The Treaty on the Non-Proliferation of Nuclear Weapons: Taking Stock after the May 2008 Preparatory Committee Meeting
The States Parties to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) review this agreement every five years, and the next Review Conference (RevCon) will occur in 2010. In May 2008, the Preparatory Committee for the 2010 RevCon held the second of its three preparatory meetings. The May preparatory meeting provides an opportunity to assess the prospects for the 2010 RevCon, which will, in all likelihood, prove a turning point for the NPT. This Insight reviews the NPT, analyzes the issues arising in the preparatory meetings for the 2010 RevCon, and reflects on difficulties of accommodating the changing distribution of global power within the existing NPT framework.
Evolution of the NPT's "Grand Bargain"
The NPT's Three Pillars
The NPT's international legal obligations center on three fundamental issues that shape the treaty's structure and dynamics:
- Each State Party possessing nuclear weapons (NWS) undertook not to transfer to any recipient nuclear weapons or other nuclear explosive devices or control over them, or to participate in the acquisition of nuclear weapons by non-nuclear-weapon States (NPT, Article I). The NWS also agreed to end the nuclear arms race and achieve nuclear disarmament (NPT, Article VI).
- Each non-nuclear weapons State Party (N-NWS) undertook never to pursue such weapons and to place its peaceful nuclear activities under safeguards monitored by the International Atomic Energy Agency (IAEA) (NPT, Article II-III).
- All NPT States Parties agreed that each had the "inalienable right" to exploit "nuclear energy for peaceful purposes without discrimination" (NPT, Article IV.1). As a result, all States Parties are obliged "to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy" (NPT, Article IV.2).
The 1995 RevCon: Extension of the Grand Bargain
At the 1995 RevCon, the States Parties had to decide whether to extend the NPT indefinitely or allow the treaty to expire (NPT, Article X.2). To reach consensus on extending the NPT indefinitely, the States Parties negotiated a package deal, which included:
- The decision to strengthen the five-year review process through meetings of a Preparatory Committee (PrepCom), which would develop recommendations for subsequent RevCons;
- The decision adopting "Principles and Objectives for Nuclear Non-Proliferation and Disarmament," which provided a roadmap for progress on the preventing nuclear proliferation and making progress on nuclear disarmament; and
- A resolution calling upon States in the Middle East to establish a verifiable Middle East zone free of weapons of mass destruction.
The 2000 RevCon: Adoption of 13 Practical Steps to Nuclear Disarmament
The 2000 RevCon confronted the political fallout created by the nuclear tests carried out by India and Pakistan in 1998 and by the proliferation activities of the A. Q. Khan network in Pakistan. The 2000 RevCon adopted, among other things, 13 practical steps for implementing the disarmament obligations in Article VI of the NPT and the 1995 RevCon Decision on Principles and Objectives for Nuclear Non-Proliferation and Disarmament. The 13 practical steps included:
The 2005 RevCon: Failure
The 2005 RevCon occurred in the altered political environment caused by the terrorist attacks against the U.S. on September 11, 2001 and the subsequent counter-terrorism initiatives taken by the U.S. and other nations. The 2005 RevCon faced a host of challenges, including the invasion of Iraq to eliminate Iraqi programs on weapons of mass destruction, increased interest in the U.S. in the use of nuclear weapons in various circumstances, the proposed nuclear deal between the U.S. and India, the withdrawal of the Democratic People's Republic of Korea (DPRK) from the NPT, and the IAEA's discovery of Iran's undeclared nuclear activities. In addition, States Parties sensed that little progress had been made on the nuclear disarmament objectives articulated at the 1995 and 2000 RevCons. On a positive note, Cuba joined the NPT in 2002, and Libya eliminated its nuclear weapons programme in 2004.
After protracted discussions throughout 2002-2005, the 2005 RevCon was consumed by efforts to reach consensus on the agenda. With only the last few days remaining for substantive discussions, the RevCon concluded with a summary report but adopted no program of action.
The 2010 RevCon: Status of Preparations
First Preparatory Meeting, April-May 2007
Echoing the difficulties experienced at the 2005 RevCon, the first meeting of the PrepCom for the 2010 RevCon engaged in a prolonged debate over the agenda. Within the limited time remaining for discussion of substantive issues, the PrepCom focused on three clusters of issues (see below) without consensus being established on these issues. The Chair summarized these substantive discussions, but only after protracted debate did the PrepCom issue this summary as a working paper rather than as part of the final report in order to have the report adopted by consensus.
