Well, I am still sitting on a post on the new NSG guidelines — I remain genuinely conflicted about whether the Administration got enough or should have walked away.
Our debates, public and private, have been entirely about whether the US got enough in terms of restricting supply. Dan Joyner argues that, perhaps, we got too much.
It is not a view I share at all — in fact, I couldn’t disagree more — but the natural contrarian in me thought it was important to put Dan’s carefully argued position into the public debate. Plus, it is a good opportunity to flog Dan’s new book, Interpreting the NPT.
The NSG Has Left the Building – a Lawyers View
Dan Joyner is a professor of law at the University of Alabama Law School.
I had no idea how prophetic I was. For the past three years or so I have been writing a book on interpretation of the NPT. The book was just published last month by Oxford University Press (buy your copy today!)
In the book I consider how the rules of the 1969 Vienna Convention on the Law of Treaties apply to interpretation of the NPT, and what the result of the application of those rules should be. The focus of the book is on interpreting the most controversial provisions of the NPT, i.e. Articles I, II, III, IV & VI, including their interactions with each other, in a holistic way. Now, before you stop reading because you think you smell scented candle in the room, I mean holistic here in the sense that the Vienna Convention on the Law of Treaties means holistic. Not in the way Ravi Shankar means it. What I mean is interpreting provisions of a treaty with reference to their context within the treaty, as well as with reference to the overall object and purpose of the treaty.
So as part of this analysis of treaty interpretation, I looked back systematically at statements made by officials of both NWS and NNWS at NPT meetings (PrepComs and RevCons) since the end of the Cold War, in order to identify trends in legal interpretation of the NPT, and resulting levels of policy prioritization as among the three principled pillars of the NPT.
What I found was that there was a clear trend, beginning in 1998 and reaching fever pitch during the Bush administration, of a disproportionate emphasis and prioritization in NWS official statements upon the non-proliferation pillar of the NPT, and a marginalization of the disarmament and peaceful use pillars. This unbalanced orientation of policy continued at least through 2008, when some aspects of US and other NWS national policies changed significantly, particularly on matters of disarmament.
But going back to the decade-long disproportionate prioritization of nonproliferation over peaceful use and disarmament, I concluded in the book that this skewing of policy to marginalize two of the principled pillars of the NPT was not in harmony with the fundamental object and purpose of the treaty, which was comprised of all three principled pillars equally. I can’t make out the arguments in detail here – it took me a whole book to do it. But this is the summary.
I also concluded that this general policy prioritization, and its specific policy results, were justified by US officials in particular on the basis of erroneous interpretations of NPT provisions. A few of these erroneous interpretations were the following:
1. The non-proliferation pillar of the NPT is the principal, primary, central or core principled pillar of the treaty, and the other two pillars are of secondary or lesser status and weight.
2. The NPT Article IV right to peaceful nuclear cooperation is an unfortunate “loophole” in the treaty; and that right should be legally interpreted as a limited, circumscribed and even conditional right, if a legal right at all. Properly understood, in fact, its more a privilege than a right.
3. Whatever the character of the right in Article IV, its scope certainly does not extend to sensitive fuel cycle technologies, including ENR technologies.
So what were the specific policy results of this general policy prioritization, as justified by these erroneous legal interpretations during the 1998-2008 decade? They included a number of policies and efforts by NWS (sometimes attempting to utilize the functionality of the NSG to coordinate them) aimed at circumscribing and conditioning the right of NNWS to nuclear fuel cycle technologies, and at changing the conditions under which supplies of nuclear technologies are made to NNWS by NWS and other supplier states.
Specifically, these proposals and efforts included:
1. Requiring NNWS accession to the IAEA Additional Protocol as a condition of supply;
2. Conditioning supply and recognition of rights to nuclear technologies on compliance with an IAEA Comprehensive Safeguards Agreement; and
3. Pushing for the exclusive sourcing of nuclear material by NNWS from a multilateral fuel bank or a multinational enrichment center as a condition of supply.
Through rigorous and systematic application of the interpretive principles of the Vienna Convention on the Law of Treaties, I concluded in the book that each of these policies/efforts were actions in unlawful circumscription of the right of NNWS to peaceful nuclear activities in Article IV(1). Each of these efforts were manifestations of non-recognition of the full and proper scope of the inalienable right in Article IV(1), and effected a prevention of trade which should have been allowed between private entities in NWS and NNWS developing states, in exercise of their right to peaceful use of nuclear materials and technologies.
These actions were arguably also in breach of the Article IV(2) obligation upon supplier states, who are therein obligated to “facilitate . . . the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy,” and “cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty.”
So wherefore my lauding of my prophetic soul above? Well, when I first laid eyes on the new NSG guidelines on ENR transfers adopted last week, what I saw was the whole Bush era heritage of disproportionate prioritization of the nonproliferation pillar, marginalization of the peaceful use pillar, erroneous interpretations of the NPT, and specific policies based thereon that I had spent the last three years critiquing and decrying in my book, coming home to roost in the guidelines of the NSG.
As many readers of this blog have, I have been studying the NSG for a long time. I know its history and its original and evolving raison d’etre. The original purpose of the NSG was as an informal grouping of supplier states who wished to flesh out and clarify the rules regarding nuclear exports in Article III of the NPT, and in particular Article III(2). The NSG’s guidelines and trigger list were adopted, and modified over the years, to do just that, and to coordinate national laws and policies on nuclear single and dual use exports in accordance with these standards.
Developing, nuclear recipient states, as represented by the NAM, have objected to the existence and work of the NSG from its beginnings. They have always considered it an illegitimate supplier state cartel, with no mandate from or related to the NPT. They have always argued, and with even greater fervor after the 2002 adoption by the NSG of dual use export guidelines, that the NSG’s guidelines imposed higher and stricter barriers to civilian nuclear trade than the rules of the NPT provided for. The NAM argument essentially goes back to the (correct) idea that the NPT was a quid pro quo grand bargain, and that in increasingly restricting civilian nuclear exports from flowing to developing NNWS, supplier states have through the NSG guidelines unilaterally altered that grand bargain, leaving NNWS with considerably less than they originally bargained for, and thus considerably less in the way of incentive to remain within the NPT grand bargain going forward.
