Eliminating Nuclear Threats

A Practical Agenda for Global Policymakers



GARETH EVANS and YORIKO KAWAGUCHI CO-CHAIRS                    Commission Members

10. Strengthening Non-Proliferation Disciplines Outside the NPT

Non-NPT Treaties and Mechanisms

10.1     While the Nuclear Non-Proliferation Treaty (NPT) is the cornerstone of the global non-proliferation regime, it is absolutely not the whole structure. A large and growing number of inter-related and mutually reinforcing legal instruments, institutions, programs, initiatives and arrangements complement the NPT and its associated IAEA safeguards system. Although most them rarely if ever make news or capture the attention of high-level political leaders, and they vary in their individual effectiveness, these instruments and arrangements collectively make a major contribution to the non-proliferation cause. Part of their significance is that the great majority of them are of universal, or potentially universal, application, and therefore embrace, or are capable of embracing, those states who remain outside the NPT (See Box 10-1).

10.2     Most of the treaties and mechanisms relevant here are discussed separately elsewhere in this report, notably the Comprehensive Nuclear-Test-Ban Treaty (CTBT) (Section 11), the proposed Fissile Material Cut-off Treaty (FMCT) (Section 12), specific measures focused on securing nuclear weapons, materials and technology from both potential terrorists and would-be state proliferators (Section 13), measures aimed at reducing or eliminating the proliferation risks associated with the expansion of civil nuclear energy (Sections 14 and 15), nuclear weapon free zones and associated measures designed to reinforce the non-proliferation norm in particular regional settings (Section 16), and – more indirectly – measures like the Missile Technology Control Regime focused on limiting the availability of certain delivery systems (Section 2). Two additional mechanisms not discussed elsewhere, however, deserve attention here: the Nuclear Suppliers Group and the Proliferation Security Initiative.

10.3     Nuclear Suppliers Group (NSG). Much of the day-to-day multilateral implementation of non-proliferation norms falls to this informal arrangement of 46 nuclear supplier states that seeks to prevent, through the coordination of national export controls, the transfer of equipment, materials and technology that could contribute to nuclear weapons programs in states other than those recognized as nuclear-weapon states in the framework of the NPT.

10.4     Built on the foundations laid by an earlier informal group, the Zangger Committee (named after its inaugural Swiss chairman), which continues to maintain a “trigger list” identifying nuclear-related strategic goods, the NSG was founded in 1974 in response to the Indian nuclear test earlier that year, which demonstrated that certain non-weapons specific nuclear technology could be readily turned to weapons development, and showed the need to further limit the export of nuclear equipment, materials and technology. The NSG rules forbid nuclear trade with a country which is not party to the NPT, apart from the highly controversial “India exception” agreed by the NSG in September 2008 pursuant to the U.S.–India agreement, discussed below.

10.5     The NSG has critics as well as supporters. One criticism – frequently voiced since the India agreement – is that members may be driven by commercial incentives to be less rigorous in their approach to countries not applying comprehensive safeguards or not party to the NPT. Another more longstanding complaint is that the NSG restricts legitimate trade with states which are in full compliance with the NPT: similar criticisms are made of other export control groups such as the Australia Group in the chemical and biological weapons context. Another concern, from a different perspective, is that the NSG depends on the voluntary application of the export controls of its members, and that its decisions are made by consensus: these factors are seen as limiting capacity for agreement on both the countries which should be denied exports, and measures by members (in practice more or less limited to diplomatic pressure) to enforce compliance. Given its important role in the overall non-proliferation regime, it is important that the NSG heed these criticisms and do its utmost to maintain both its effectiveness and credibility.

10.6     The NSG-India Agreement. The NSG’s credibility has been put most at risk by its decision in September 2008 to exempt India from rules barring nuclear cooperation with states outside the NPT that do not accept international safeguards on all of their nuclear facilities. The United States and India instigated this change, strongly encouraged by France and Russia, which welcomed the opportunity for nuclear commerce with India. Any one of the NSG’s 46 member states could have blocked the exemption, because the group operates by consensus. Several wanted to, but none did, due largely to commercial interests in India and political pressure from the United States.


BOX 10-1

Major Non-Proliferation Measures Complementing the NPT

Limits on nuclear weapons testing and production of fissile material

  • Comprehensive Nuclear-Test-Ban Treaty (CTBT)

  • Proposed Fissile Material Cut-off Treaty (FMCT)

Nuclear export controls

  • Restraints on the supply of sensitive nuclear technology, largely coordinated by the Nuclear Suppliers Group (NSG)

Cooperative law enforcement

  • Coordination of national activities, including through the Proliferation Security Initiative (PSI)

Information and intelligence sharing

  • National intelligence activities, and information-sharing between governments and with the IAEA

Security measures designed to prevent terrorism and proliferation

  • Convention on the Physical Protection of Nuclear Material 1987 and its 2005 amendment

  • Security Council Resolution 1540of 2004, requiring all states to criminalize the proliferation of WMD to non-state actors, apply strict export controls on sensitive technologies and secure sensitive materials

