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Avoiding a Perfect Storm: Recharting the NPT Review Process
Forty years after the signing of the nuclear Nonproliferation Treaty (NPT), cracks are growing in the cornerstone of the nuclear nonproliferation regime. This grand bargain among nuclear-weapon and non-nuclear-weapon states has in recent years been hamstrung by deep divisions among its members over past and future implementation of all its provisions. These divisions have exposed the treaty’s weaknesses, including its inadequate and lopsided enforcement mechanism, opportunities for abuse of the inalienable right to nuclear energy for peaceful purposes, and its lack of universality.
When the states-parties agreed in 1995 to extend the life of the treaty indefinitely, they did so as part of an integral package of decisions and one resolution.[1] This package, anchored to a legal requirement in the treaty,[2] represents a threshold in the treaty’s history and as such changed the way in which the treaty’s implementation was reviewed. The accord’s continued existence was linked to a set of “political conditions”—the Principles and Objectives for Nuclear Nonproliferation and Nuclear Disarmament [3]—and a new process to review the treaty’s effective implementation. Together, these decisions and the Middle East resolution, which endorsed the creation of a zone free of nuclear weapons as well as other weapons of mass destruction convinced many states, in particular those from the Nonaligned Movement (NAM)[4], to support the indefinite extension decision and to barter away the possibility that they could use the prospect of holding up future extensions as a bargaining chip. Because this unspoken bargain represented the achievement of “permanence with accountability,”[5] it continues to be widely regarded as the way for non-nuclear-weapon-states to maintain some pressure on nuclear-weapon states to stick to their part of the NPT grand bargain.
Five years later, the 2000 NPT Review Conference successfully adopted a fully negotiated outcome document, which not only solidified the controversial 1995 decision to remove the leverage built into the treaty by extending it indefinitely but further defined the nuclear disarmament program of action provided for in the 1995 Principles and Objective decision and, by implication, NPT Article VI (on nuclear disarmament). To this end, states-parties agreed to pursue “13 practical steps”[6] toward nuclear disarmament that include an “unequivocal undertaking” by the nuclear-weapon-states to eliminate their nuclear arsenals.
Since the milestone 2000 review conference, the achievement of the treaty’s objectives and those agreed to at previous review conferences have been impeded by a number of political, economic, and regional security obstacles, some of which are internal to the NPT, while others largely relate to external threats. Thus, convergence among the lack of political determination among its parties to bridge deep differences, negative tactics employed by some to emphasize certain aspects of the treaty while ignoring others, and a review process that allows delegations simply to talk to each other instead of negotiating agreeable solutions, provided the near perfect storm in which the 2005 review conference was doomed to sink.
Regrettably, the indicators of another looming disaster are already appearing on the horizon, and this one could prove even more damaging to the treaty regime. Another failed review conference will erode confidence in the treaty’s validity, further energizing theories by some analysts that states will break out of the regime and potentially acquire nuclear weapons. States-parties thus have a daunting responsibility to ensure that the 2010 review conference successfully discharges its mandate by strengthening the treaty’s implementation and setting realistic and achievable goals for the future.
As if the challenges on how to bridge the deep divisions among states are not difficult enough, the state-parties are faced with an equally complicated conundrum: how to promote success in 2010 within the straitjacket of the current treaty review process. The so-called enhanced strengthened review process adopted at the 2000 review conference effectively delays useful negotiations on substantive issues until the final preparatory session, further diminishing the chances for success in 2010.
The possibility of avoiding another shipwreck still exists. Doing so will require next year’s preparatory session and the 2010 review conference to return to a course that allowed for successful review conferences in 1995 and 2000.
Successful review conferences and international negotiations obviously require more than good processes. Indeed, at a time that the NPT is facing so many challenges, it may seem besides the point to fine-tune the treaty’s procedural machinery. Yet, the history and practice of international negotiations have proven that the process and environment in which negotiations occur are of critical importance for successfully negotiated outcomes. Equally important are the way in which decisions on a negotiated outcome are taken and how outcomes are defined.