I think that these NAM arguments have gained new and unprecedented validity with the adoption of the new NSG guidelines on ENR transfers, amending paragraphs 6 and 7 on enrichment and reprocessing technology.
The gap between the principles of the NPT in Articles III and IV on the one hand, and the NSG guidelines on the other, has never been wider than it is now. The guidelines now require, as a condition of supply of ENR technologies, not only membership and full compliance with the NPT, but also full compliance with the recipient state’s IAEA Comprehensive Safeguards Agreement, a complete lack of any suspicion whatsoever by the IAEA Board of Governors of any noncompliance with the NPT and a CSA, dutiful reporting to the UNSC 1540 Committee, an end user agreement with the supplying state, and unless it meets the exception in paragraph 6(c), adoption of an IAEA Additional Protocol.
And even then, suppliers will have to have a think about supplying to you, based upon a general “policy of restraint.”
I’m sure I’ll be writing another piece somewhere about the diabolically badly conceived and drafted legal language in paragraph 6(a)(ii) of the new guidelines (OMG). But the point I want to make in this post is that with these newly revised guidelines on ENR technology supply, the NSG has moved further than it ever has been away from the principles of the NPT, and has given much greater validity to classic NAM arguments about the nature of the NSG as an illegitimate, politicized supplier cartel that has no principled connection to the NPT, and that in fact is unilaterally (as a group of supplier states) altering the grand bargain that NNWS agreed to when they signed onto the NPT back in 1968.
Proponents of the new NSG guidelines may see them as a victory for nonproliferation. And they are. But that victory may be Pyrrhic if it results in further undermining the fragile NPT grand bargain that is the cornerstone of international cooperation on nuclear energy.
Dan:
Again, I like the piece tremendously, which is not to say I agree. I had two initial questions.
What is the origin of the “three pillars” claim? I have always rejected that interpretation, in part because I learned differently and in part because of how the treaty is written. (It is, after all, called “Treaty on the Non-Proliferation of Nuclear Weapons” and not the “Treaty on Nonproliferation, Peaceful Use and Disarmament.”)
On the issue of the NSG, I recognize its contested nature, but what of the Zangger Committee — from which one of the NSG lists is transposed — which the final document of the initial Review Conference noted:
It would seem that this is an endorsement, in the NPT context, of so-called supplier state cartels.
At this point, isn’t the NAM really just arguing over the conditions not the principle? Or, as Winston Churchill probably didn’t say, aren’t we just haggling over price?
Forgive me if both those questions are answered in the book — it is on my list!
Jeffrey, it seems to me that Dan’s “three pillars claim” is fairly self-evident and I note that in challenging it you do not explain your alternative model of the NPT’s foundation or how you imagine the NPT would stand on just one pillar (which would seem to be what we’re down to if peaceful use is removed). The NNWS were supposed to sign away their rights to acquire NW in exchange for what?
That said, from an arms control perspective tightening of the NPT regime is all to the good and can be seen as strengthening of the non-proliferation pillar rather than weakening of peaceful use. I don’t know what in the NPT would forbid supplier states from deciding among themselves what criteria to use in assessing adequacy of safeguards and compliance on the part of recipients. They are supposed to be in 100% compliance and unless the burdens imposed are truly onerous it is difficult to sympathize with their complaints.
It is also not evident to me how the Bush or Obama administrations have put all the emphasis on denying access other than in the case of (some of the) states where active military nuclear programs are known or suspected.
It seems fairly obvious from the text that the treaty is about nonproliferation. It is called the Nonproliferation Treaty, its genesis was in a UN Resolution about that subject and, of course, Articles 1-3 are about nonproliferation. Then we come to Articles 4-6, which were the price of agreement. I accept 4 and 6 as necessary conditions of an international norm against proliferation. (Although I really only think 6 is desirable in its own right. I am glad to see 5, Peaceful Nuclear Explosions, gone the way of the Dodo bird. And, honestly, many of us in favor of Article 4 are simultaneously against the expansion of nuclear power in our own countries.)
To give 4 and 6 equal weight with what I take to be the central object of the undertaking — to prevent the further spread of nuclear weapons — seems inaccurate to me. What I am hoping Dan will provide is a sort of etymology of the “three pillars” concept. Was it present at the creation? Or added a later date?
I mean it honestly — I wonder about the origins of the “three pillar” formulation.
Jeffrey,
First off let me thank you again for hosting my comment on ACW. It is a great testimony to the integrity and rigor of ACW that you would post an argument that you personally disagree with, in order to round out public debate on an important topic.
WIth regard to your comments, I actually cant give you an etymological origin of the three pillars vocabulary. I’ve heard it referenced for many years. And I do consider it to be an accurate categorization of the principles contained in the NPT.
ALot of what this book is about is an effort to not take provisions of the treaty out of context, and not give treaty provisions the meaning espoused in anecdotal quotes by individual state officials (as is often done). Rather, I tried to really go back through the negotiating history of the NSG, and view all of the provisions of the NPT holistically, in their context within the treaty and in their place within the object and purpose of the treaty.
You are right to say that the formal name of the treaty mentions only nonproliferation. This is because the title was set in place at an early stage of the treaty negotiations, when the superpowers were still completely running the show, and before the NNWS achieved their negotiating goals of making the treaty a true quid pro quo. But they did eventually achieve those goals, and the NPT would never have come into being without Articles IV and VI.
If you look at the preamble of the finished treaty, peaceful use and disarmament are at least as prevalent, and actually by some measures more prevalent, than is nonproliferation. And in terms of the treaty articles themselves, there is no reason to conclude that nonproliferation as a principle is somehow more “core” or “fundamental” in the treaty regime than are peaceful use and disarmament. That idea has always been a superpower/NWS idea and has never been shared by the rest of the world, who clearly view the NPT as consisting of three coequally important principles.
I do realize that this goes against the grain of what most US policy specialists, heavily influenced by US government views, have been educated to understand about the NPT, but its really not a new or radical view. Again, its what the rest of the world – e.g. the NAM – has been saying in NPT meetings for decades. In their opinion, and mine, the idea that nonproliferation is somehow the “core” principle of the NPT, with peaceful use and disarmament of only marginal importance and conditional application, is the radical new view.
