Viewpoint

Non-Participation Treaty?

16 July 2004

The US Atoms for Peace programme in the mid-1950s launched a massive effort on the part of the nuclear weapons states to sell their technology worldwide for peaceful purposes – until China’s first nuclear weapons test in 1964 raised concerns about the proliferation of nuclear weapons. Legislation to control the spread of sensitive technology soon followed.

NON-PROLIFERATION TREATY

The Non-Proliferation Treaty (NPT) signed in 1968 by the UK, USA, USSR, and 59 other states resulted from three years of negotiations in the Eighteen-Nation Disarmament Committee in Geneva, and a 1967 agreement between the USA and the Soviet Union. The three main signatories agreed not to assist states without nuclear explosives to obtain them. The 25-year treaty became effective in 1970 and was extended indefinitely in 1995 by a consensus vote of 174 countries and to date 188 states are parties.

Five of the NPT’s 11 articles are of key importance:

• Article I commits nuclear weapons states (NWS) not to help non-nuclear weapons states (NNWS) to acquire nuclear weapons or other nuclear explosive devices.

• Article II obliges NNWS not to manufacture or otherwise acquire such weapons or devices.

• Article III obliges all NNWS to conclude a comprehensive safeguards agreement (‘full-scope safeguards’ or FSS) with the International Atomic Energy Agency (IAEA) within 18 months of signing the NPT. This applies to all nuclear material in the country and to nuclear-related exports. The NWS are under no such obligation, but may place their civil nuclear facilities under IAEA safeguards voluntarily.

• Article IV recognises the right of all parties to the fullest possible exchange of equipment, materials and scientific and technological information to develop the peaceful uses of nuclear energy “with due consideration for the needs of the developing areas of the world.”

• Article VI commits all parties to pursue negotiations in good faith towards nuclear disarmament.

The NPT has long been a source of resentment among developing countries who see it as a two-tier system with one set of rules for the ‘haves’ and more stringent rules for the ‘have nots’. They believe it has been used as much to protect the commercial interests of the developed world’s nuclear industries as to prevent the spread of nuclear weapons. They also see the NWS making no real efforts to implement Article VI.

SAFEGUARDS

The safeguards system supervised by the IAEA has been the key to the proper operation of the NPT, involving sophisticated monitoring systems designed to verify that no state diverts civil nuclear material or equipment for military purposes. Safeguards may be applied to the whole of any country’s nuclear activity, to specific materials or to a single nuclear facility. NNWS must apply safeguards to all nuclear activity, including all fissile materials in the entire fuel cycle, while the military facilities of the NWS are exempted from inspection. NPT members can only supply nuclear material or equipment to non-member states if IAEA safeguards are voluntarily applied. In countries with safeguards agreements, any nuclear material generated from the use of safeguarded nuclear material also becomes subject to safeguards. These countries are not obliged to reveal all their nuclear activities or to notify the IAEA if they intend to build unsafeguarded facilities. However, they are subject to other trade restrictions which, though not legally binding, have become progressively stricter over the years.

EXPORT CONTROLS

Shortly after the NPT entered into force, multilateral consultations on nuclear export controls led to the establishment of two separate mechanisms for dealing with nuclear exports: the Zangger Committee in 1971 and the Nuclear Suppliers Group in 1975.

The Zangger Committee

The Zangger Committee (or Non Proliferation Treaty Exporters Committee), named after its first chairman, Claude Zangger of Switzerland, was set up to consider how procedures for exporting nuclear material and equipment related to NPT commitments. In 1974 it produced a trigger list of items requiring application of IAEA safeguards if exported to a NNWS which was not party to the NPT. These included specified nuclear-related equipment such as pressure vessels, fuel charging and discharging machines, control rods, pressure tubes, zirconium tubes and primary coolant pumps. Other items added later included deuterium and heavy water exceeding specified amounts as well as nuclear-grade graphite. The list is regularly updated and the committee now has 36 member states.

The Nuclear Suppliers Group

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Any state determined enough will acquire the technology it is seeking

The Nuclear Suppliers Group (NSG, the London Group or London Suppliers Group), set up in 1974 after India detonated its first nuclear device, was intended to bring in France, not then party to the NPT. It included members and non-members of the Zangger Committee. The group communicated its guidelines (export rules) to the IAEA in 1978. These sought to ensure that transfers of nuclear material or equipment would not be diverted to unsafeguarded nuclear fuel cycle or explosive activities, and formal government assurances to this effect were required from recipients. The guidelines also recognised the need for physical protection in the transfer of sensitive facilities, technology and weapons usable materials, and strengthened retransfer provisions. The NSG began with seven members – Canada, France, Japan, UK, USA, USSR and West Germany – and now includes 41 countries.