Lessons From the 1995 and 2000 Review Conferences
Historically, the approach both to process and decision-making vis-à-vis the NPT has been a rather inconsistent one. At the 1995 NPT Review and Extension Conference, the states-parties decided to institutionalize and strengthen the treaty’s built-in review process [7] by mandating that annual preparatory committee (PrepCom) meetings[8] be held to consider substantive issues related to treaty implementation, agree on procedural preparations for the review conference, and make recommendations to the conference toward this end. Just as importantly, this strengthened review process was tied to a series of benchmarks that helped make the indefinite extension of the treaty possible.
Because fruitful negotiations were not considered possible at the review conferences due to time constraints and the level of acrimonious exchanges, the preparatory process designed in 1995 provided a mechanism that allowed for negotiations to take place during the PrepCom sessions, designed as mini-review conferences. The drafters of this process intended for each PrepCom to work on the basis of a “rolling text” developed in previous session(s). In addition, the 1995 Principles and Objectives document provided for the first time a set of benchmarks to gauge the implementation of the treaty and established a forward-looking agenda, including a clearly defined program of action on nuclear disarmament.
The fruits of this effort were evident at the 2000 review conference—the only such gathering to produce a fully negotiated, comprehensive consensus final document.[9] To be sure, there were some hiccups in the process. States-parties struggled to make substantive recommendations at the PrepCom sessions, and a dispute over the
Despite the relative success of the 2000 review conference, however, the conference president, Algerian Ambassador Abdallah Baali, concluded that it had failed because of its tendency to be sidetracked over specific issues. He introduced an “improved” review process, which constituted a significant shift in how business has since been conducted in preparing for review conferences and may have impaired their chances for success. Since 2000, the first two PrepCom sessions no longer operate in “negotiation mode” but instead only discuss principles, objectives, and ways in order to promote the full implementation of the treaty, as well as its universality.[10] In practice, therefore, states-parties can wait until the third preparatory session, held only a year before a review conference, to start negotiating consensus recommendations to the conference. It was also determined that each PrepCom session should summarize its results and forward this summary to the next session for further discussion, but no clear guidance was provided on how and by whom the summaries should be prepared.
Why Did the 2005 Conference Sink?
It is not the intent of this article to dwell on the reasons why the 2005 review conference failed, but the conference was a victim of the wide gap in state priorities on how to deal with the many serious threats facing the treaty in a 21st-century security environment. It should also be recognized that the conference was set up to fail following the deadlock that emerged at the 2004 PrepCom over the conference agenda and disagreements over the chairman’s summary.
Still another less noticeable factor may have contributed equally to the conference’s downfall: the 2000 changes to the review process that favored those who lacked political commitment to the treaty’s goals, used negative tactics, or negotiated in bad faith. For instance, France argued that the outcome of each review conference stands on its own and continued to dispute the agreement at the 2000 conference that delinked the “unequivocal undertaking” by nuclear-weapon states to eliminate their nuclear arsenals from the notion in Article VI that nuclear disarmament is conditional on “general and complete disarmament.” The
Although the 2002 and 2003 PrepCom sessions were able to deliver smooth outcomes in light of their mandate not to negotiate but only discuss issues, this only stored up problems for the 2004 session. This session had to identify and reach agreement on substantive recommendations to the review conference as well as address relevant procedural issues, including the establishment of an agenda. This proved to be a tall order given the political environment in which the meeting was held, and the fact that the gathering lasted less than 10 days. The 2004 PrepCom session inevitably failed to make any recommendations, which had a direct impact on the failed outcome of the 2005 review conference.
Is Another Perfect Storm Brewing?
Some diplomats and analysts want to believe that although the review cycle for the 2010 conference got off to a bumpy start, it is back on track and that prospects are not as gloomy as they seem. An honest reflection of what transpired at the 2007 and 2008 PrepCom sessions and the prospects for 2009, however, shows a different picture.