Jeffrey,
I negected to address your other question in my last post. It is true that NPT final documents have recognized the existence of the NSG and Zangger Committee. I don’t read much into this recognition from a legal perspective. There are all sorts of recognitions in these documents that are simply that – recognitions. It’s similar to how the IAEA handles communications to them by the NSG. They recognize the communication and assign an INFCIRC number to it. But neither the NPT membership nor the IAEA have ever formally endorsed, approved, or adopted the guidelines of the NSG or Zangger.
Ravi Shankar is a virtuoso sitarist and world-renowned giant of Indian classical music. A google search on “Ravi Shankar holistic” returns many hits referring to one “Sri Sri Ravishankar” who is apparently some kind of guru. Probably that’s who you meant.
My narrow take on ENR/India appeared in the July 12th issue of The Hindu:
http://www.thehindu.com/opinion/op-ed/article2219080.ece
MK
India will keep insisting on ENR to the hilt, come what may.
this issue is not going to die down. Now india is not going cry loudly about it, but make no mistakes it ain’t dying down until india gets those restrictions lifted up, you can take my word on this one. Also non proliferation effort has been completely damaged by including countries like china in the NSG cartel.
Unless you read NPT Article as requiring states to export nuclear material and technology to any and all NPT parties, it’s hard to see how you can conclude that anything about the NSG is “unlawful.” Conversely, if you are willing to accept that states have the sovereign discretion to control their own trade, there is a very high burden of proof to claim that policies for the exercise of that discretion – particularly when the aim of those policies is to prevent nuclear proliferation – are inconsistent with NPT obligations.
It is particularly difficult to understand the claim that “Conditioning supply and recognition of rights to nuclear technologies on compliance with an IAEA Comprehensive Safeguards Agreement” in any way conflicts with the NPT. The NPT explicitly conditions the exercise of the right to peaceful use of nuclear energy on being “in conformity with Articles I and II,” and NPT Parties have agreed that this should also include being in conformity with Article III, which is the associated verification mechanism. To turn it around, the claim that this condition is unlawful implies that suppliers are required to make nuclear exports to states that violate their safeguards agreements.
The term “cartel” is also unfortunate, since it implies that suppliers manipulate the market for their own economic advantage, i.e. that they collude to limit supply in order to increase profits or to increase supply in order to prevent competition. The NSG Guidelines are designed to take economic advantage out of the picture. OPEC is a cartel. The NSG is not.
I largely support Dan’s view that the three pillars are — or should be — more or less equal.
No complicated history, or legalese, or analysis of the title of the treaty is really needed for understanding this.
One only has to realize that it is a voluntary treaty and that non nuclear weapons states voluntarily gave of some of their sovereignty in order to gain something.
To argue that one pillar is more important than any other is to argue that this voluntary bargain that the NNWSs entered into was not really a bargain but that they voluntarily agreed to give up more than they gained. An anti-no-brainer.
I look forward to reading Dan’s book.
I’ll pile on with Jeffrey. My own sense is that we exaggerate the degree to which the NNWS made a deal where they gave up something they cared about (their right to proliferate) in return for something else they wanted (peaceful use and disarmament).
My read is that most NNWS agreed to forswear something they didn’t really want to do anyway (proliferate) in exchange for assurances that their neighbors and potential and actual rivals would also forswear proliferation, and if those neighbors and rivals did try to proliferate, would be more easily identified and more readily impeded.
Peaceful use isn’t so much a positive as a negative commitment, i.e. it’s primarily a commitment not to impede peaceful use, not a commitment to provide all states with peaceful technology. And the disarmament piece is ridiculously vague, i.e. non-time bound and in the context of general and complete disarmament, whatever that means.
As a political matter, of course the NNWS brand the three pillars as equal at review conferences. But I’m with Jeffrey that at least as best I can assess, this is still more a nonproliferation treaty for the majority of its participants than it is either a disarmament or a peaceful use treaty.
I suggest reading the last article in Krepon’s recent “Summer Reading for the Well-Read Wonk” post to get a better sense of the general reticence to give up the nuclear weapons option, contemporaneous with the negotiation of the treaty.
If you think that the peaceful use and disarmament clauses are unimportant, do you contend that the treaty would have been successful if it did not include them? Do you think that the treaty could survive an explicit declaration by the NWS that those clauses are non-operative?
The sense I have is that many of the industrialised NNWS wished to keep their future options open, for two reasons: If one of their neighbours broke out of the treaty, they wanted to be able to respond in kind; and because they correctly surmised that their only future leverage to hold the NWS to their side of the bargain was the threat of proliferation recommencing. One needs only to consider examples like Japan’s Pu stockpile to see this quiet bet-hedging.
Did I say Articles 4 and 6 were “unimportant”? No, I did not. In fact, I said the opposite: Articles 4 and 6 were “necessary conditions of an international norm against proliferation.” So, to answer your question, I do not believe the treaty could survive an explicit declaration by the NWS that those clauses are nonoperative. I would oppose such a declaration very strongly.
What I objected to was the equivalence given to disarmament and peaceful uses (the phrase I used was “equal weight”) in what is a treaty about primarily about nonproliferation.
I agree with your observation about bet hedging, but that is precisely why I find the three pillars formulation so pernicious. It does no good to allow Iran to claim that some failure on the part of the United States in the disarmament realm relieves it of any obligation to, say, Saudi Arabia and the UAE, to remain non-nuclear. That is a recipe for more bombs in the Middle East.
I have no objection to negotiating for more specific disarmament criteria. Quite the opposite: I worry about the consequences of the United States walking away from the 13 steps outlined in 2000 and continually point out how important many of those steps (like ratifying the CTBT) are to maintaining the NPT.
But no state-party nor group of states-party should be allowed to simply begin asserting asserting that the NPT says something other than what was agreed. It is particularly important, as states start to hedge their bets, not to slip into the trap of treating nonproliferation as a “favor” that the NNWS do for the NWS (and disarmament as a favor the NWS do for the NNWS). That is a clear path to regime collapse. That some US officials adopted this silly phrase in official statements borders on diplomatic malpractice. Yes, Susan Burke, I am talking about you.
