James ActonWhat Does Article IV Mean?

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.

Comments

  1. ataune (History)

    There are Have Nots partie to the NPT which had (and still are) enriching uranium, this answers your first question.

    Korea, Brazil and even Japan, if I’m correct, are among the one that, at least recently, have been found in “breach” of their safeguards and still either enriching uranium or treating plutonium as combustible. This answers your second question.

  2. FSB

    James,
    you ask:
    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?”

    That is a legit question, but the point is that if one non-NWS is permitted (or not forbidden let’s say) under NPT to enrich U then others are also.

    Since Brazil is allowed, so is Iran, just to pick a random example

  3. scud

    Oh hi FSB, what a surprise to see you here. So let’s say it once and (maybe not) for all: in itself, it is not illegal at all for Iran to enrich uranium.

    The problems are (a) whether enrichment is an “inalienable right” (as Tehran claims, but you may want to red Shaker on this) (b) whether Iran has forfeited its Article IV rights by conducting activities which don’t pass the Foster criteria.

    See ya

  4. Major Calloway (History)

    Slow news day I guess!

    Just because it’s become unpalatable to some that particular states are engaging in reprocessing or enrichment doesn’t affect their right to do so under the NPT.

    The NPT gives signatories explicit rights, that it doesn’t specifically mention particular technologies shouldn’t be considered for one moment to suggest that the NPT prohibits such an activity.

    Yes, as FSB says, there are haves and have nots under the NPT, but as far as enrichment and reprocessing are concerned, all are equal. To extend his argument, if any state (NWS or NNWS) is allowed to enrich or reprocess then all are, and indeed they are.

    However, just because enrichment and/or reprocessing are not prohibited by the treaty doesn’t mean that one sovereign state can’t object to another undertaking these activities. It simply means that they shouldn’t muddy the waters and suggest that the activities are contrary to the treaty and try to use this as justification for their arguments.

    I have great difficulty with the Rousseau-esque suggestion of a social contract between states. On what grounds do sovereign nations not have absolute freedom to do what the heck they like so long as this is consistent (or not inconsistent) with international undertakings that they themselves have explicitly entered into?

    But, hey, I guess that makes me an arublovingoddamcommiepinkoqueer, to [only marginally] exaggerate the view of the head of security of one of my former employers.

  5. FSB

    scud,
    old chap, perhaps you didn’t read James’ post: eg. the part that sez

    “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).”

    so (ii) is not possible and (i) is violated by a bunch of countries which are still allowed to enrich U. Therefore, Iran should be permitted to enrich U.

    Q.E.D. and off I go the B.B.Q.

    (read the link in my post above for further clarifications)

  6. KB

    scud;

    1. “Whether enrichment is an “inalienable right”” or not is defined by countries themselves not even by treaty. If you want to make it a “ deniable right”, you better be prepared for NPT get scrapped.
    “The 1995 NPT Conference confirmed “that each country’s choices and decisions in [this] field (fuel cycle) should be respected without jeopardizing its policies or international cooperation agreements and arrangements … and its fuel-cycle policies”. “(http://www.iaea.org/Publications/Magazines/Bulletin/Bull373/priest.html)

    2. Inalienable means: unable to be removed or forfeited. Can you tell us where is “fortification” mentioned in NPT? (http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf)
    Even if Iran under safe guards (or any other country signatory of NPT) produces, stores and stockpiles fissionable materials is “not” in breach of treaty. Only and if only a country assembles a nuclear weapon, while it is a NPT member, is in breach. The way things get invented around NPT is not going to make it stronger.

  7. scud

    Ah, dear FSB, nice try – however, I was referring not to materials, but to weaponization activities (suspected by the discovery of the hemispheres casting document, but most importantly confirmed by what the IAEA calls the ‘alleged studies’, which are undoubtedly covered by Foster as “the production of components which would only have relevance to a nuclear explosive device”).

    Try again. But in addition to Shaker’s precious volumes, your mandatory reading list now includes the full collection of three years of IAEA reports. Also, don’t miss DDG Heinonen sexy PowerPoint presentation, which I’m sure you’ll be able to find.

  8. Andreas Persbo

    No one seems to actually read the language of article IV. The article itself does not afford any states any rights above those they already have.

    Read carefully, Article IV does not relate to a right, but to an additional obligation. It simply states that the right the state already has shall be exercised “in conformity with articles I and II” of the treaty. Here, the Foster critera, which hasn’t been challenged by anyone, is meant to by guiding us. When is State A’s behaviour not conforming to articles I or II?

    And no, the phrase ‘without discrimination’ does not create any new rights for states. It refers back to the principle of non-discrimination that has evolved in international law over hundreds of years. Just Google it, you’ll see what I mean.

    James’s second question is interesting, since the language of article IV would imply that State A’s conformity with article III doesn’t matter. The state parties to the NPT attempted to rectify this in 2000, when they in the final document agreed that states should be in conformity with article III as well, see Part A of the final document (para 53, p. 8, para 2, p. 8, and para 11, p. 12).

    Some argue that all final documents are legally binding. I don’t agree. The final documents have legal significance insofar they can be considered ‘agreements’. If so, the FD’s should act guiding when interpreting the treaty (see article 31.3(a) of the Vienna Convention on the Law of Treaties). Most NPT state parties seem to look at the FD’s as politically guiding, not law.