The NSG list parallels the Zangger trigger list, but also includes criteria for transferring related nuclear technology, such as enrichment, reprocessing and heavy water production. In 1992 an NSG meeting in Warsaw agreed on Guidelines for the Transfers of Nuclear-related Dual-Use Equipment, Material and Related Technology. These included anything from high-strength aluminium to tritium production facilities and explosive-related technology. The list identified 67 categories of dual use items, the supply of which would require assurances of peaceful use, application of IAEA or equivalent safeguards, adequate physical protection, and acceptance by the recipient of similar conditions in the event of retransfer or replication.

TARGETING IRAN

After the fall of the Shah in 1979, Iran’s nuclear programme – hitherto a major market for the sale of Western technology – was subjected to all these restrictive arrangements and more. West Germany refused to continue with construction of the nuclear power plant at Bushehr, and other suppliers were quick to follow a US–led embargo on nuclear sales to the new Iranian regime.

Iran formally objected to these measures and at the third Preparatory Committee (PrepCom) session of the NPT Review and Extension Conference in September 1994, threatened to withdraw from the NPT alleging that the Western embargo violated Article IV of the Treaty which guarantees “the inalienable right of all parties to develop research, production and use of nuclear energy for peaceful purposes,” as well as full access to “equipment, materials and scientific and technological information” for such uses.

Although Iran did not act on this threat, the USA continued to tighten the embargo. This however, did not stop Iran from developing a highly sophisticated and comprehensive nuclear programme using indigenous resources as well as technology imported by way of an extensive Pakistan-based nuclear grey and black market, which had developed to circumvent these restrictions.

SLIPPING THROUGH THE CRACKS

The NPT as it stands is built on unstable foundations, and a number of countries have already slipped through the serious cracks in its structure. Iraq, Libya and North Korea – all at the time parties to the NPT – are now known to have been pursuing clandestine nuclear weapons programmes. India, Israel, Pakistan and South Africa have all developed and tested weapons while remaining outside the NPT regime. The jury is still out on Iran. In all these cases, a key motive was regional insecurity often exacerbated by Cold War politics – Arab-Israeli tensions in the Middle East, India-Pakistan rivalry (initially exacerbated by India’s fear of China), and the political isolation of both South Africa and North Korea.

Israel’s nuclear weapons have been tacitly accepted by the West for years, for strategic and other reasons, despite providing the incentive for development of an Arab bomb. With the end of the Cold War, military force was used to stop Iraq’s nuclear weapons programme, and Libya abandoned its efforts in 2003 partly for fear of the same but also because its attempts to build a bomb were leading nowhere and costing a great deal. North Korea – regionally isolated since the 1950s – was more successful, however, and in 2003 having achieved its aim, promptly pulled out of the NPT to avoid the repercussions of non-compliance.

South Africa, on the other hand, finally joined the NPT in 1991 after the collapse of Apartheid and dismantled its nuclear programme. But this had less to do with international pressure than with reintegration of the country into the African continent, which made regional security no longer an issue.

In the case of India and Iran, economic motives have also played a part. Both countries now have in place large-scale nuclear power programmes which they see as vital to their long-term energy security. And deep resentment that the necessary technology is being controlled and withheld has made both countries determined to ‘go it alone’.

LOSING CREDIBILITY

These resentments are widely shared in the developing world, even by states that currently have no nuclear programmes, which has been reflected in the difficulties faced in agreeing an agenda for the 2005 NPT Review Conference. The NPT has lost credibility, largely because of perceived injustice in implementation of Articles VI and IV.

Article VI

The end of the Cold War and the collapse of the USSR initially seemed to be making disarmament a reality, with significant arms cuts agreed by Russia and the USA. Subsequently, however, both countries made clear their intention to maintain and modernise their nuclear arsenals, albeit at a reduced level. There was little progress on the 13 Practical Steps for Nuclear Disarmament agreed at the 2000 NPT Review Conference.

These included ratification of a Comprehensive Test Ban Treaty (CTBT), negotiations on a Fissile Material Cutoff Treaty (FMCT), preservation and strengthening of the Anti-Ballistic Missile (ABM) Treaty. They also called for the NWS to take unilateral and multilateral steps towards nuclear disarmament, for more transparency on nuclear arsenals, and for making nuclear weapons reductions irreversible. The USA, in particular, not only failed to deliver on these commitments but adopted new policies that appeared to lower the barriers to nuclear weapons use. The 2001 Nuclear Posture Review described contingency plans to use nuclear weapons against seven countries, including five NNWS.

In a speech to the Carnegie Endowment for International Peace (CEIP) earlier this year, IAEA director general Mohamed ElBaradei noted: “Thirty years after the enactment of the NPT, with the Cold War ended and over 30,000 nuclear weapons still available for use, it should be understandable that many non-nuclear weapons states are no longer willing to accept as credible the commitment of nuclear weapons states to their NPT disarmament obligations.”