After more than a week’s bickering over the agenda, the 2007 PrepCom session almost did not adopt a report, given the negative tactics by
To be sure, the PrepCom will be remembered for some positive developments. Although the 2008 summary by the chairman, Ambassador Volodymyr Yelchenko of
Next year, the review cycle will be at the same stage as the 2004 PrepCom session, and the cracks in the improved review process are again showing. In fact, they may be getting worse. Compared to 2004, the 2009 PrepCom will not have the luxury of having factual summaries attached to the official reports on its previous sessions, but mere working papers. The 2009 PrepCom will therefore have little substantive material with which to work and, given the political climate, is likely to face the same fate as the 2004 PrepCom session. Before that happens, the states-parties should reflect on their inabilities to reach out and resolve deep differences and find ways to fix the review process.
To achieve success, states should recognize that the value of review conferences does not depend only on the ability of states-parties to adopt a final document by consensus. Instead of trying to reach agreement over carefully crafted, but often meaningless diplomatic wording in a final declaration, a successful review conference should be measured against the ability of the states-parties to cooperate in pursuit of common and agreed objectives to strengthen the future implementation of the treaty. In this regard, important lessons can be drawn from the 1995, 2000, and 2005 conferences.
Reconstructing the Review Process
Just as the 1995 and 2000 conferences set benchmarks to gauge the treaty’s implementation, such as the 1995 Principles and Objectives, and established a forward-looking agenda (e.g., the 13 practical steps in 2000), each review conference should designate specific topics for consideration at succeeding PrepCom sessions. These topics should be anchored to a set of forward-looking nuclear nonproliferation and nuclear disarmament objectives (see below) and should allow for the inclusion of urgent issues such as withdrawal if called for by states-parties. Annual states-parties meetings of approximately two weeks each should be held to promote common understandings and effective action on specific issues designated by the preceding review conference. Each state-party meeting should culminate in a short two- or three-day preparatory committee session aimed at taking specific substantive and procedural decisions related to the review conference. A way to reflect the work of the PrepCom that may avoid a deadlock at the end of the preparatory process would be for each PrepCom chair to prepare a compendium of all substantive proposals made during a particular session, to be attached to a brief chairman’s summary and passed on to the following session(s). This “rolling compendium,” together with early and continuing coordination among the PrepCom chairs, and if possible the presumed president of the review conference, could provide the basis for a successful outcome of the conference. The review conference will consider the work of the states-parties meetings and the PrepCom sessions and decide on any further action.
A similar process following the ill-fated attempt by the Biological Weapons Convention (BWC) ad hoc group to negotiate a legally binding BWC verification system led to significant progress in that treaty’s implementation. The 2001 decision by the BWC states-parties included an element that is not apparent in the NPT process, namely the means to undertake substantive consideration of what can be done to achieve further progress in the future and to strengthen the treaty’s implementation. The inclusion of such an element in the NPT process would be consistent with the decision that was taken at the 1995 NPT Review and Extension Conference.
Streamline Decision-Making
Because review conferences are tasked to review the treaty’s implementation over the preceding five years and to take decisions on ways to strengthen the treaty, the strengthened review process should facilitate and not pre-emptively force agreements on the most critical issues. Moreover, because the need for consensus decisions at review conference are not anchored anywhere in the treaty, the practice of seeking consensus agreement on all issues should be reconsidered. The lack of agreement over one issue has led to the downfall or near downfall of past review conferences. For instance, despite having reached a milestone agreement on nuclear disarmament (the 13 practical steps), the 2000 review conference almost collapsed during its final days given
To avoid yet another divisive debate over past implementation of the treaty’s obligations, the review conferences, starting with the 2010 conference, should avoid seeking consensus agreement on the “review” part of its outcome. Although important to consider in depth the implementation of all the treaty’s obligations and address concerns over noncompliance, it is highly unlikely for any state to incriminate itself by agreeing to negative language about its treaty obligations. Instead of a consensus review document, the conference could issue a separate document, drafted in the style of the 1985 Final Document, reflecting in a balanced manner the discussions and concerns about the treaty’s implementation status. Admittedly, given the current political environment, opposition to this approach is likely to come from many states worried that documents that put them under pressure are agreed on while documents that put others under pressure are not or receive the watered-down (I said, he said) approach. Whatever the approach, it would be important to separate the review part of future conference outcomes from more forward-looking parts.
