New Paradigms Forum
June 1, 2010
by Christopher Ford
Well, the 2010 NPT Review Conference (RevCon) got a final document by consensus last week. (You can find a copy here, courtesy of Reaching Critical Will.) For observers who measure "success" by the achievement of an agreement per se – and particularly for those current U.S. officials who, then out of power, spent years criticizing their predecessors for the axiomatically catastrophic "failure" to achieve consensus at the 2005 RevCon – this is of course being hailed as a great victory.
It might seem almost churlish to point out that success in reaching an agreement is in itself no particular success at all: what matters is what it says – and, in particular, whether the RevCon contributes in a meaningful way to preventing the further spread of nuclear weapons or the achievement of other goals of the Treaty. Nonetheless, it is apparently still necessary to make this pedantic point. But let's not just make the point; let us build upon the insight by assessing what was actually said in the 2010 "Outcome Document" adopted without any changes from a draft circulated by the RevCon chairman on May 27 (NPT/CONF.2010/L.2), and by trying to put the 2010 text in context. Given the Obama Administration's eagerness to use disarmament concessions in order to win some kind of nonproliferation "payoff" in cooperation against nuclear weapons proliferation, does this 2010 document represent any kind of an advance?
To my eye, though Obama diplomats may have worked hard and perhaps had some success in preventing worse things from being said, it is hard to maintain that the 2010 document represents any significant movement forward on nonproliferation – especially by comparison to its fulsome endorsement of the conventional wisdom of the diplomatic community on matters of disarmament. In some respects, in fact, last week's document actually seems retrogressive on nonproliferation compared to what was agreed in 2000, and seeming especially weak in light of the fact that the intervening decade has seen the emergence of dramatic new proliferation challenges in North Korea and Iran. We appear, in other words, to have gotten very little, if anything, in return for all of our disarmament positioning. Let's take a look.
To understand the mismatch between the 2010 outcome document's forward-leaning treatment of NWS disarmament and its reticent handling of nonproliferation, it is useful to start by looking at its disarmament provisions.
One remarkable point about the 2010 outcome document lies in its repeated misstatement of the text of Article VI of the NPT. In partial contrast, recall that the drafters of the 2000 Final Document referred several times to that provision, including to parties' "commitment" to it, but they did not misrepresent the Treaty's text with the casual abandon of officials at the 2010 RevCon. To be sure, at one point the 2000 document refers to "nuclear disarmament, to which all States parties [sic] are committed under Article VI." Elsewhere in the 2000 text however, the drafters make clear that they do actually understand that Article VI actually obliges States Party only to "pursue negotiations in good faith" on "effective measures relating to" disarmament. (There is a subsequent call, for instance, to nuclear weapons state transparency regarding "the implementation of agreements pursuant to Article VI.")
The parties at the RevCon this year, however, went to some trouble to misstate Article VI at every opportunity, and without any hint that they actually read or understand it. This begins in the second paragraph of the document – which refers to "legally-binding commitments by the nuclear-weapon States to nuclear disarmament in accordance with the Treaty." (As anyone familiar with the NPT's text and negotiating history will recall, efforts were indeed repeatedly made to put just such obligations into the Treaty, but all were defeated. More disarmament-minded states, in fact, complained bitterly at the time that the NPT failed to contain "legally-binding commitments" to disarmament! Four decades later, the 2010 document apparently thinks these obligations can be willed retroactively into existence by force of rhetoric.) Paragraph 80 repeats the error, describing disarmament as something to which the nuclear weapons states (NWS) "are committed under Article VI," as does the document's "action plan" in its Recommendation I(A)(ii). Merely saying that the NPT contains legally-binding obligations to nuclear disarmament does not make it so, of course, but the Obama Administration's State Department lawyers appear to have made not a peep, and one can now expect that this revisionist mantra will forever hereafter be repeated as if it represented an accurate statement of Article VI.
(Note, by the way, that the 2010 document refers strangely to "the total elimination of their [NWS] nuclear arsenals leading to nuclear disarmament." Was this sequencing meant to suggest that disarming the NPT-recognized NWS must come before others can be expected fully to disarm? Or was intelligibility simply too much to ask in the RevCon's rush to take strong positions on disarmament?)