(PS: I have no objection, on the other hand, to using “three pillars” in an academic context where the speaker wishes to make an analytic argument about the necessity of Articles 4 and 6 to the vitality of the treaty.)
Dan,
Thank you for writing this book. I look forward to getting my hands on a copy. In the meantime, I do have some questions about this area I’d like to hear your take on. I hope i’m not too off topic.
“These actions were arguably also in breach of the Article IV(2)”
Why arguably? Isn’t it pretty cut and dry?
“Through rigorous and systematic application of the interpretive principles of the Vienna Convention on the Law of Treaties, I concluded in the book that each of these policies/efforts were actions in unlawful circumscription of the right of NNWS to peaceful nuclear activities in Article IV(1).”
What exactly is the violation of the NNWS rights under Article IV over here? Are the individual policies of national governments of NSG states a violation of the rights of the NNWS? Or is the idea that since the NSG states are ‘conspiring’ to limit access to nuclear technology, the right of the the NNWS are violated?
Is there any entity that is empowered to enforce these rights? Is there any judicial body that is authorized to decide whether these rights have or have not been enforced and order appropriate relief?
What is the relationship of the IAEA to the NPT? I know the NPT authorizes the IAEA to carry out inspections in member states, but is the IAEA legally required to abide by any or all of the provisions of the NPT?
Do you deal at all with the issues of espionage, sabotage, and assassination programs? Would you term these activities as breaches of Article IV?
My impression from your brief piece is that your book focuses on policy statements from the NSG after the cold war/ after 1998. Have you studied policy statements by NSG states during the cold war? Were they significantly different?
Masoud
Masoud,
Thank you for your kind words. I want to give your questions full consideration and reply. However, at the moment I am away from a good Internet connection and I have been driving my family across the US in an RV forthe past 12 hours. So let me answer you in more detail tomorrow.
Dan
Dan,
Don’t feel rushed on account of my questions. Get back to me when you have the time.
Enjoy the road trip!
Jeff,
What exactly do you mean when you say the three pillars shouldn’t be given ‘equal weight’? Do you mean it is somehow ‘less illegal’, under the NPT, for the NWS states to keep and expand their Arsenals than it is for NNWS to develop them? If so how much ‘less illegal’ is it(according to whatever method you’ve chosen to measure illegality)?
When you say their is a ‘main objective’ and a ‘price to be paid’, this implies some kind of quid pro quo. Do you think if the main objective is not completely achieved, this justifies Nuclear Weapons States/NSG States, morally or legally, to ‘decline payment’? If not, what difference does it make to you, if there are three pillars, or just one pillar and two catches?
Non-NWS didn’t just get the right to nuclear energy.
They got the regional benefits of nonproliferation. Brazil, Argentina and Chile don’t have to worry about nuclear security dilemmas between them. Australia, Indonesia, Vietnam; Sweden, Germany, Poland and Ukraine; Japan and South Korea; Egypt, Algeria, Libya (oops) and Sudan don’t have to worry about each others’ nuclear weapons programs.
I take more of a Lockean than a Thomist approach. The Sovereign (the NPT) is obeyed not because of its inherent rightness but because obeying creates a better environment than the probable results of anarchy.
A good point. Nonetheless, the NWSs and the P-5 may wish to listen to the >100 countries that comprise the NAM when they express their collective displeasure with the performance of the enforcement arm of the NPT, the IAEA.
Since the NPT is a voluntary treaty, those who would like it to remain in effect might consider increasing their empathy level with the majority of nations that have signed on to it.
Lastly, the NNWs not only gained a right to peaceful nuclear energy but also a right to demand that the NWSs negotiate in good faith a treaty to disarm at an “early date”: viz. “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on….a treaty on general and complete disarmament under strict and effective international control.”
Certainly this is true – but apparently that benefit was not sufficient to induce many of them to join the treaty in the first place. It is also worth noting that the value of this benefit varies a great deal between nations – for example, Iran and Iraq face four nuclear powers in their immediate neighborhood despite the treaty.
Perhaps the regional benefits of nonproliferation weigh more heavily now than they did 40-odd years ago; fp upi think the treaty could be expected to survive an explicit declaration that all but the nonproliferation clauses are inoperative?
I don’t see how one can attribute a uniform cost benefit calculation to all non-nuclear weapons states. Surely it was enough for some states, not enough for others. This is my point: This is not a bargain between two homogenous groups called the nuclear and non-nuclear weapons states. It is an agreement among 187 states-party.
Although I do not think the treaty could survive a declaration by the five nuclear weapons states that Article 6 is non-operative, it is important to remember that the treaty did survive for more than two decades without the signature or either China or France. Clearly the refusal of those states to accept Article 4 was not sufficient to strangle the treaty in its cradle.
There are many bargains at work here, something the “three pillars” construction obscures.
The regional benefits of non-proliferation are also shown by the Latin American, African and Southeast Asian Nuclear Free Zones.
That said, those treaties mean those benefits would be kept even if the NPT fell apart.
I actually wrote an article for Jane’s Intelligence Review, in which I made the argument that the primary value of nuclear weapons free zones is that they make explicit what I call the “good neighbor” bargain that seems to get lost in the NPT debate that focuses on the haves v. have-nots. As I wrote in another post:
Not all of the world, however, lives in a nuclear weapons free zone — Europe, Northeast Asia and the Middle East are covered only by the NPT at this point. (North and South Korea have a joint declaration on denuclearization, but you can see how that is going. Mongolia is a single-state nuclear weapons free zone.)
Regional approaches are an important complement, but at the end of the day I believe the norm against the further spread of nuclear weapons (which is part of their gradual stigmatization) is not sustainable on a solely regional basis.
I do agree that it is a complex 187-way bargain, and to describe it in NNWS vs NWS terms is simplistic. The NNWS certainly do, to varying degrees, accrue a significant benefit from the NPTs restraints on their strategic competitors, and the subsequent freedom from having to spend a significant part of their national wealth on unuseable weapons.
