12 May 2009, No. 7

Finding the balance
Ray Acheson | Reaching Critical Will

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Monday saw the conclusion of statements on Cluster Three, peaceful uses of nuclear energy, and on “other provisions of the Treaty, including Article X.” Article X contains provisions for withdrawing from the NPT, requiring states to give notice to other NPT parties and to the UN Security Council three months in advance.

Delegations expressed diverging views on both subjects. The crux of both is finding a balance between respecting the rights and obligations of states parties. Amid all the attention given to a few recent, isolated compliance cases, many delegations have emphasized the need to adopt measures to ensure or reinforce obligations over rights.

With nuclear energy, most states firmly reminded the Committee that the non-nuclear weapon states are already obligated to place their nuclear facilities under IAEA safeguards and argued that they should not be expected to take on additional obligations, such as ratifying the Additional Protocol—especially since nuclear weapon states are not obligated to have their facilities under any safeguards.

However, in the debate between rights and obligations, needs sometimes seem forgotten. For example, additional verification authority (especially that provided by the Additional Protocol) will be a necessary condition for achieving and ensuring compliance with a nuclear weapon free world. This is a view that is compatible with the approach taken by the International Panel on Fissile Materials, which recommends that all states parties to a prospective fissile materials treaty adhere to the Additional Protocol as the verification standard. Thus, the Additional Protocol may be ultimately seen as a necessary disarmament measure.

Some states have expressed concern that the so-called “nuclear renaissance” will lead to increased probabilities of proliferation of “sensitive” technologies to “irresponsible” actors, and thus the fuel cycle and related technologies and materials need to be placed under stricter controls. However, the Egyptian delegation questioned the rhetoric of “responsible” versus “irresponsible” nuclear technology or states, asking, if “emerging nuclear programs should only give birth to proliferation-resistant reactors without front or back ends [of the fuel cycle], would not those States who continue to run front and back-ended heavy water reactors be, by definition, irresponsible? Or must we consider that what is irresponsible for some is responsible for another?”

A similar debate, between those concerned with the potential consequences of withdrawal from the Treaty and those concerned with restrictions of states rights as spelled out in international law, occurred during discussion of Article X. While some states wish to clarify the requirements for withdrawal, others warn that any added conditions to the process of withdrawal could potentially undermine international law by contravening the 1969 Vienna Convention on the Law of Treaties.

Further, several delegations seem to equate withdrawal from the Treaty with a threat to international peace and security under any circumstance. Some of these delegations also support measures intended to make withdrawal from the Treaty more costly in general, regardless of whether the withdrawing state has actually violated any of its obligations. These views are often coupled with a call for an immediate convening of the UN Security Council.

While it would be a worthwhile pursuit to adopt some common understandings or measures in order to respond to withdrawal from the Treaty by states that have committed material breaches of their obligations, it is also important to ensure there are appropriate mechanisms for establishing the context and conditions of the withdrawal.

It would also be beneficial to explore incentives to encourage states parties to remain party to the Treaty, through a general strengthening of the Treaty’s existing provisions and fulfillment of its past commitments. For example, the Norwegian delegation suggested reaffirming the Treaty’s viability through a “forward-looking outcome of the 2010 Review Conference;” enhancing nuclear cooperation and IAEA capacity; codifying security assurances within the NPT context; and further strengthening the review cycle.

The attempt to balance rights and obligations under the NPT will undoubtedly continue to be a focus of debate at the Review Conference, but a careful consideration of what will lead to the strongest disarmament regime possible offers the best guide forward.

Michael Spies contributed analysis to this article

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