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One of the perennial debates that rages in the comments section of this blog is about the meaning of article IV of the NPT. As a quick recap, recall that article IV.1 states that

Nothing in this Treaty shall be interpreted as affecting 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 and II of this Treaty.

The debate typically revolves around two questions. First, how far does the right “to develop research, production and use of nuclear energy” extend? Does it include enrichment and reprocessing technology, or stop at power reactors? Second, even if it does not say so explicitly, are article IV rights contingent upon compliance with IAEA safeguards (as set out in article III)?

I recently came across some interesting historical material that sheds some light on these questions.

A word or two of background is needed first. Article II (upon which Article IV rights are explicitly conditioned) contains the injunction against non-nuclear weapon states not to “manufacture” nuclear weapons. The term manufacture is not defined in the treaty but, as I wrote about in my first VERTIC paper, the negotiation history of the NPT provides a useful guide.

There was considerable debate during NPT negotiations over the meaning of manufacture. Agreement was eventually reached in a set of purpose criteria, sometimes known as the ‘Foster Criteria’ (after ACDA Director William Foster). According to Josef Goldblat (in Arms Control: A New Guide to Negotiations and Agreements) these criteria have not been challenged.

Most of the time the Foster criteria are simply given as: “Facts indicating that the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show non-compliance.” But, occasionally, they are quoted in a longer form:

Facts indicating that the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show non-compliance. (Thus, the construction of an experimental prototype nuclear explosive device would be covered by the term “manufacture” as would be the production of components which would only have relevance to a nuclear explosive device.) Again, while the placing of a particular activity under safeguards would not, in and of itself, settle the question of whether that activity was in compliance with the treaty, it would of course be helpful in allaying any suspicion of non-compliance.

A month or two ago, I was given a copy of Mohamed Shaker’s epic but almost impossible-to-find The Nuclear Non-Proliferation Treaty. The Foster Criteria appear to be based on Foster’s testimony to the Senate. In this testimony there is a second, very interesting paragraph that I have never seen before. It goes like this:

It may be useful to point out, for illustrative purposes, several activities which the United States would not consider per se to be violations of the prohibitions in Article II. Neither uranium enrichment nor the stockpiling of fissionable material in connection with a peaceful nuclear program would violate Article II so long as these activities were safeguarded under Article III. Also clearly permitted would be the development, under safeguards, of plutonium fueled power reactors, including research on the properties of metallic plutonium, nor would Article II interfere with the development or use of fast breeder reactors under safeguards.

Foster could hardly be clearer: In his view article IV permits pretty much anything short of building a nuke so long as (i) it is carried out under safeguards and (ii) it is done with peaceful intent (something it is impossible to determine in practice as I have argued many times before).

I should add that I’m not under any illusions that this will change the minds of any of those who regularly debate this issue on the blog. And, indeed, I know enough about international law to know that one extra paragraph of Senate testimony hardly settles this issue. But it is still notable how explicit the US was at the time about the extent of article IV rights.

Comment [17]

Remember that reality-based community comment from the anonymous Bush Administration official?

Well, “history’s actors” are at it again, still working to determine whether the current Administration policies on nuclear energy will spur proliferation.

Let me back up.

Dr. Kerry Kartchner (who incidentally wrote a good book on START) sent an e-mail to his colleagues in T/ISN*, following-up on a May 19 meeting “to discuss a public diplomacy strategy to get out the message on what we are doing to promote the responsible expansion of nuclear energy around the globe.”

(A friend of wonk who must remain anonymous happily forwarded said e-mail to yours truly with witty commentary.)

The e-mail, which I have posted below sans email addresses, includes a draft public diplomacy (PD) strategy that I have posted online. Both make for an interesting read:

“Kartchner, Kerry M”
05/23/2008 04:21 PM

To: “Humphrey, Marc A”, “Carnahan, Burrus M”, “Uhre, Katharine L”, “Harbaugh, Erin E”

cc: “Daniel, Jody L”,

Subject: First Draft of PD Strategy for Responsible Expansion of Nuc Energy

I need help filling in: “key themes” and “misconceptions, criticisms”. Comments by COB Wednesday. (I will be tied up with the PSI conference through Wednesday).

-Kerry

PD Strategy for Responsible Expansion of Nuc Energy.doc>>

The draft PD strategy is amusing for at least two reasons:

First, the strategy includes “an interview with the Post reporter who authored the rather unhelpful front page article last Monday.”

That would be a reference to Joby Warrick’s article, Spread of Nuclear Capability Is Feared, Global Interest in Energy May Presage A New Arms Race (May 12, 2008; Page A1). It’s possible that this article is the reason that ISN is drafting a strategy in the first place.

I guess the lesson is that although you can’t catch flies with honey, you can by making their life miserable on the front page of the Washington Post. Anyway, Ms. Parillo eagerly awaits her invitation to the proposed “roundtable discussion at the State Department” for NGOs.

Second, as you can see from his email, Dr. Kartchner needs a little help filling in the “misperceptions” section, particularly correcting “myths” that the spread of nuclear power will lead to nuclear proliferation or that the US seeks monopolize the market for nuclear energy technology.

For now, the “reality” is marked as TBD — to be determined — which I think kind of sums it all up.

Misconceptions and Our Response

(1) Myth: The United States opposes the rapid growth in global efforts to develop nuclear energy.