In fact, it does feel like those benefits carry more weight now than they did when the treaty was first negotiated – perhaps because the weapons have existed now for three times as long as they had then. It doesn’t seem to have been realised at the time that the NPT was negotiated that even tactical nuclear weapons would be unuseable in practice.
If I purchase a new car, the relevant paperwork will probably be labeled “new car purchase agreement”, and from my perspective the single really important part of the deal is that I get a new car. The dealer will have a different perspective, and if the pesky little detail where I have to send him $25K gets forgotten I will not get a new car. And complaining about how the dealer doesn’t appreciate the spirit of the deal, won’t get me a new car.
The deal codified in the NPT is rather less precise, particularly the bit about negotiating in good faith towards total disarmament. But it is ultimately a voluntary agreement, from which any party can withdraw (or cheat) at any time, so if we want our shiny non-proliferation we do need to convince the rest of the participants that they are getting approximately what they bargained for.
Objecting when they describe their part of the bargain as a “pillar” of the treaty, seems unhelpful. Claiming that they should be happy they get to share in the non-proliferation and settle for that, ditto.
Beautifully said.
I agree with Daryl. Well said John.
The problem is that wasn’t the bargain. This is some mythical history that people have invented, which is a real threat to the long-term viability of the treaty.
The NWS states did not, as a group, purchase the non-nuclear status of the NNWS with a pledge of disarmament. The agreement is among all the states party. Do you really think the UAE was bargaining for disarmament by the United States or the United Kingdom? Or nonproliferation by Iran and Saudi Arabia? Do you think Japan, as a non-nuclear weapons state, is more interested in US disarmament or North Korea returning to the treaty?
There is not one central bargain embedded in the treaty. There are many, and the three pillars formulation obscures that.
Jeffrey’s point is well-made, but the calculus is different for different nations. Do you suppose Germany is more concerned (in the long run) about the arsenals of UK, France and Russia, or about proliferation in Belgium? Or returning to the example of Japan, she certainly would be most interested in North Korea returning to the treaty, but I suspect she would also be rather keen on China denuclearising.
Actually, Germany is an interesting case. I think Germany would most of all like to see a disarmed Russia, but it is probably also quite happy that the Swiss and Swedish bomb programs are shuttered.
My guess is that, if one or more nuclear weapons states announced it could not live with Article 6, Germany and Japan would play a leading role in arguing that the international community should preserve the NPT until that state came to its senses.
What we think the UAE was bargaining for then is rather less important than what the UAE presently thinks they won in the bargain, and they aren’t exactly secretive on the point: http://www.uae-embassy.org/uae/foreign-policy/non-proliferation. They seem to value peaceful use, nonproliferation, and a completely denuclearized Middle East.
Each NPT party will have a slightly different take on the matter; some explicitly using “Three Pillars” language, some not. Integrate over the whole and you have a bargain amongst many nations for Strict Nonproliferation, Complete Disarmament, Fullest Possible Peaceful Use, and not much else. With each party weighing the three somewhat differently, but no aspect being generally devalued by all and with everyone bound to make a good-faith effort at serving up all three to every other party. Even the ones who we think are or ought to be really interested in just one or two.
I don’t see how “Three Pillars” substantially misrepresents or obscures anything of substance there.
As for it being a complex bargain, yes. So might my hypothetical new-car purchase. I could be trading in my old Buick in addition to the cash payment. My wife might have signed on to the deal more for the sake of dispensing with the Buick than the new car, and I might suspect the dealer is mostly interested in the cachet and free advertising of having sold a car to the famous and influential John Schilling.
But if he describes this as a “two-pillar deal: cash for car”, I ought to take that as an indication of what he thinks are the important parts. If I respond by denying such simplistic analysis and talking about how that old Buick in his lot is destined to be a classic, he ought to take that as an indication that I’m about to miss a payment.
John Schilling: Eight Dan Black Belt of the Car Analogy.
If Dan Joyner happens by this thread again, his expertise is respectfully requested in the next Jeffery Lewis post up.
A comment on the “bargain” terminology. I think it is a mistake to characterize the NPT as a bargain between the nuclear weapon states and the non-nuclear weapon states (disarmament for nonproliferaiton) or between the technology haves and have-nots (nonproliferation for peaceful use). It’s all those things and more. As some have pointed out, one of the key bargains is the security bargain among non-nuclear weapon states (nonproliferation for nonproliferation).
Perhaps we should talk about the NPT “bargains.”
I’m reposting this comment since it is inexplicably still awaiting moderation a day later. What gives??
Unless you read NPT Article as requiring states to export nuclear material and technology to any and all NPT parties, it’s hard to see how you can conclude that anything about the NSG is “unlawful.” Conversely, if you are willing to accept that states have the sovereign discretion to control their own trade, there is a very high burden of proof to claim that policies for the exercise of that discretion – particularly when the aim of those policies is to prevent nuclear proliferation – are inconsistent with NPT obligations.
It is particularly difficult to understand the claim that “Conditioning supply and recognition of rights to nuclear technologies on compliance with an IAEA Comprehensive Safeguards Agreement” in any way conflicts with the NPT. The NPT explicitly conditions the exercise of the right to peaceful use of nuclear energy on being “in conformity with Articles I and II,” and NPT Parties have agreed that this should also include being in conformity with Article III, which is the associated verification mechanism. To turn it around, the claim that this condition is unlawful implies that suppliers are required to make nuclear exports to states that violate their safeguards agreements.
The term “cartel” is also unfortunate, since it implies that suppliers manipulate the market for their own economic advantage, i.e. that they collude to limit supply in order to increase profits or to increase supply in order to prevent competition. The NSG Guidelines are designed to take economic advantage out of the picture. OPEC is a cartel. The NSG is not.
Just busy.
I’m really pleased and grateful for all the good discussion going on about this post.
For my friend Jeffrey and others that I have yet to convince of my thesis, I would encourage you to see the book for my full historical and interpretive analysis that forms the basis of my arguments. I know Jeffrey and others have already said they will do this. I do think that you will find the case substantiated there. That’s not to say that it will convince all. But I think it might make the arguments that NAM leadership and other NNWS officials make at NPT meetings and in other international organizational fora (UN, IAEA) perhaps more understood and respected.