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Of course, military facilities of nuclear weapons states are exempt from inspections

Article IV

Many NNWS believe that, far from assisting the transfer of nuclear technology, the NPT regime has made it more difficult, along with increasingly stringent export control arrangements such as the NSG.

However, it has become clear that any state determined to pursue the nuclear option can find a way to do so. A flourishing black market has sprung up to service this need, which has been identified by ElBaradei as “perhaps the most disturbing lesson to emerge from our work in Iran and Libya.” He told the CEIP: “Nuclear components designed in one country could be manufactured in another, shipped through a third (which may have appeared to be a legitimate user), assembled in a fourth, and designated for eventual turnkey use in a fifth. The fact that so many companies and individuals could be involved is extremely worrying.”

The situation was further complicated by the collapse of the USSR. On the one hand this eased the situation for the NNWS as Russia – impelled by the needs of its new market economy – was keen to sell its nuclear technology, provided the facilities concerned were subject to IAEA safeguards. On the other, there were major concerns that the economic and political changes underway in the former Soviet states and resultant lax security would permit nuclear material to find its way to the black market and ultimately into the hands of terrorist organisations.

Predictably this led to growing pressure, especially from the USA, for tighter control over the export of nuclear equipment and materials. IAEA safeguards were no longer seen as adequate and all states were urged to sign Additional Protocols giving the agency the right to on-the-spot inspections and other intrusive investigations. Of course, the military facilities of the NWS are exempt from these procedures. There were also calls to further strengthen export controls and link them to the NPT, and for multinational control of sensitive technologies such as enrichment and reprocessing.

Not surprisingly, these developments simply confirmed the long-held views of the NNWS that the NPT is inherently unfair, operating two completely different sets of rules.

RETHINKING THE NPT

The NPT as it stands is fundamentally, and possibly fatally, flawed. Key states – Indian, Pakistan and Israel – remain totally outside the regime and North Korea has recently joined them. Iran could follow at any time, and others would not be far behind. As long as the treaty continues to distinguish between states with and without nuclear weapons there can be no solution to this problem. At present, India, Israel and Pakistan could only join the treaty as nuclear weapons states with all the privileges that brings. But this would in effect be rewarding them for years of defiance and would send the wrong message to those states which have accepted and abided by the rules.

But the NPT is the only international instrument currently in place for nuclear non-proliferation and disarmament and it needs to be workable. However, the NPT first needs to be reformulated in a way which makes it relevant to the post-Cold War world. A number of factors should be considered, if the NPT is to regain its credibility in today’s world:

• Any state that is determined enough will eventually acquire the nuclear technology it is seeking. The knowledge is out there and the genie cannot be put back into the bottle.

• The Cold War is over but, while it lasted, mutually assured destruction (MAD) prevented the use of nuclear weapons. While disarmament must remain the main target, there is no reason to assume that this same ‘madness’ does not apply to areas of regional tension where states possess nuclear weapons – probably more so because of geographical proximity. The greatest threat to security today comes not from inter-state conflicts but from the activities of sub-state groups and terrorist organisations.

• Global warming and other environmental concerns along with the development of relatively cheap, multifunctional, advanced nuclear systems are making the nuclear power option increasingly attractive to many states, including developing countries.

• Currently used nuclear systems developed in the Cold War years grew out of technologies intended for military purposes – the production of plutonium and highly enriched uranium (HEU) for the manufacture of weapons. New technologies are now available for both reactors and supporting fuel cycles which do not require the production of these materials.

For the NPT to be widely accepted it cannot continue to have two classes of members. The perceived inequalities of the present regime will have to be addressed, in particular those relating to Articles IV and VI of the treaty, through the introduction of a single set of rights and obligations for all parties. This would make it possible to bring in those states presently outside the treaty and could also involve opening up military facilities in all states to some degree of IAEA inspection.

While total nuclear disarmament is probably an unattainable ideal, the possibility should be considered of some kind of multinational control over nuclear arsenals.

Export controls need to be strengthened by bringing all states into arrangements such as the NSG as full members rather than continuing to view some as the main targets of NSG activities. The primary focus of controls should be illicit and black market trading.

While multinational control of existing reprocessing and enrichment activities may be an option, greater efforts should be made to assist the development of those technologies that do not involve processes resulting in the production of either plutonium or HEU. Developing countries wishing to pursue a nuclear energy option should be encouraged and helped to acquire such technologies through initiatives such as the IAEA’s INPRO project.

The final word goes to ElBaradei: “As I see it, we have before us two possible courses of action. We can wait for the unthinkable to happen; or we can take notice of the writing on the wall and begin to act today.”




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