Reality: The United States supports creating a viable alternative to the development of complete enrichment and reprocessing technologies for states seeking to develop or expand their civil nuclear energy capability.

(2) Myth: Promoting the global spread of nuclear energy will necessarily lead to proliferation of latent nuclear weapons capability.

Reality: tbd

(3) Myth: The United States is seeking to monopolize global trade in nuclear energy technology.

Reality: tbd

Now I know, “TBD” is just bureaucratise for “find the appropriate boilerplate”. And GULAG was just an acronym. Sometimes ill-fitting bureaucratic language perfectly conveys, if only though though its awkwardness, the gap between the stated policy and our much maligned friend, reality. That’s one reason why 1984 is a good read.

One wag suggested that perhaps Dr. Kartchner was having trouble rebutting the claim that nuclear power won’t lead to nuclear proliferation because, well, it will. Same goes for denying that you want to monopolize the market when. of course, you do.

I, on the other hand, make no claim about the inner mental world of any State Department official. I prefer to think that Dr. Kartchner and his staff are just too busy, what with so many Proliferation Security Initiative meetings to attend and whatnot.

So, why not help a guy out?

I know that he wants suggestions by Wednesday, but I still invite readers to comment on their own “realities” to rebut the myths, the best of which we can send to Dr. Kartchner.

And, for those readers currently employed in ISN — and we have many — you may want to make sure that your snide submissions don’t too closely resemble something you might actually write in a memo.

Enjoy!

*One recipient, Katherine “Katie” Uhrey, works in the Office of Commercial and Business Affairs, outside T.

Comment [4]

I just returned from an informative lunch at the Council on Foreign Relations featuring Ambassador Tetsuya Endo, who chaired a recent Japanese government task force on nuclear energy. Fuel assurance was a prominent theme in the not-for-attribution discussion, and I was surprised to hear several prominent American nonproliferation experts assert that there never has been, nor ever will be, any real fuel assurance problem.

There is a legitimate debate to be had on the reliability of the existing constellation of nuclear fuel suppliers. I am conducting a study on this question that I hope to complete in the next 6-8 weeks. My view, in summary, is that a state’s confidence in the existing commercial market for enriched uranium is primarily a function of its broader political and economic relationship with one or more of the main suppliers. I will elaborate further when the study is complete.

But there is no room for debate on whether nuclear fuel assurance has been a legitimate concern in the past. The experts were wrong — it most certainly has.

For example, it became a major issue in the 1970s when, among other disruptive developments, the United States implemented a series of changes in enrichment services contracting policy that dramatically undermined global confidence in its reliability as a supplier of enriched uranium. The effect was to “increase the pace of commitments to plutonium fuels, breeder reactors, and indigenous enrichment and reprocessing plants,” particularly in Western Europe, where Urenco and Eurodif were taking shape.

That quote comes from a masterful 1979 MIT Energy Laboratory study conducted for DOE by Thomas L. Neff and Henry D. Jacoby, entitled Nuclear Fuel Assurance—Origins, Trends, and Policy Issues. The study really captures the prevailing sentiment during this key historical period:

The evolution of commercial nuclear power and nuclear fuel supply internationally has been characterized by interdependent changes in technological, political and commercial dimensions. What was once a world in which the U.S. was the dominant force in all three dimensions—the major source of technology and fuel supplies as well as political leadership in spreading atomic power and controlling it—is now a world in which these powers must be shared with other states whose balance of interests is not necessarily the same as that of the United States. Other industrialized countries have developed their own domestic nuclear industries—first reactors and now enrichment and other fuel cycle services—thus reducing U.S. involvement and influence abroad. New suppliers have also begun to compete with the United States in the remaining export markets, notably the developing countries; this competition has been made more intense by the need to find external markets for nuclear industries whose domestic markets are threatened by public opposition or other difficulties. In addition, the rising expectations and desires for autonomy of the developing world have altered their traditional relationships with industrialized countries.

These changes have been paralleled by a new awareness of the importance of secure energy supplies to national health and security, engendered, initially, by the oil embargo and price increases of 1973-74. The countries of Western Europe and Japan—whose established economies are critically dependent on energy which is largely imported—and the developing countries—whose hopefully rapid growth is dependent on increasing energy supplies—were also more strongly affected than the U.S. by multiple failures and growing pains of the nuclear fuel supply system over the past five years.

Thus, while insecurity of fossil fuels was intensifying interest in nuclear power, there were increasing concerns about the security of nuclear fuel supply. In part these were due to conventional market development problems but they also reflected the changing political and commercial relationships between the United States and its traditional nuclear customers. Both have been responsible for the drive for nuclear autonomy represented by acquisition of LWR fuel cycle facilities and development of plutonium breeders.

This study is required reading for anybody interested in nuclear fuel assurance.

Addendum: For more on the chaotic nuclear fuel market of the 1970s, I also recommend Neff’s book-length analysis, The International Uranium Market (1984), Edward F. Wonder’s Nuclear Fuel and American Foreign Policy (1977), William Walker and Måns Lönnroth’s Nuclear Power Struggles (1983), and Michael J. Brenner’s Nuclear Power and Non-Proliferation—The Remaking of U.S. Policy (1981). Paul Joskow provides an excellent overview of the 1975 Westinghouse debacle in Commercial Impossibility, the Uranium Market and the Westinghouse Case (6 J. Legal Stud. 119 [1977]).

Comment [8]