Nuclear Nonproliferation and Nuclear Disarmament Objectives
Building on and in no way diminishing the significance or continued applicability of the 1995 Principles and Objectives document and the 2000 Final Document, including the 13 steps for nuclear disarmament, a set of additional objectives should be developed around a balanced plan of action for consideration and adoption at the 2010 conference. As opposed to seeking consensus, in what is likely to be a highly divisive atmosphere, on how to reflect the treaty’s past implementation, the 2010 review conference should pursue agreement on a set of forward-looking nuclear nonproliferation and nuclear disarmament objectives that recognizes the outcomes of the 1995 and 2000 conferences and that take into account the changes in the geopolitical and international security environment. Such a set of updated objectives could serve as a lodestar to regain confidence in the treaty’s core bargains, as the 1995 Principles and Objectives were designed to do. As such, these objectives could include the following elements:
1. Universal application of nonproliferation and disarmament principles, including ways to engage the outlier states without rewarding them for behavior contrary to the NPT norm.
2. Means to strengthen disincentives against NPT breakouts.
3. Methods for strengthening existing nonproliferation obligations, including strengthening comprehensive safeguards (applied with the 1997 Model Additional Protocol), application of such safeguards as a condition of supply, and suspending nuclear cooperation with states found by the International Atomic Energy Agency Board of Governors to be in noncompliance with their safeguard agreements until such violations have been redressed.
4. Renewed commitment to the peaceful use of nuclear energy in which states developing advanced capabilities are obligated to also accept a responsibility to take additional measures to assure the international community of their bona fides and in which particular importance is attached to development of multinational fuel-cycle facilities and assurances of nuclear fuel supply.
5. Practical and achievable nuclear disarmament goals, including a renewed commitment by all states, including non-nuclear-weapon states that have not yet done so, to ratify and fully support the Comprehensive Test Ban Treaty (CTBT); starting or supporting negotiations on a verifiable fissile material ban treaty that take into account both nuclear nonproliferation and nuclear disarmament objectives; an agreement among nuclear-weapon states to take their operational arsenals off of “hair-trigger alert” and a commitment not to research, develop, or deploy types of nuclear warheads fundamentally different from those present in their possession; the withdrawal of U.S. tactical weapons from NATO non-nuclear-weapon states; and agreement between Russia and the United States to withdraw this type of nuclear weapon to central storage on national territory for eventual elimination.
6. Means to counter nuclear terrorism, including the full implementation of UN Security Council Resolution 1540, ratification of the amendment to the Convention on the Physical Protection of Nuclear Material, and minimization of use of highly enriched uranium and plutonium in the civilian nuclear sector.
7. Regional nonproliferation and disarmament approaches, including means to implement fully the 1995 resolution on the
8. Security assurances, including through an unequivocal commitment, preferably in the context of the Security Council, by all states with nuclear weapons to no-first-use policies, as well as the establishment of new mechanisms designed to promote legally binding negative security assurances to NPT states-parties in full compliance with their nonproliferation obligations.
9. Accountability of all states-parties to their treaty obligations by means of a robust reporting system.
10. Greater reliance on education, training, and engagement of civil society in the process of strengthening the NPT norm.
