "Towards a nuclear-weapon-free world: accelerating the implementation of nuclear disarmament commitments"
[xii] General Assembly resolution 60/70: "Nuclear disarmament"
[xiii] "The Fissile Material Cut-Off Treaty: A Venue for Future progress in Arms Control, Non-Proliferation and the Prevention of Nuclear Terrorism", Tom Shea
[xiv] Remarks by Ambassador Thomas Graham, Jr. during a Global Security Institute Forum "Lessons for the Future From the Crucible of Experience" held in New York on May 24, 2005

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