The 2000 Final Document is also remembered for its articulation of "13 practical steps" that it recommends in order to advance disarmament. Given the fact that that in the ensuing decade several of the "steps" have become irrelevant – e.g., ratification of START II, negotiation of START III, and adherence to the ABM Treaty – one might have expected the 2010 outcome document to take the "13 steps" more as a source of inspiration than a concrete disarmament program that must be followed to the letter by the NWS. Paragraph 5 of the 2010 document, however, reaffirms parties' ostensible commitment to all the commitments undertaken in the 2000 document – a point that the new document's Recommendations I(A)(iii) and I(B)(i) also underscore by stressing that the "13 steps" have a "continuing validity" and must be implemented on an "urgent" basis. (The document's Action 5 calls for the NWS to "accelerate concrete progress" on the disarmament agenda, while Action 20 calls for the submission of regular reports on how well countries are doing.)
The unreality here is palpable: the key to disarmament "credibility" still seems to lie in NWS compliance with a disarmament program that even its strongest proponents privately admit is anachronistic. Whatever the merits of the "13 steps" at their time of drafting in 2000, they are a bizarre standard to impose upon the world of 2010. Last week's agreement, however, embraces them with gusto.
The treatment of other disarmament matters in the 2010 document is generally unsurprising, and for the most part interesting only in a kind of "inside baseball" way to specialist observers. (Paragraph 103, for instance, takes an interestingly nuanced position on the Central Asian Nuclear Weapons Free Zone, which has been controversial because it has been carefully structured in order to make it possible for Russia to deploy nuclear weapons in the region pursuant to pre-existing collective security arrangements, and therefore amounts to more of a nuclear weapons monopolization treaty than a real "nuclear weapons free zone." The 2010 document praises the idea of a Central Asian NWFZ without actually endorsing this particular treaty. It urges parties to work "to resolve any outstanding issues regarding [the] functioning of" the current instrument.) The bottom line is clear: the 2010 document emphasizes NWS disarmament arguably to the point of unreason, such as by repeatedly misrepresenting the text of Article VI and insisting upon a "13 steps"-based work plan notwithstanding the incoherence of demanding adherence to what are now defunct and/or superseded treaties.
So did the Obama Administration at least get real movement on nonproliferation issues in return for all this? Apparently not.
Let's remember the bar the Obama Administration set for itself. In her remarks to the Review Conference, Secretary of State Hillary Clinton set forth the nonproliferation steps to which she hoped delegations would agree – in effect, in return for America's ostentatious new commitment to disarmament. Outlining the measures the Obama Administration was taking in pursuant of the President's oft-proclaimed vision of a world without nuclear weapons, Clinton asked other governments to "recommit" themselves to nonproliferation. (For a discussion of other delegations reactions, as expressed in their national statements, see NPF's previous posting.) Among other things, she urged delegations to "consider automatic penalties for the violation of safeguards agreements such as suspending all international nuclear cooperation or IAEA technical cooperation projects," "tightening controls on transshipment and enhancing restrictions on transfers of sensitive technology," and "dissuad[ing] states from utilizing the treaty's withdrawal provision to avoid accountability." When judged by the standards of such U.S. nonproliferation policy objectives – e.g., tightening controls on sensitive technology, strengthening International Atomic Energy Agency (IAEA) nuclear safeguards, establishing multinational fuel banks to obviate any seeming need for fissile material production capabilities, minimizing the use of highly enriched uranium (HEU) around the world, and deterring Treaty withdrawal by violators – does the 2010 document demonstrate real progress? Or has the Obama Administration's disarmament zeal simply been pocketed in return for essentially nothing?
One major failure of the 2010 RevCon, its inability even to mention the most pressing challenge facing the NPT regime at the moment – Iran's violation of its nuclear safeguards and Treaty obligations and defiance of multiple legally-binding Security Council resolutions – was largely preordained by Iran's very presence at the Conference. Consensus-based institutions in which violators are permitted to participate are inherently unable to address the misdeeds of those same violators, and no one expected too much to be said directly about Iran. The arguable inevitability of this silence, however, should not blind us to just how serious a problem it is for the Review Conference to be structurally unable to say anything serious about the most pressing challenge the Treaty presently faces.
The most that delegates could do in last week's text was to utter vague banalities in Paragraph 21 about how "numerous" parties had expressed "concerns … with respect to matters of non-compliance of [sic] the Treaty," and to call for "those States non-compliant" with it to start following its rules. Naturally, of course, such phrasing could mean almost anything, including agreement with Iran's arguments that the real problem with the NPT today is that the United States is in violation of Article VI for not having disarmed itself. This is apparently the only way the NPT Review Process can address the grave challenge of Iranian noncompliance that threatens to crack the Treaty asunder. The closest the RevCon came to actually admitting that the NPT regime faces an enormous challenge from nonproliferation noncompliance was to call with notable unspecificity, in Action 27, for the resolution of all safeguards noncompliance. (Note also that even this comment referred to noncompliance with IAEA safeguards, rather than with the Treaty itself. To suggest that was apparently too much.)