Finally, the pursuit of a new deal would not be possible without strong and unambiguous determination on the part of all states-parties. Although some would argue that a new deal, such as the one described in this article, is beyond the realm of the possible or even desirable, the states-parties no longer have the luxury to continue doing business as usual. The warning alarms of another perfect storm have already sounded. It is time for the states-parties and those who play a leading role in the treaty’s review process to wake up, take a firm grip on the helm, and steer the NPT toward calmer seas. The states-parties should urgently replace their business-as-usual approach, based on methods that have failed, with a new, balanced, and forward-looking deal. Whatever the approach in pursuit of such a new deal, it would be of critical importance for all states not to approach individual elements singularly. Any desire to address only one aspect, whether nuclear nonproliferation, nuclear disarmament, or peaceful uses of nuclear energy, is a recipe for another perfect storm and should be avoided at all cost.
Jean du Preez is professor for nonproliferation studies at the Monterey Institute of International Studies and director of the Nuclear Nonproliferation Project at the
ENDNOTES
1. The 1995 NPT Review and Extension Conference adopted without a vote a package of three decisions, comprising Decision 1 entitled “Strengthening the Review Process for the Treaty,” Decision 2 entitled “Principles and Objectives for Nuclear Non-proliferation and Disarmament,” and Decision 3 entitled “Extension of the Treaty on the Non-Proliferation of Nuclear Weapons.” The conference decided thereby “that, as a majority exists among States party to the Treaty for its indefinite extension, in accordance with Article X, Paragraph 2, the Treaty shall continue in force indefinitely.” The conference also adopted a resolution on the
2. Article X(2) of the treaty states that, 25 years after the entry into force of the Treaty, “a conference shall be convened to decide whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty.” This provision provided the states-parties with the potential to terminate the treaty if they felt that it no longer served their national or collective interests.
3. The Principles and Objectives document was adopted as the second decision by the conference and was designed as a set of benchmarks to assess progress in the following areas: universality, nonproliferation, disarmament, nuclear-weapon-free zones, security assurances, safeguards, and the peaceful uses of nuclear energy. As such, it included a nuclear disarmament program of action, including the conclusion of the Comprehensive Test Ban Treaty (CTBT), a fissile materials cutoff treaty, and the “determined pursuit” by the nuclear-weapon states of “systematic and progressive efforts” to reduce nuclear arsenals. It also called for “further steps” to assure non-nuclear-weapon states-parties against the use or threat of use of nuclear weapons. It further clarified that the treaty’s “inalienable right” to peaceful uses of nuclear energy (Article IV) must be applied “in conformity with Articles I, II as well as III of the Treaty.” It also expanded support for the principle that new nuclear “supply arrangements” should require full-scope IAEA safeguards “as a necessary precondition,” i.e., safeguards over all nuclear materials of the importing, non-nuclear-weapon state.
4. The Nonaligned Movement (NAM) was formed during the Cold War as an organization of states that did not seek to align themselves formally with the
5. See Jayantha Dhanapala, Multilateral Diplomacy and the NPT: An Insider’s Account (
6. These practical steps resulted as a consequence of direct negotiations between the nuclear-weapon states and an influential group of non-nuclear-weapon states, the so-called New Agenda Coalition (
7. Article VIII.3 of the NPT mandated that “[f]ive years after the entry into force of this Treaty, a conference of parties to the Treaty shall be held…in order to review the implementation of this Treaty.” In the years though 1995, it became accepted as standard practice that review conferences would be held every five years, although the NPT specified that this was optional.
8. The 1995 conference decided that, beginning in 1997, the PrepCom session should hold, normally for a duration of 10 working days, a meeting in each of the three years prior to the review conference. If necessary, a fourth preparatory meeting may be held in the year of the conference. This decision led to the established practice of holding the first PrepCom session of subsequent review cycles two years after the preceding review conference.
9. Only three review conferences were able to produce final declarations. At the first review conference in 1975, when the treaty only had 91 states-parties as opposed to 188 today, a short final declaration was agreed by consensus, partly as a consequence of the “iron fist” leadership style of the Swedish conference president, Inga Thorsson. The 1985 review conference, under the presidency of Mohamed Shaker of
10. For the 2000 review conference decision on the improved strengthened review process, see 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Vol. I, NPT/CONF.2000/28.