And to the NAM leadership and other NNWS officials who would like assistance in making such arguments, let me just add that in addition to being a law professor, I’m also still a lawyer for hire!
Dan
I look forward to reading Joyner’s book. In the meantime I strongly side with Jeff on the idea that the NPT is a complex series of bargains, and that the “3 pillars” is a post-hoc political construction that does not accurately reflect the framers’s intent. Moreover, we tend to forget how much the NPT was Europe-oriented (with additional bargains being made within NATO). A short and not-entirely-outdated essay addressing these issues is here:
http://www.frstrategie.org/barreCompetences/proliferations/doc/tertrais_npt.pdf
There are some great arguments here on both sides – still I am more in agreement with Jeffrey on this. It seems to me the NPT has a specific purpose and that purpose is to limit the spread of nuclear weapons and thereby reduce the probability of nuclear war. That is ultimately what the treaty is for and so nonproliferation at the core of its purpose.
If, for instance, you take the nonproliferation articles out of the treaty, what do you have? Not much as you’re left with technology sharing (which a multilateral treaty on the scale of the NPT is unnecessary for) and disarmament, which only applies to a handful of states.
On the other hand, the treaty contains several articles and I don’t think it’s apparent that, internal to the NPT, some are legally more important than others even if common sense indicates otherwise. In other words the articles themselves in the context of the treaty are coequal.
And I guess I view article IV a bit differently as well. I see it’s main purpose as a constraint on the nonproliferation articles in order to prevent a situation where nuclear technology isn’t shared at all.
As a practical matter, there is also the problem of definitions and compliance. The nonproliferation articles are a lot more clear-cut and although there is room for interpretation, it’s not difficult to determine compliance. The other articles are more vague and therefore are open to a wider range of interpretations. There is also the simple fact that peaceful nuclear technology isn’t viewed with the rose-colored glasses that it was in the 1960’s. Nuclear power, with its high capital costs and strict regulatory requirements, isn’t the panacea many believed it would be. While I think the NAM and others are probably right that the big players aren’t doing enough, it’s also true that times change and the golden rule still applies – ie. the biggest obstacle to peaceful nuclear technology in the developing world is money.
Finally, I’d like to reemphasize the point that nonproliferation benefits everyone. We hear threats from advocates for the NAM states that they will withdrawal from the treaty. Well, who is going to be the first? Doing so will send a pretty clear and dangerous message to that country’s neighbors. Will that country get more access to nuclear technology outside of the NPT? Seems doubtful given the political cost of withdrawal.
The funny thing is, it is the “three pillars” formulation that argues some clauses are more important than others. Sure Article 2 (nonproliferation), 4 (peaceful uses) and 6 (disarmament) get the main emphasis, but what about 3 on Safeguards? The only use of “pillar” in any REVCON document I can find is in reference to safeguards.
Fortunately, the states party have indicated that they will interpret Article 5 (on “peaceful” nuclear explosions) in light of the Comprehensive Test Ban Treaty.
But this raises an interesting point made by others: the 1970 NPT embodies a lot of assumptions — the battlefield utility of nuclear weapons, the promise of nuclear energy too cheap to meter, and possibility of using nuclear explosives in civil applications — that are anachronistic. One of our challenges in keeping the treaty relevant is ensuring, as we did with the CTBT and Article 5, that we can negotiate legal instruments to account for such changes.
I think that’s sort of the point. Individual articles are not all equally important. The “three pillars” formulation describes what, collectivey, is important to the treaty partners, without regard to how many articles are devoted to each and how many to irrelevancies or administrative details. There are three things which, if it becomes clear that any one of them isn’t going to happen, will eventually cause a critical mass of treaty partners to walk away and then the whole thing falls apart.
That is something to be kept in mind when we go about the necessary business of, as you put it, negotiating legal instruments to account for changes. Negotiations focused on nonproliferation alone seem unlikely to succeed.
And again, I would counsel against too great an emphasis on what the NPT’s framers intended. What matters going forward, is what current NPT participants believe and desire.
Again, I don’t object in an academic context to observing that “There are three things which, if it becomes clear that any one of them isn’t going to happen, will eventually cause a critical mass of treaty partners to walk away and then the whole thing falls apart.”
But that is not what was agreed to, and I am very leery of allowing a state or group of states to simply assert the treaty now means something else because that is what they wish it had said in the first place.
“I am very leery of allowing a state or group of states to simply assert the treaty now means something else because that is what they wish it had said in the first place.”
Unless of course, that group of states is declaring that Peaceful Nuclear Explosions are no longer relevant?
What is the trouble with saying:
“There are three things which, if it becomes clear that any one of them isn’t going to happen, will eventually cause a critical mass of treaty partners to walk away and then the whole thing falls apart.”
“And each of these three things have been ratified by all signatories of the NPT, and are legally binding on all states.”
In a non-academic setting?
The argument is that accepting the “three pillars” interpretation as a policy perpetuates the inaccurate and ultimately destructive (for the regime) view that the treaty is between two groups of states (haves and have nots), which underpins the notion that states may be selective in meeting their nonproliferation commitments based on a (usually self serving) assessment of the compliance of other states with whatever other article they happen to claim is of equal weight at the moment.
To put it another way, as a matter of policy we cannot permit states to hedge on their nonproliferation obligations (neither Iran nor our friends like South Korea), but as an analyst I observe that hedging happens all the time.
(As a side note, I find one aspect of NAM politics frustrating. This “three pillars” stuff is really the argument of a middle power, not the median NAM state. Most members of the NAM would be much worse off in a world of unconstrained proliferation, since they would have the most trouble building and sustaining a nuclear deterrent and, by definition, have the smallest prospect of security guarantees.)
I just wanted to jump in and say that I think John Schilling has done am excellent job of defending the arguments I am making in the book. I endorse and appreciate all of his commentary.
I recognize that the three pillars analytical paradigm is not perfectly explanatory of all of the intentions of all of the parties that signed the NPT. But I do think that it is parsimoniously accurate in describing one of the fundamental dynamics that was going on, and that is indeed a quid pro quo between the NWS and the NNWS. The NWS, and particularly the superpowers, primarily concerned about nonproliferation. Many developing NNWS not wanting to write the NWS a blank check and demanding disarmament obligations, AND wanting supplier state promises of assistance in their civilian nuclear energy programs, which many felt would be key to their development. Again, this doesn’t perfectly describe the intentions of all parties, but it is a fundamental and widespread set of intentions that we should not now try to explain away with talk of complexity and alternative purposes.