Notwithstanding the Obama Administration's investment in disarmament "credibility" and hopes of catalyzing nonproliferation cooperation in return, it is worth remembering what an advance this is not when compared to the 2000 Final Document. Then, the parties said essentially the same thing, expressing "concern" with "cases of non-compliance," and unspecifically reaffirming "the fundamental importance of full compliance with the provisions of the Treaty." Since 2000, however, we have seen the revelation (in 2002) of Iran's secret nuclear program, North Korea's withdrawal from the NPT (in 2003), the exposure of A.Q. Khan's nuclear smuggling network (in 2004), public revelation of Libya's nuclear weapons effort (in 2004), eight years of Iranian defiance of nonproliferation requirements, and two nuclear tests by North Korea (in 2006 and 2009). Under the circumstances of 2010, merely to repeat the dull platitudes of the 2000 Final Document is therefore something of a scandal all in itself.
To be sure, the 2010 document does speak out against North Korea's nuclear tests – Pyongyang's representatives at least having the good grace not to attend and veto such language, notwithstanding the fact that some European governments apparently still believe North Korea remains a party to the Treaty. Even here, however, the delegates in 2010 seemed unable to speak particularly clearly or incisively. Paragraph nine condemns the North Korean tests, but adds rather lamely that Pyongyang "cannot have the status of a nuclear-weapon State." (Thus far have we fallen. Rather than do more to oppose North Korea's development of nuclear weapons, we are reduced to proclaiming indignantly that we refuse to call it a nuclear weapons state or admit it to the NPT under such terms.) In Paragraph 109, the document declares that "the situation" related to North Korea – as opposed, presumably, to saying this about the North Korean regime itself, which would be bad manners – is "a threat to peace and security." The 2010 document calls for North Korea to abandon nuclear weapons, but even here cannot clearly single out Pyongyang for its egregious violations prior to withdrawal: instead, the text calls for "all States parties" [sic] to "fully implement all relevant nuclear non-proliferation and disarmament obligations." All states indeed.
Nor does there appear to have been any particular improvement over the aging 2000 text with respect to strengthening safeguards. Given the high policy priority placed by the United States upon achieving universality of the IAEA Additional Protocol (AP) – a safeguards standard designed at least partly to remedy the demonstrable weakness of regular Comprehensive Safeguards Agreements (CSAs) in detecting undeclared nuclear activities – one might have expected a nonproliferation "payoff" to come in this area. One would, however, be disappointed.
If anything, Paragraph 18 of the 2010 document undermines the push for AP universality by describing CSAs as themselves having some utility in detecting undeclared nuclear activities. Since the whole point of APs is that CSAs are manifestly unequal to this task, and since the strongest diplomatic case for AP universality revolves around the AP's indispensability in this regard, this argument in Paragraph 18 is worryingly subversive – no doubt deliberately so. To be sure, there is a bland declaration that "implementation of measures specified in the Additional Protocol" helps build confidence regarding the absence of undeclared activities, but the 2010 document also takes pains to point out that Protocol adherence is not required even though "numerous" states have suggested that it should be made the new safeguards standard. A similar point is made in Paragraph 25, which merely notes that "many" states believe the AP to be a basis for credible assurances of Treaty compliance. The document is happy to call, in Paragraph 115, for AP adherence by non-parties to the Treaty, but delegations proved remarkably reticent when it came to urging such restrictions upon parties. The best that the 2010 document can muster in this respect is Paragraph 19's comment that the AP represents a "significant confidence building measure" and that paragraph's encouragement of countries to adopt it. (Similarly, the document's "Action 28" also encourages APs.)
This language of AP encouragement is weak, but not nothing. On the other hand, it represents no improvement over the text of the 2000 Final Document. There, the Conference "fully endorse[d] the measures contained in the Model Additional Protocol," encouraged all parties to conclude and implement APs as soon as possible, urged the IAEA to work to strengthen safeguards "as broadly as possible," and recommended that the IAEA promote APs around the world. The 2000 document also noted that more and more Protocol adherence would strengthen safeguards and support the Treaty. If anything, therefore, the 2000 language is stronger than what was agreed last week. (Some improvement in return for all our newfound disarmament "credibility.")