    In any case, the UNSC has decided, repeatedly, that Iran’s enrichment activities are temporarily prohibited. Whether or not that’s a good thing is up for debate, but the overwhelming majority of states in the meanwhile view the UNSC dictum as legally binding.

    With that, I’m off to the pub.

  9. Rwendland (History)

    An intriguing question is what Article IV.1 means for the development of submarine propulsion reactors, for a non-nuke armed submarine. This can hardly be a simple “peaceful purpose”, but nor is it contrary to Article II.

    As submarine propulsion reactors can reasonably use HEU, it is also perfect threshold positioning. It seems Brazil is working toward producing a submarine propulsion reactor.

  10. Lao Tao Ren (History)

    The NPT was negotiated in the days when many technologies currently in widespread commercial use are not readily available (e.g. ultra-centrifuges for enrichment).

    At the same time, the extensive use of electronics means the danger / risk from nuclear weapons extends to not only combatants, but neutral parties hundreds to tens of thousands of miles away.

    Environmental effects from the use of nuclear weapons, especially if it involved many warheads, certainly impact on the global environment regardless of neutral status of states.

    These are very good reasons for rethinking the NPT based on current “best available science”.

  11. kme

    I have always understood the unwritten subtext of the NPT to have been along the lines of “We, the NNWS, agree to forgo actual nuclear weapons development for now, but we reserve the right to build a break-out capacity to prepare for the event that the NPT breaks down”.

    The NPT becoming so nearly universal would hardly have been considered a forgone conclusion back in the days it was negotiated.

  12. hass (History)

    Acton is making a fundamental mistake. The right to enrichment is not granted by the NPT nor is it “conditional” on anything. The NPT merely recognizes the prexisting right, and signatories to the NPT merely agreed not to make nukes — and that is all. Other than making nukes, they retain their full nuclear rights. All countries start out with the sovereign right to do whatever they want in the nuclear field — including making nukes. Under the NPT some countries agreed (conditionally) to specifically to not make nukes and allow IAEA inspections, in return for certain concessions and promises from the “recognized 5” nuclear armed countries. The NPT does NOT make the NNWS nuclear rights “conditional” on anything and it cannot do so since the right precedes the NPT.

  13. hass (History)

    By the way, I suggest reading Elahe Mohtasham’s memorandum to the House of Commons on this particular issue:

    Historically on the very same day that the NPT came into force on 5 March 1970, the Federal Republic of Germany signed a tripartite international agreement with the United Kingdom and the Netherlands for the production of enriched uranium by the ultra-centrifuge method. Moreover, in the same year (1970), Germany started a pilot plant for the plutonium production. All these historical facts demonstrate the manner in which Germany interpreted its rights under the NPT. None of the signatories to the NPT objected to this German interpretation of its rights under the NPT in 1970. Such a practice, has already set a precedent for any future interpretations put on the NPT as far as the member states’ rights to have access to nuclear fuel cycle technologies is concerned.

  14. FSB

    The ultimate enforcer in this business is the NWSs club called the UNSC.

    Scrap the UNSC — or make the membership totally rotating — and we will see justice with respect to the true spirit of the NPT.

  15. hass (History)

    FSB – The UNSC cannot legally demand that any country give up enrichment. The resolutions with respect to Iran are ultra vires and void.

  16. Lao Tao Ren (History)

    @FSB

    How is changing the UNSC going to change anything when it is up to the membership with the means (military) to really enforce?

    What you are really saying is the premise of the UN based on sovereign states unwilling to give up power except in very limited circumstances is flawed.

  17. hass (History)

    People tend to gloss over the North-South dispute here:

    According to a 2004 analysis by the Center for Nonproliferation Studies but Bush’s GNEP “Many NPT state parties, particularly those from the Non-Aligned Movement (NAM), have already stated their opposition to President Bush’s specific proposals. In their view, precluding states from developing enrichment and reprocessing capabilities contradicts an important tenet of the NPT-that is, the deal made by the nuclear weapon states (NWS) to the non-nuclear weapon states (NNWS). Article IV of the NPT states that NNWS have the inalienable right to develop research, production, and use of nuclear energy for peaceful purposes, a right intended to provide an incentive for NNWS to give up the pursuit of nuclear weapons. The Bush proposals, however, introduce another element into the nonproliferation regime by segmenting countries into those that can engage in enrichment and reprocessing and those that cannot. Since most states with fuel cycle capabilities are from the developed world, it is clear that the target group of the proposal is the developing world.”

    Developing countries have consistently rejected efforts to place additional limits on the fuel cycle. The Final Document of the United Nations General Assembly resolution S-10/2 which was adopted at the 27th plenary meeting of the tenth special session on 30 June 1978 stated in paragraph 69 that “each country’s choices and decisions in the field of peaceful uses of nuclear energy should be respected without jeopardizing its policies or international cooperation agreements and arrangements for peaceful uses of nuclear energy and its fuel-cycle policies”. This was reiterated in the 1980 NPT Review and Extension Conference and has been consistently reiterated in every Review Conference since then, including the 1995 Review Conference215 and in the Final Document of the 2000 NPT Review Conference. The Final Document of the 10th Special Session of the United Nations General Assembly in 2002 also reiterated that non-proliferation measures should not be used to jeopardize the inalienable rights of all States to have access to and be free to acquire technology, equipment and materials for peaceful uses of nuclear energy, and that each country’s choices regarding nuclear fuel cycle policies should be respected.

Pin It on Pinterest