On July 1, 1968 the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was opened for signature, codifying for the first time a legally binding obligation to achieve nuclear disarmament. This year marks the 40th anniversary of this historic arms control treaty, to which every state in the United Nations except three has been a party (India, Pakistan, and Israel have never been signatories – North Korea withdrew from the Treaty in 2003).
Much has been written about whether the NPT regime is failing, in need of revision, or simply outdated. The NPT regime faces many challenges: nuclear weapons now enjoy a prominent place in the security policies of nuclear weapon states and new plans have been designed for their use including preemptive and preventive actions; materials and technology obtained from the civilian nuclear cooperation promoted by the Treaty could be used to manufacture nuclear bombs; a black market in nuclear technology and materials has been discovered; and the global rise in energy demand has put nuclear energy into the mix of solutions to this emerging crisis, despite the proliferation risks associated with advanced fuel cycle technology. Some voices counter that, with very few exceptions, the principles of the Treaty have prevented the widespread proliferation of nuclear weapons envisaged in the 1960’s by President Kennedy. One thing is clear: renewed commitment from the highest levels of government will be necessary to achieve the goals of the NPT and enable the processes and norms associated with the Treaty to peacefully navigate through the challenges it is facing and maintain its relevance for the future.
The NPT is based on a 3-part bargain between nuclear weapon states parties (NWS) and non-nuclear weapon states parties (NNWS): NNWS agree not to acquire nuclear weapons or nuclear weapon materials; NWS agree to facilitate the exchange of civilian nuclear technology, equipment, and materials to enable all parties to benefit from the peaceful uses of the atom; and NWS agree to “pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament.” To ensure that the proliferation of weapons or weapons materials would not take place, NNWS agreed to have their civilian nuclear facilities subject to inspection; this obligation is carried out through International Atomic Energy Agency (IAEA) safeguards agreements.
While the obligations of the NNWS are subject to monitoring to ensure compliance, the obligation to work toward nuclear disarmament has no similar monitoring or implementing mechanism written into the Treaty. This omission has translated into many problems, including a mixed review on the implementation of the disarmament obligation in Article VI. For example, the United States claims it is in fact complying with Article VI, pointing to significant reductions in US nuclear forces since the height of the Cold War. NNWS believe, however, that reductions from tens of thousands to a few thousand nuclear weapons do not represent a good faith effort to work toward total nuclear disarmament. In fact, NWS have resisted all attempts to negotiate a treaty for the abolition of nuclear weapons through the United Nations’ disarmament machinery. What “nuclear disarmament” and working toward “negotiation in good faith” for nuclear disarmament mean then is conspicuously absent from the NPT and needs to be well defined for the future health of the Treaty.
The issue that is currently at the forefront of international concern regarding the NPT is another part of the bargain – the “inalienable right” of NNWS to develop, research, and produce nuclear energy for peaceful purposes. Part of this Article IV right involves an obligation of all states parties to facilitate the exchange of equipment, technology, and scientific information for the peaceful uses of nuclear energy to NNWS. Here is where the main problem lies: the same technology that is used in the creation of nuclear energy can be used to create fissile material for use in nuclear weapons. If NNWS indeed have the right to advanced fuel cycle technologies and equipment, then they have the possibility of becoming latent nuclear weapon states while adhering to the Treaty, able to create bomb-grade fissile material if the political decision to do so is made. Creating a host of new latent nuclear weapon states was clearly not the intention of the NPT; figuring out how to close this apparent “loophole” in the Treaty is one of the most important challenges facing the NPT regime for the future.
The Vienna Convention on the Law of Treaties states that an international treaty is to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” For the NPT, the problem is that NWS and NNWS have different opinions on how to interpret Article IV. This has serious implications for international peace and security, as evidenced by the collective anxiety over Iran’s enrichment facility at Natanz. What needs then to be established is a clear understanding of what the “object and purpose” of Article IV is, and how the right to the peaceful uses of the atom should be exercised. Achieving consensus on anything in the international community is a challenge (see ten years of deadlock in the Conference on Disarmament as one example), but a commitment to achieve such agreement from the highest levels of the governments of states parties is necessary to preserve the NPT regime.
Before NNWS will accept any further restrictions on their right to peaceful nuclear technology NWS must address their nuclear disarmament obligation. This is because the inequality in the Treaty between the nuclear weapon “have’s” and “have-not’s” was supposed to be temporary, but forty years later the world is still not nuclear weapon-free. Eliminating the threat of use of nuclear weapons through the promise of nuclear disarmament was an essential part of the bargain used to achieve the near universal adoption of the Treaty, without which it is unlikely that capable regional powers such as Brazil and Argentina would have agreed to forgo their domestic nuclear weapon capabilities indefinitely. Now the NWS are asking NNWS to forgo their right to advanced fuel cycle technologies because of the proliferation risks and to rely instead on current supplier states or some yet-to-be-developed international scheme for their nuclear power reactor fuel. NNWS have no incentive to constrain their right to develop indigenous fuel cycle capacities, as they observe the continued record of non-compliance by NWS with their nuclear disarmament legal obligations and political commitments given at NPT Review Conferences. NNWS want to hold on to their Article IV right for reasons of national pride, lack of trust in the supply, or to secure their survival by becoming latent nuclear weapon powers. This scenario is playing out in Iran today, where that country refuses to forgo indigenous uranium enrichment for a healthy mix of all of the previously mentioned reasons.
It is imperative from a nonproliferation standpoint to change the nuclear power reactor fuel supply system. The new system must be universal, non-discriminatory, and internationally owned and operated, guaranteeing an uninterrupted fuel supply. This will be difficult to achieve for many reasons, including the fact that all reactors operate on slightly different levels of enriched uranium and various types of fuel assemblies are required. But the alternative in which enrichment and even reprocessing technology becomes more wide-spread carries with it too many potential proliferation risks and will undermine the object and purpose of the NPT, which is to prevent the spread of nuclear weapons.
A world with more nuclear weapon states is a less secure world, with more opportunity for the intentional or accidental use of nuclear weapons and for the theft or sale of fissile material or bombs. The NPT at heart is both a disarmament treaty and a treaty for international cooperation on the spread of science for the advancement of humankind. What is lacking from the debate on the future of the NPT is the need to define the terms of the Treaty that are in question: nuclear disarmament; “good faith” obligation to negotiate toward nuclear disarmament; “the fullest possible exchange” of peaceful nuclear equipment and technology; and the “inalienable right” to develop, research, and produce nuclear energy. Once these terms are defined to the satisfaction of all states parties, then it will become clear which obligations are being met and which parties are falling short of their obligations. This consensus will be extremely difficult to achieve, but the alternative could be the collapse of the Treaty regime and the emergence of more nuclear weapon states. This cannot be allowed to happen – representatives of governments at the highest levels need to work now to define these terms and implement their legal obligations to ensure the Treaty remains relevant for the future.