Nor does the 2010 document make much progress with regard to controlling the spread of proliferation-sensitive nuclear technology. Paragraph 32 emphasizes that countries' right to nuclear technology for peaceful uses is "one of the fundamental objectives of the Treaty." (Never mind the awkward phrasing about the right itself being an objective. This is bad English, but the point is clear enough: the document wants to emphasize a central point of the modern NPT "three pillars" ideology, namely that spreading nuclear technology is just as important as preventing the spread of nuclear weapons.) It also calls upon everyone to respect countries' "choices and decisions" in peaceful use – which is apparently another way of saying that we should not complain if someone pursues proliferation-risky technologies, even where this is economically unnecessary or even irrational. (The document's Action 47 also echoes this theme.)
Lest anyone harbor any residual sympathies for nuclear export controls, Paragraph 33 and Action 39 of the 2010 document both call for eliminating "undue constraints" on nuclear technology transfers. Indeed, Action 38 refers to what is said to be all countries' legal "right" to "full access" to nuclear material and know-how.
Action 36, in turn, picks up complaints made by the Non-Aligned Movement (NAM) about the purported illegitimacy of national nuclear export controls, complaining about restrictions on technology transfers and encouraging countries to "make use" of "multilaterally negotiated and agreed" standards if they have such export controls. (This was the drafters' tip of the hat to NAM arguments that countries should impose restrictions on nuclear technology – if, that is, they must at all – only if and when such terms are set on a lowest-common-denominator basis by consensus-based institutions such as the IAEA Board of Governors. For more on this, see NPF's previous posting.) Action 39 calls for countries to facilitate nuclear technology transfers and also to eliminate undue constraints, with Action 51 calling for the elimination of "undue constraints incompatible with the Treaty."
Some idea of how hostile the general RevCon climate apparently was to proliferation-risk-based restraint in technology transfers can be seen in the fact that, far from encouraging nuclear exporters to consider whether or not a country has an Additional Protocol in place – a policy priority for the United States and many other Western nations – the document's Action 37 simply urges consideration of whether any safeguards are in place at all. (If one has a basic CSA, it would appear, that's all that's needed. Never mind being unable to detect undeclared activities.) Similarly, while Action 51 concedes that nuclear technology transfers should comport with Articles I, II, III, and IV of the NPT, it does not refer to the existence of any qualifications on recipients' alleged "right" to "full access." Perhaps the NAM considered it a concession to express the idea that any restrictions on technology transfers were legitimate at all (i.e., not "undue"), but this is thin gruel in light of Secretary Clinton's call for "tightening controls on transshipment and enhancing restrictions on transfers of sensitive technology."
This decidedly wobbly treatment of proliferation-sensitive technology transfer contrasts unfavorably with the 2000 Final Document. The 2000 text uses some of the same phrasings about respecting "choices and decisions" in the use of nuclear technology, and it also referred to a purported right to "full access" to nuclear technology (albeit only once). Nevertheless, one must also remember that the 2000 Final Document was drafted four years before the A.Q. Khan network was revealed to the world, making painfully clear the degree to which bomb-usable fissile material production capabilities were in fact within reach of many more countries around the world than had previously been understood. In 2000, the proliferation of proliferation-sensitive fissile material production was a hypothetical; today it is a dangerous and unfolding reality. To judge by the 2010 document, however, we apparently learned nothing over the last decade.
Nor is it merely that last week's text says nothing beyond the 2000 document: it is actually worse. The 2000 text at one point actually went so far as to describe countries as having a right to peaceful uses of nuclear energy only "in conformity with Articles I, II, and III of the Treaty." This qualification on peaceful use rights – which articulates a view more rigorous than that articulated in Article IV itself – has now been dropped, making the 2010 document more congenial to proliferation-risky transfers than the already unimpressive 2000 version. This is apparently the Obama Administration's nonproliferation payoff.
The 2010 RevCon was apparently also unable to agree on the importance of multilateral fuel banks, another priority for the United States, many Western governments, and the IAEA itself. Rather than saying anything favorable about the idea, Paragraphs 57 and 58 merely "note" that such an issue exists. These passages, along with Action 58, simply call for more discussions on the subject. (Some endorsement.) HEU minimization is welcomed in Paragraph 67, but only on a "voluntary" basis, which apparently means that one is perfectly free to continue to use HEU whenever one wants – as indeed Iran does, having now begun to enrich to HEU levels after having received the Obama Administration's endorsement last October of its alleged "need" for highly enriched fuel for a research reactor. In a further snub of U.S. nonproliferation priorities, the Obama Administration's cherished Nuclear Security Summit – a convocation called with huge fanfare in order to help address what the recent U.S. Nuclear Posture Review called "today's most immediate and urgent threat" – is not even "welcomed" in the 2010 outcome document. It is merely "noted."