Second Preparatory Meeting, April-May 2008
In comparison with the lack of progress at the 2005 RevCon and the 2007 PrepCom meeting, the 2008 PrepCom meeting achieved some success. The PrepCom delegates addressed substantively the three NPT pillars in three clusters of issues (see below). However, the PrepCom debates revealed skepticism about the willingness of NWS to disarm, the non-proliferation commitments of certain N-NWS, and the restrictions on the access to nuclear technology for peaceful purposes. This situation presents serious challenges for 2010 RevCon.
The Three Clusters of Issues Addressed in the First and Second PrepCom Meetings
Cluster I: Disarmament and Security Assurances
Cluster I debates focused on NWS' disarmament obligations under Article VI of the NPT and the related issues of security assurances. The PrepCom welcomed disarmament measures taken by France, Russia, the U.K., and the U.S. However, the PrepCom heard concerns that the NWS were modernizing and extending the lifespan of their nuclear arsenals in contravention of Article VI. Delegations also expressed concern that the location of nuclear weapons on the territories of N-NWS under the NATO Strategic Concept and nuclear cooperation with non signatories to the Treaty (such as the U.S.-India deal) may violate Articles I and II of the NPT.
Reflecting the renewed prominence of nuclear weapons in NWS' strategic doctrines and the vulnerability of N-NWS, some delegations called on the NWS to provide unconditional, legally binding security assurances that they will refrain from nuclear attack against an N-NWS.
Some States Parties recalled the NPT's grand bargain and urged NWS to undertake substantive disarmament steps to ameliorate the growing mistrust. In particular, many delegations considered the 13 Practical Steps as the best disarmament roadmap because the Steps include standardized and rigorous reporting on disarmament tasks in accordance with the principles of transparency, verifiability, and irreversibility.
The majority of delegations to the PrepCom emphasized the CTBT's significance to the disarmament agenda. In order to make the current moratorium on nuclear testing permanent, delegations urged the nine remaining States that must ratify the CTBT for it to enter into force--China, DPRK, Egypt, India, Indonesia, Iran, Israel, Pakistan, and the U.S.--to do so. Advancing the CTBT was linked with a call to begin negotiations for a Fissile Materials Cut-Off Treaty to limit the quantity of fissile materials produced and to regulate existing materials.
Cluster II: Safeguards and Middle East Weapons of Mass Destruction Free Zone
Cluster II debates focused on the NPT's second pillar, including the non-proliferation safeguards for civilian nuclear facilities and nuclear weapons free zones (NWFZ). Many States Parties highlighted alleged non-compliance with Article III of the NPT, beginning with condemnation of Iran's nuclear program and its failure to comply with UN Security Council resolutions and IAEA reporting requirements. In response, Iran denied the accusations and stressed its full cooperation with the IAEA.
The challenge posed by the DPRK and, in particular, its declared nuclear test in October 2006, was also discussed, with States Parties urging the DPRK to dismantle its nuclear facilities and provide full details of its nuclear stockpiles. Some States Parties also raised the alleged nuclear collaboration between the DPRK and Syria, revealed in the press before the May 2008 PrepCom meeting, as a violation of the NPT, prompting Syrian denials of wrongdoing.
The May 2008 PrepCom meeting also focused attention on achieving a Middle East NWFZ, which some delegations considered part of the core bargain struck at the 1995 RevCon to extend the NPT indefinitely. To achieve this goal, several States Parties urged Israel to accede to the NPT as a N-NWS and place its nuclear facilities under IAEA safeguards. PrepCom delegates also urged the NWS to advance prospects for peace in the Middle East.
Cluster III: Inalienable Right to Nuclear Energy and NPT Withdrawal
Cluster III debates discussed the inalienable right to nuclear energy (NPT, Article IV) and withdrawal from the NPT (NPT, Article X). To limit proliferation risks as well as the financial, ecological, and health costs of generating nuclear energy, some States Parties have proposed placing the nuclear fuel cycle under multilateral control with supply guarantees to any State that refrains from production of uranium or plutonium. However, many State Parties were reluctant to embrace these proposals because of a perception that the commercial or strategic interests of the NWS motivated the proposals. In addition, some PrepCom delegations expressed concerns about the proposals producing N-NWS dependency on a limited number of nuclear fuel suppliers, as well as the proposed restrictions on their unalienable right to nuclear energy for peaceful purposes.
In light of the controversy triggered by the DPRK's withdrawal from the NPT, States Parties considered strengthening the Article X mechanisms to clarify the withdrawal process. Recognizing that withdrawal may stimulate a domino effect that would be undermine the NTP, many delegations supported creating obligations (1) to remedy any breach that arose prior to withdrawal, and (2) to return any facilities and technologies acquired during NPT membership to the supplier state.