To me, the myth of the NPT negotiating history is the myth that all NPT states agreed that nonproliferation was the core and most important value they were pursuing. This is true of the superpowers, but it was definitely not true for most NNWS. This is a myth that has been created among NWS policy wonks and state officials in order to support interpretations of the NPT and policies based thereon particularly since the end of the cold war.
Dan
Ok, boys (and girls), for the non-mythical history of the NPT and the “bargain,” the summer reading is Mohamed Shaker’s “The Treaty on the Non-Proliferation of Nuclear Weapons: Origins and Implementation, 1959-1979,” available at http://cns.miis.edu/activities/100525_shaker_egypt_un/index.htm (right-side column). There will be a quiz.
I absolutely endorse Gaukhar’s assignment here. Shaker’s work is THE authoritative reference work for the negotiating history of the NPT. It is invaluable. I certainly spent alot of time in it writing my two books. And I was honored beyond all expectation that Ambassador Shaker graciously agreed to write a Foreword for my new book. It can be dead at the OUP website.
Dan
I think there is another dimension we need to examine: the issue of “estopple” – namely, that most of those raising concerns about the NSG have previously accepted the existence of the group, along with its rather open-ended mandate, either by joining the NPT after the group was already operating and/or by joining the 1995 consensus on the NPT’s indefinite extension notwithstanding the NSG’s activities. (By 1995, by the way, the NSG full-scope-safeguards rule was in effect, a reminder that the group could increase restrictions on nuclear transfers at will).
It looks like 98 NNWS joined the treaty before 1978, when the NSG was formalized. Of these 28 became members of the group, leaving 70 states that might complain today that they were “blind-sided” by the sudden advent of the suppliers’ organization. But after 1978, 85 additional NNWS joined the NPT. So they, in effect, joined the treaty knowing that the NSG would be trimming their Article IV rights. Adding the early signers that became NSG members and this cohort of 85 later NPT signers (28+85) means 113 NNWS don’t have much standing to complain. That’s about 61% of the NNWS in the treaty.
Regarding the 1995 indefinite extension, states concerned about the NSG could have blocked consensus, but didn’t, and settled instead for hortatory language (“should”) in the Principles and Objectives:
Peaceful uses of nuclear energy
14. Particular importance should be attached to ensuring the exercise of the inalienable right of all the parties to the Treaty to develop research, production and
use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I, II as well as III of the Treaty.
15. Undertakings to facilitate participation in the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful
uses of nuclear energy should be fully implemented.
16. In all activities designed to promote the peaceful uses of nuclear energy, preferential treatment should be given to the non-nuclear-weapon States party to the
Treaty, taking the needs of developing countries particularly into account.
17. Transparency in nuclear-related export controls should be promoted within the framework of dialogue and cooperation among all interested States party to the
Treaty.
I’m not sure how hard to push the estopple issue – perhaps, in Dan’s terms I should have said “state practice” – but I thought it would be worth including it in the discussion.
Latest on ENR & civ-nuke deal:
the gift that keeps on taking or, biting the hand/institution that feeds you…
http://www.thehindu.com/news/international/article2229431.ece
ENR ban is still in place. like you said before India did not get the clean waiver back in 2008. so russia is only talking about the waiver which india got in 2008, and that waiver does not include ENR tech transfer. however that waiver does include transfer of sensitive equipments and technologies. Now that is left for interpretation or may be NSG just shot itself on the foot.
One could play devil’s advocate and attempt to argue for a third position namely that peaceful use is the central pillar. Eisenhower in his atoms for peace speech stressed that nuclear knowledge and technology has, albeit slowly, spread, and will continue to do so over time. How then to harness and manage “the peaceful atom?” We are interested in the non-proliferation of nuclear weapons, and have created a non-proliferation regime to boot, because we want to ensure that as knowledge and technology spreads, whether that assumption of spread was dubious or not is not at issue, that the fruits of that knowledge and technology will be only used for peaceful purposes. Non-proliferation is seen as an important norm serving the maintenance of world order in the context of spreading nuclear knowledge and technology. You could have a non-proliferation regime in a world with no nuclear fuel cycle, in which case peaceful use is neither a concern nor a pillar, but with the nuclear physics genie out of the bottle and with the historical oddity that a small group of states had already proliferated; in such a world one could imagine non-proliferation and disarmament being dual pillars of a non-proliferation regime. But that is not the type of world we live in nor was it envisaged that we would live in such a world. So the NPT is a treaty that is all about the peaceful use of nuclear technology, hence; the non-proliferation norm, the rights to the peaceful atom, the safeguards as deterrent, the disarmament provision. Regardless, however, the points made about “good policy” are well taken. We have seen recently advances in laser (i.e. Silex) uranium enrichment. Do we want to provide, to all members in good standing with the NPT and with light water reactors, or planning to build light water reactor based fuel cycles, all the assistance that they need to construct laser enrichment plants? I don’t think so. But, do we want a situation where, defacto, such technology is the preserve of a few states? I don’t think so either. The best solution is to have international control of enrichment and reprocessing, if not international control of enrichment and no reprocessing at all. Surely Dan would agree that it would be legitimate in such a scenario for states who possess the technology and know-how to build such plants to get together to restrict the trade of such technology. Surely ACW would agree that letting some states retain the full cycle whilst restricting trade in fuel cycle technologies might corrode the NPT. Surely even a hippie would agree that there has to be tougher non-compliance and withdrawal provisions when the fuel cycle is internationalised. Surely even a neo-con could appreciate that the unilateral use of military force would create powerful incentives for states to keep the deterrence option on the table and so be loath to give up enrichment and reprocessing. It would be better to consult with an NGO on proposals to rethink the non-proliferation regime than to be a paid consultant for a state, whether a NWS or a NNWS.
