Gaming the Nuclear Non-proliferation Treaty

eu3iranOpen Briefing, 10 October 2014

The tensions surrounding the nuclear negotiations between Iran and the P5+1/EU3+3 continue unabated ahead of the November 2014 deadline, with the eventual outcome inevitably carrying implications for international relations and the future of non-proliferation.

As such, it is worth reviewing the strengths of the existing Nuclear Non-proliferation Treaty (NPT) and its executive arm, the International Atomic Energy Agency (IAEA), as well as the flaws that have attended the pageant of past proliferation crises. Beyond that, in order to strengthen the NPT and the IAEA in the longer run, there are seven areas that the non-proliferation regime needs to take into account.

The NPT’s raison d’être

The NPT seeks to freeze the nuclear status quo and is therefore inherently biased in favour of nuclear-weapon states recognised as having detonated a nuclear device prior to 1 January 1967 – namely the five permanent members of the UN Security Council (UNSC). In order to induce non-nuclear weapon states into accepting this asymmetry of privileges, and to combat proliferation, the United States, the then Soviet Union, China, France and the United Kingdom agreed to share nuclear technology for peaceful civilian purposes and to ultimately strive for disarmament.

Accordingly, the text of the NPT establishes a legal and safeguards framework for the acceptable conduct of nuclear activities, to which all states but four – India, Israel, Pakistan and the fledgling government of South Sudan – have acceded, and from which a fifth – North Korea – has withdrawn. However, the treaty’s central and most glaring weakness remains the absence of a firewall between civilian and military nuclear programmes. In both cases, proliferation concerns present themselves at the uranium enrichment (open cycle) and plutonium separation (closed cycle) stages, during which fissile material for a nuclear weapon may be produced.

The role and limits of the IAEA

As the NPT’s institutional custodian, the IAEA is mandated with verifying the non-diversion of ‘source and special fissionable materials’ for weapons use through a variety of ways, including on-site inspections with the host government’s consent. In the case of signatory states, the optional Additional Protocol intensifies the scope and depth of inspections, incorporating ‘managed access’ for ultra-sensitive cases, and extending them to aspects such as research and development even when devoid of nuclear material, equipment, item imports and exports, uranium mines and long-term nuclear infrastructural plans.

When all is said and done, however, the effectiveness of IAEA oversight is limited to declared facilities, and only allows for verification of the non-diversion, or ‘correctness’, of declared fissile material subject to safeguards. Unfortunately, IAEA inspectors are neither equipped nor qualified to uncover clandestine nuclear programmes, being in this respect wholly dependent on third parties’ initiative and intelligence capabilities. More importantly, IAEA inspectors are unable to verify the absence of undeclared material and facilities, or in other words the ‘completeness’ of all information declared by a member state. In addition, the NPT’s original safeguards focus only on components of the fuel cycle involving processed uranium, though the Additional Protocol now covers the full nuclear process, including mining and ore concentration.

Seven ways to strengthen the NPT and the IAEA

There are two additional and feasible pathways to combating fuel cycle-related proliferation. The first, for non-nuclear weapon states already in possession of enrichment facilities, entails limiting domestic enrichment to 5% for power generation purposes, and requiring that all uranium enriched further up to 19.75% – for medical research and the production of isotopes, which Iran for instance has cited – be acquired exclusively and in controlled quantities through an international nuclear fuel bank under the IAEA’s auspices. The idea of such an institution isn’t new, and the proposed IAEA-Kazakhstan version comes to mind.

The international nuclear fuel bank should guarantee long-term fuel supply and draw up periodic contracts with member states conforming to existing reactor lifespans. In the event of disputes, both contracting parties should be able to maintain in escrow, including on the member state’s territory, an agreed proportion of the higher enriched (5–19.75%) fuelstock quantity guaranteed for the same period. In the event, the case for maintaining enrichment infrastructure as guarantee against supply disruption will no longer be as sustainable.

The second pathway, for any non-nuclear weapon state, is to make available only standardised reactors with guaranteed long-term fuelstock from external suppliers, or alternatively, reactors with fixed built-in ‘nuclear battery’ lifespans of 40-60 years. With the establishment of the international nuclear fuel bank, and in view of the relative stability of market prices for enriched uranium, the categorical prohibition of heavy-water reactors in non-nuclear weapon states might even be justified to preclude the extraction of plutonium (and tritium).

Fuel cycle-related safeguards in the context of the NPT’s Article III can only reach so far, as recent experience suggests. Therefore, an additional clause should be introduced that specifically addresses the weaponisation component of nuclear weapons development henceforth. The IAEA considers ballistic missile technology to be the sovereign right of states, and as such restricts its definition of weaponisation, roughly paraphrased, to the tooling of nuclear explosive devices for the purposes of being fitted for delivery. In investigating inconsistencies in this respect, the IAEA will not require permission to inspect sensitive military complexes. Instead, the state concerned will bear the full onus, under pain of sanction, to furnish satisfactory clarifications on their own within a non-negotiable period of time, say three months.

Given the relative strength of containment and surveillance with the assistance of modern nuclear forensics, satellite imagery and enhanced information analysis, there is an obvious and pressing need to address the deficiencies in the existing structure of enforcement, which inevitably exceeds the direct remit of the NPT and the IAEA. It will be recalled that the NPT as a legal and regulatory edifice is only as sound as the sum of its parts – namely the IAEA’s capacity to supervise, and the UN Security Council’s ability to enforce. IAEA and even UNSC member states are by and large wary of committing themselves in principle to responding to another state’s treaty violations.

Given the gravity of nuclear annihilation and the reality of creeping proliferation, the change that ought to be wrought, and this was first hinted at in the 1946 Baruch Plan, is paradigmatic and counterintuitive: the UNSC permanent members’ veto, for the sole substantive purpose of enforcement, should be subject to override by a three-fifths UNSC majority, or alternatively by two-thirds of the UN General Assembly, with the proviso that enforcement may also be non-military in substance, including ‘excommunication’ from parts of the United Nations. Alternatively, the three-fifths UNSC veto override could be rendered obligatory when at issue is a state transgressor not yet party to the Additional Protocol, the idea being that UNSC permanent members might in this way see the point of persuading their respective allies to sign onto the Additional Protocol. Further, UNSC sanctions must target non-state clandestine proliferation networks or the states wilfully harbouring them.

Finally, states pursuing a nuclear programme ought not only be guided but bounded, in both letter and spirit, by Preamble 3’s injunction that ‘States must refrain…from the threat or use of force against the territorial integrity or political independence of any State…’. A crucial, if tentative first step in this direction is that Article VI of the NPT, the largely anodyne clause calling for disarmament, acquire a more binding and concrete character in the form of the categorical decommissioning of substrategic nuclear arsenals by the parties concerned. The reason is that geopolitical reality has changed since the Cold War and tactical and theatre deterrents in the current circumstances have not proven any more indispensable than their strategic counterparts, but instead remain a costly and militarily-irrelevant liability.

Ultimately, clandestine nuclear programmes are a symptom of mistrust, and not the root thereof. A framework that aspires to promote international peace and security cannot therefore hope to isolate the technical from the human aspects of conflict.

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