However, these ideas proved divisive concerning what body would determine whether a State Party had violated the NPT, what appropriate emergency measures would be appropriate, when the UN Security Council should be involved, and what pecuniary penalties could be imposed. Importantly, some N-NWS highlighted that a State Party may legally withdraw for its own supreme interests without jeopardizing international peace and security (NPT, Article X.1). Indonesia noted that the India-U.S. nuclear deal arguably demonstrates that the benefits of being a non-party to the NPT are greater than those secured as State Party. Thus, some delegations argued that penalties for withdrawal should not be imposed.
Conclusion: NPT Approaches a Cross Roads at the 2010 RevCon
Although the 2008 PrepCom saw some positive statements and constructive debate, it failed to develop consensus on initiatives that would pave the way for progress at the 2010 RevCon. Illustrating the lack of consensus on the way forward, the U.S. statement that "non-proliferation is unquestionably the core interest served by the NPT" contrasts with the views of many N-NWS that the NWS' failure to disarm threatens the NPT's survival.
Capturing the frustration of some N-NWS, some States Parties questioned the incentives States Parties have to stay in the NPT when non-parties are rewarded for non-participation, are exempt from the regulatory framework, and are free to develop nuclear weapons. Arguably, a growing number of States inside and outside the NPT may start to perceive that the benefits of not being party to the NPT might be greater than continuing to remain within the treaty. At the same time, many other States parties have growing concerns over horizontal proliferation and the pursuit of nuclear weapons under the guise of peaceful nuclear programs.
In this difficult climate, the NPT States Parties will continue preparatory work for the 2010 RevCon. The third and last PrepCom meeting will take place in May 2009, with Zimbabwe in the Chair.
Lisa Tabassi, an ASIL member, is a Legal Officer, and Jacqueline Leahy is a Consultant, in the Provisional Technical Secretariat of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty in Vienna, Austria. The authors respectively participated in the 2007 and 2008 meetings of the Preparatory Committee for the 2010 Review Conference of the NPT. The views expressed are the authors' own and do not represent, and should not be attributed to, any other person or organization.
 All national papers submitted during the Second Session are accessible at http://www.un.org/NPT2010/SecondSession/documents.html. Many of the views of NPT States Parties summarized in this Insight were drawn from unpublished, oral statements made from the floor, in a few cases as a right of reply.
 Id. at Â¶ 6.
 Final Document: 2000 Review Conference, Volume 1, Part I, Â¶Â¶1-13 of Â¶15 of Section "Article VI and Eighth to Twelfth Preambular Paragraphs (pp 14-15 of NPT/CONF.2000/28(Part I), available at http://disarmament.un.org/wmd/npt/nptrevdocuments.html.
 U.S. Department of Defense, 2002 Nuclear Posture Review, pp. 12-13, extracts available at http://www.globalsecurity.org/wmd/library/policy/dod/npr.htm.
 See also F. L. Kirgis, Iran's Resumption of its Nuclear Program, ASIL Insight (22 August 2005), at http://www.asil.org/insights/2005/08/insights050822.html and Addendum (29 September 2005), at http://www.asil.org/insights/2005/09/insights050929.html.
 For example, the conclusion of the CTBT in 1996 and the Treaty on the Nuclear-Weapon-Free Zone in Central Asia represented the only real progress made on the Principles and Objectives for Nuclear Non-Proliferation and Disarmament adopted at the 1995 RevCon and reinforced by the 2000 RevCon.
 Chairman's Working Paper (NPT/CONF.2010/PC.I/WP.78) and Report of the Preparatory Committee on its First Session (NPT/CONF.2010/PC.I/22), both available at http://www.un.org/NPT2010/documents.html.
 As of this writing, the 2008 Final Report and the official Chairman's Summary were not available. They will be available at http://www.un.org/NPT2010/SecondSession/ in July 2008. An unofficial draft copy of the Chairman's Summary as presented to the 2008 PrepCom can be found at http://www.reachingcriticalwill.org/legal/npt/prepcom08/WP/fact-sum.pdf.
 See NATO, The Alliance's Strategic Concept, Apr. 24, 1999, at http://www.nato.int/docu/pr/1999/p99-065e.htm [at para 63]. See also the NGO Presentation to the 2005 NPT Review Conference on NATO nuclear sharing arrangements, at http://www.un.org/events/npt2005/statements/nptngo-Naughton.pdf
 Dr Christopher Ford, Second Session of the Preparatory Committee for the 2010 Review Conference of the NPT, Geneva, May 5, 2008. As of this writing, the official record of this Statement was not available. It will be available in July 2008 at http://www.un.org/NPT2010/SecondSession/statements.html. An unofficial record of this Statement, as presented to the PrepCom on May 5, 2008, is available at http://www.reachingcriticalwill.org/legal/npt/prepcom08/statements.html.