Elsewhere, Paragraph 76 of the 2010 text decries the danger of attacks on "peaceful" nuclear activities – by whom could they possibly mean? – noting that "many" countries support the establishment a new legal instrument on this subject. Paragraph 20 also bows to Iranian complaints about leaks of information about its nuclear violations, calling as Tehran had demanded for full observance of IAEA "confidentiality." And Paragraph 118 stakes out a position against any more U.S./India-style nuclear dealings with NPT non-parties, setting forth the principle that no "new" arrangements nuclear transfers to anyone should occur without full-scope safeguards and legally-binding undertakings not to acquire nuclear explosives. (The comment about "new" arrangements, of course, is designed to permit China to continue with its existing plan to sell nuclear reactors to Pakistan outside the system of Nuclear Suppliers Group [NSG] safeguards. Don't expect many people to protest this as they did the U.S.-deal with India, however, even though that deal actually obtained NSG permission.)
Finally, on the issue of Treaty withdrawal – an issue specifically flagged by Secretary Clinton as one on which the United States wanted to make progress – the 2010 document in effect simply recounts delegations agreeing to disagree. Paragraphs 120-22 recount little more than that States Party have "divergent views" on this subject. It may have been a priority for the Americans (in Clinton's words) to "dissuade states from utilizing the treaty's withdrawal provision to avoid accountability," but all the Americans could get into the 2010 text was a vague comment that supplier states were not prohibited from "consider[ing]" inserting return or dismantlement clauses in their supply contracts, which would become operative in the event of the recipient's withdrawal from the NPT. Thus far have we not come since North Korea established a precedent for Treaty withdrawal way back in 2003.
III. "The Middle East"
A final word is in order about the issue of the Middle East, for it was on this rock that the 2010 RevCon nearly broke apart in the final days of May. As NPF readers will recall, the Egyptians have been leading an Arab charge to press for concrete measures in the implementation of the 1995 Resolution on the Middle East – which calls for eliminating all weapons of mass destruction (WMD) and associated delivery systems in the region. Anyway, in the final compromise, it seems to have been the Americans who blinked first.
In its Recommendation IV(1), the 2010 outcome document casts the 1995 Resolution on the Middle East as having been "an essential element of the outcome" of the decision that year to extend the NPT indefinitely. This is an unsubtle code for the point that Arab governments have been making for years – and, perhaps not coincidentally, with special vigor since the revelation in 2002 of Iran's secret nuclear program – pursuant to which a "lack of progress" in eliminating Israel's nuclear program is carefully pre-positioned as a usable excuse for abandoning the NPT at some point in the future, while yet being able to point the finger of blame at Israel's allies for betraying the Treaty-extension "bargain."
As if this implicit threat were not already clear enough, the 2010 document adds that "a majority" of parties feel that the lack of progress in implementing the Middle East Resolution "seriously undermines the Treaty and represents a threat to regional and international peace and security." This phrasing is particularly incendiary, insofar as the existence of a "threat to peace" is the factual predicate traditionally necessary for armed intervention under Chapter VII of the U.N. Charter to "restore international peace and security." Article 51 of the Charter also speaks of countries' right of self-defense in the face of such threats, at least until the Security Council has taken the measures necessary to restore international peace and security. To describe Israel's non-denuclearization as a threat to international peace and security, therefore, is to hint at the need for someone to stand up to the Israelis – and by force if necessary. Iran was no doubt delighted that the Obama Administration agreed to this phrasing, but anyone serious about regional stability in the Middle East, reining in Iran's nuclear ambitions, or the cause of nonproliferation more generally should be less pleased.
(In recommendation IV(2), by the way, the text describes the 1995 Resolution, neglecting to mention "delivery systems." In their haste to make the 1995 Resolution an anti-Israeli document, commentators and diplomats frequently neglect to mention its specification of delivery systems and non-nuclear forms of WMD – forms of weaponry which some Arab governments possess, and with which they threaten Israel. Unfortunately, the drafters of the 2010 document were not much less careless. One should perhaps be thankful that they at least did not also forget to say "weapons of mass destruction" rather than just "nuclear weapons.")
Anyway, in its Paragraph 115, the 2010 document calls for Israel, India, and Pakistan to join the NPT. In Recommendation IV(5), it also singles out Israel, noting in particular "the importance of Israel's accession to the Treaty and placement of all its nuclear facilities under comprehensive IAEA safeguards." Recommendation IV(7) calls for the convening of a special conference in 2012 on implementation of the 1995 Resolution, also endorsing the idea of having the U.N. Secretary-General appoint a special "Facilitator."
Christopher A. Ford was formerly Senior Fellow and Director of the Center for Technology and Global Security at Hudson Institute.
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