As you may know, I have argued (unsuccessfully) that all states (including the United States) should renounce national enrichment and reprocessing programs. Instead, they would agree to a set of principles that establish appropriate, effective “multinational” options that would be open (in the market sense) to all states (with some redistributive provisions for the poorest states). This rule falls somewhat short of international (usually IAEA) control, but I think it represents the best balance of nonproliferation and commercially viable enrichment enterprises.
I think your view of two worlds really gets at the one observation that I think is most important in trying to plot a course forward: When the NPT entered into force in the 1970s, the world believed a lot of stupid things: (1) that nuclear weapons had military utility, (2) that peaceful nuclear explosions would be useful for large scale construction projects, (3) that the nuclear power was a step on the road toward prosperity that no state could miss.
States that signed the treaty really were, or thought they were, giving up something of value. Forty years later, I think nuclear weapons and nuclear power still occupy certain niches. But those are small. And technical realities have outpaced the regime. In 1970, policymakers could not foresee how the development of gas centrifuges would shift the balance toward the clandestine proliferators. (Laser enrichment terrified me in this regard.) The idea that the Additional Protocol, meant to respond to Iraq’s efforts on enrichment, remains contested twenty years after the technical revolution is not an encouraging sign.
Just as we are trying to elaborate on the meaning of the obligations in Article 6 (which was hopelessly vague) and decided to understand Article 5 in light of the Test Ban, I think this idea of what Article 4 means needs to understood in terms of the principle I outlined above — no national enrichment or reprocessing facilities.
I have suggested doing this in the context of an FMCT, but that is usually not very popular. One could imagine alternative modes — an Article 4 code of conduct or perhaps some language in a Review Conference document. The mode isn’t so important to me. It is the principle that really counts.
I have to say that I am one of those who is dubious of the political practicality of either fuel banks or multinational enrichment centers. Both seem to me to be solutions where a problem doesn’t exist – meaning that the only states that will source from them are states noone worries about. As for the states that are worried about in terms of proliferation, no assurance of supply the West can give will convince them to give up indigenous capability and put all their eggs in the multinational basket. They know well that if the stuff hits the fan and the US wants to cut off supplies from the multinational source, those assurances of supply won’t mean jack.
Relatedly, see Fred McGoldrick’s excellent new piece on the US gold standard:
http://csis.org/files/publication/101130_McGoldrick_USUAENuclear.pdf
Jeffery,
I find your contention that the ‘three pillars’ formulation is problematic because it gives the impression that the ‘NPT’ bargain between the haves and the havenots is unconvincing.
Nothing in the three pillars formulation strictly suggests a deal between the NWS and the NNWS. You yourself have talked about the obvious benefits of non-proliferation to the NNWS, there is an analogous benefit of disarmament to the NWS, and enabling peaceful use is both incumbent on, and beneficial to, all states. So why the sensitivity to three pillars? I mean you could say the Media frequently talks about the NPT in terms of such a ‘deal’, but in my experience, the media that speak in those terms don’t talk about the three pillars at all and simply talk about the NPT as ‘a deal between…’. Seriously, try and find anything in the MSM about the NPT’s peaceful use provisions, it’s not easy. Usually the NPT is portrayed simply as a promise by the NNWS not to develop any nuclear technology at all. Surely the ‘three pillars’ is step up form that, right?
As I understand it, your major gripe with the three pillars formulation is that, speaking as an American analyst, you advocate that the significant peaceful use stipulations of the NPT should be slowly but surely ‘sidelined’, the non-proliferation stipulations strengthened, while the disarmament stipulations continue to left to the domain of the big boys, outside any possible action by the NNWS, and the three pillars formulation complicates the advocacy of these positions.
Why not just come out and say just exactly that? If you did we could have a more forthright and less crowded debate about your positions, or just drop the whole thing altogether, but why insist that the NPT should only be read in a way that lends itself to some particular set of policies that seem attractive to Americans half a century after the NPT was inked?
I’d just like to point out, that upon rereading my own comment, it does come out a bit harsh. In particular, it seems ironic to accuse Jeff of not doing enough to encourage a ‘forthright debate’ during a discussion on his own website, sparked by his flagging of a work with which he deeply disagrees. I’m not usually that thick, and I hope readers will be able separate the useful bit of my comment(such as it is) from some of my more over the top expressions.
What the “three pillars” does wrong is simple: the three pillars reinforces the view that the important bargains are between the “haves” and the “have nots”, when the most important bargain of all is among the “have nots” to remain that way.
On two other issues:
First, I certainly do not believe that “the disarmament stipulations continue to left to the domain of the big boys.”
On the contrary, I support the multilateral negotiation of steps constituting good faith under Article 6. In particular, I have strongly supported (at no small professional cost, I might add) the US decision to accept the “13 steps” in the 2000 NPT Review Conference. One of the weaknesses of Article 6 is that, beyond “ending the arms race,” the obligation to achieve “general and complete disarmament” is far too vague. The treaty will be stronger if more specific steps are agreed and taken.
Second, I don’t believe “significant peaceful use stipulations of the NPT should be slowly but surely ‘sidelined’.” As written, in the passive voice, it is not clear who is doing the sidelining. It seems, however, the implication is that I believe the United States should do the sidelining, which is not what I think.
I am not saying that the United States and other developed countries should have nuclear power, while others do not. What I am saying is that this entire debate is premised on the idea that nuclear power was an essential step in development. Today, I think nuclear power is appropriate in a relatively small number of circumstances, given substantial economic and environmental downsides. I do not find the nuclear “renaissance” a compelling vision of the future. Is it too much of a stretch to imagine that, in another 50 years, revisionist scholars will be complaining about how the developed world pawned off obsolete and dangerous reactors designs on developing countries during this “renaissance” while gradually phasing nuclear power out themselves?
I don’t want to take away the “right” of developing countries to nuclear power, but if I am being forthright, in choosing between the Government of India and a local environmental group opposing construction of a new reactor, in general I tend to side with my green hippie friends. I would make the same choice in Germany or Japan.
I just find it odd that some people are critical of new nuclear power plants, until some developing country wants to put one in a rainforest. The Simpsons would have a field day with Lisa Simpson going to an anti-nuclear protest, then playing the NAM in Model UN. The cognitive dissonance would be amazing.