Measures designed to eliminate proliferation risks associated with the expansion of civil nuclear energy

  • Development of proliferation-resistant fuel cycle technologies

  • Endeavours to multilateralize key stages of the nuclear fuel cycle

Nuclear weapon free zones

  • Establishment and further development of weapons of mass destruction free zones and associated regional and bilateral arrangements

Other security and arms control arrangements

  • Including endeavours to curb missile proliferation like the Missile Technology Control Regime (MTCR)


10.7     The main substantive problem with the deal is that it removed all non-proliferation barriers to nuclear trade with India in return for very few significant non-proliferation and disarmament commitments by it. The view was taken that partial controls – with civilian facilities safeguarded – were better than none. But New Delhi was not required, for example, to commit to sign the CTBT or to undertake a moratorium on production of fissile materials for nuclear weapons, either unilaterally or even upon reciprocation by Pakistan and China. This accommodation of India has tended to generate resentment among many states over the special treatment afforded to one, and to encourage others, including North Korea and Iran, to believe they should or would be forgiven if they acquire nuclear weapon capabilities. And within the NSG, the experience of relaxing enforcement for India over the objections of non-proliferation bureaus has weakened confidence in the integrity and enforceability of the non-proliferation regime.

10.8     Pakistan and Israel would no doubt want the same terms New Delhi received in any cooperation deal with them. This could be possible if the NSG were to develop a criteria-based approach to cooperation with states that never signed the NPT: what would be involved would not be an exemption from old rules, but the establishment of new ones. Beyond ratification of the CTBT and being willing to end unsafeguarded fissile material production, such criteria could include a strong record of securing nuclear facilities and materials and maintaining controls on nuclear-related exports; rigorous sustained efforts to prevent terrorists from operating on their soil and to cooperate with international counter-terrorism activities; and a demonstrable economic need for peaceful nuclear cooperation.

10.9     Pakistan and Israel could choose to meet these criteria at any time and become eligible for nuclear cooperation. If they preferred rather to wait until all other states had implemented these measures, or their regional security environment had markedly improved, they could do so understanding they would not receive nuclear cooperation meanwhile. The U.S., Russia, France and other states could in the meantime urge India to ratify the CTBT and end fissile material production for weapons. If and when India did so, the standards set for India, Pakistan and Israel would be the same, and the distortion created by the NSG-India deal would be corrected.

10.10     Proliferation Security Initiative (PSI). This was launched by the U.S. in May 2003, with the purpose of interdicting ships, aircraft and vehicles suspected of carrying nuclear and other weapons of mass destruction, ballistic missiles and related technologies to or from countries of proliferation concern. Participating states – now numbering over 95 – claim a right to detain and search suspect shipments as soon as they enter into their territory, territorial waters or airspace, but it remains unclear just how far some of them support the initiative in general terms, as distinct from specific interdictions which interest them. Support is particularly weak in Asia. With the U.S. usually unwilling to share relevant intelligence, and interdictions usually cloaked in secrecy, there is little objective way to measure success or failure.

10.11     A number of states question the legal validity of the PSI, particularly cases where the goods being transported are dual use items which have peaceful civilian, as well as possible WMD, uses. China, for instance, argues that the PSI is in direct contravention of the UN Convention on the Law of the Sea which guarantees the free transit or “innocent passage” of ships on the high seas. Since trading in WMD is not directly prohibited by international law, it is not possible to equate ships carrying such goods with pirate vessels or slave ships which can be stopped and boarded under international law. U.S. officials have tended to respond to these concerns with general assertions that current national and international laws provide a sufficient basis for the initiative, and by saying that the longer term objective is, in any event, to have all countries enacting and strictly enforcing export control laws so as to make the PSI unnecessary. Others have suggested putting the matter beyond doubt through a UN Security Council resolution expressly permitting the interception of WMD shipments in international waters or airspace.

10.12     Bringing the PSI into the UN system and providing a budget for it would rectify many of its perceived shortcomings and in the long run improve its effectiveness. The PSI’s reach and effectiveness could also be improved by eliminating double standards, increasing transparency, and establishing a neutral organization to assess intelligence, coordinate and fund activities, and make recommendations or decisions regarding specific or generic interdictions— of a kind perhaps modelled on the committee set up to oversee implementation of UN Security Council Resolution 1540 (discussed in Section 13).


Recommendations on Non-NPT Treaties and Mechanisms

15. The Nuclear Suppliers Group (NSG) should develop a criteria-based approach to cooperation agreements with states outside the NPT, taking into account factors such as ratification of the CTBT, willingness to end unsafeguarded fissile material production, and states’ record in securing nuclear facilities and materials and controlling nuclear-related exports. [10.3–9]

16. The Proliferation Security Initiative (PSI) should be reconstituted within the UN system as a neutral organization to assess intelligence, coordinate and fund activities, and make both generic and specific recommendations or decisions concerning the interdiction of suspected materials being carried to or from countries of proliferation concern. [10.10–12]


Applying Equivalent Obligations to States now Outside the NPT

10.13     One of the greatest challenges to creating a world free of nuclear weapons is the non-signature by India, Pakistan and Israel of the NPT and, their non-subjection as a result to the legal obligations and commitments of either nuclear-weapon states or non-nuclear-weapon states under that treaty, and their production of unsafeguarded fissile material – and nuclear weapons. The rest of the world calls for these three states to join the NPT as non-nuclear-weapon states and thereby make the treaty universal (treating North Korea for this purpose as a lapsed rather than non-member). But they are unwilling to join the NPT on this basis and cannot be forced to do so. Nor is there any constituency for them joining as nuclear-weapon states: the procedures for amending the NPT to allow such a change almost guarantees that this will not happen.

10.14     Given this stalemate, the practical question is how to induce these three states to uphold non-proliferation and disarmament norms and practices at least as rigorous as those accepted by nuclear-weapon states under the NPT, even though they will not formally receive the legitimacy of the recognized nuclear-weapon states. India, Pakistan and Israel each have different motivations and decision-making considerations, but for the purposes of strengthening the global nuclear order it is important that they commit themselves to internationally recognized standards in relation to non-proliferation, and become no less committed to disarmament than the original five nuclear-weapon states.

10.15     In the absence of a solution in the foreseeable future for the NPT stalemate, one way of bringing the “three elephants” into the same room as everyone else might be to start again from the beginning with a new, comprehensive treaty arrangement, that would set both non-proliferation and, as relevant, disarmament commitments for all states irrespective of their status under the NPT. But while a new all-embracing “Nuclear Weapons Convention” of this kind has, as discussed elsewhere in this report, many attractions, and will clearly be a necessary accompaniment to the final stages of any move to a nuclear weapon free world, those attractions do not extend to the ease or speed with which its terms will be able to be negotiated. The need for the three to become integrated into the global nuclear order to the greatest extent possible is too urgent and important to wait upon that process.

10.16     The only available option, given these realities, is to multiply the number of parallel instruments and arrangements, alongside the NPT, in which the three participate. For the great majority of the treaty and other mechanisms described or referred to above – including centrally important ones like the CTBT and FMCT – membership in the NPT is not a requirement, and non-membership of that treaty not an obstacle. India, Pakistan and Israel could and should demonstrate their commitment by going down this path. Israel already exercises stringent controls over its nuclear materials, technology and know-how and has signed relevant international conventions on these issues; it has also signed (though not ratified) the CTBT, unlike India and Pakistan. There is widespread speculation that it has already ended fissile material production, but equally it may be no less reluctant than India and Pakistan to close off this option without seeing major improvements in its security environment: either way, it should be put under pressure to do so.

10.17     It is not unthinkable, as part of this general approach, that bilateral or multilateral agreements be signed with any of the three allowing them access to nuclear materials and technology on the same basis as any NPT member provided they satisfied certain objective criteria showing their general commitment to disarmament and non-proliferation, and signed up to specific future commitments in this respect. As discussed above, the India-U.S. agreement, as subsequently endorsed by the NSG, is a very unfortunate precedent in this respect. While it is highly unlikely that the NSG will now agree to a similar deal for Pakistan and Israel, if one were to be contemplated the Indian agreement will make it considerably more difficult to extract stronger terms than those won by India. But the NSG should insist on nothing less, including ratification of the CTBT, and moratoria on unsafeguarded production of fissile materials pending negotiation of a fissile material production cut-off treaty.

10.18     The most feasible way to integrate India, Pakistan and Israel into the international non-proliferation order may in fact be through a global disarmament process of the kind discussed later in this report, in Sections 17 and 18: this strategy can be pursued independently of formal NPT forums that exclude India, Pakistan and Israel, but is consistent with the ultimate objectives of the treaty. By definition, global nuclear abolition will not occur unless and until these three states have disarmed. And these three states will not eliminate their nuclear deterrents unless and until China, the U.S. and others have done so, and concerns like those generated by the situations in Iran and North Korea have been eliminated. From the perspective of a realistic nuclear disarmament strategy, it makes no more sense to single out India, Pakistan or Israel and demand that they will disarm unilaterally than it does to expect that the U.S., Russia or China will do so. Conversely, it is reasonable to expect these three states to participate in multilateral nuclear disarmament negotiations and processes undertaken by the other nuclear-armed states.


Recommendations on Extending Obligations to Non-NPT States

17. Recognizing the reality that the three nuclear-armed states now outside the NPT – India, Pakistan and Israel – are not likely to become members any time soon, every effort should be made to achieve their participation in parallel instruments and arrangements which apply equivalent non-proliferation and disarmament obligations.

18. Provided they satisfy strong objective criteria demonstrating commitment to disarmament and non-proliferation, and sign up to specific future commitments in this respect, these states should have access to nuclear materials and technology for civilian purposes on the same basis as an NPT member. [10.17]

19. These states should participate in multilateral disarmament negotiations on the same basis as the nuclear-weapon state members of the NPT, and not be expected to accept different treatment because of their non-membership of that treaty. [10.18]


Next: 11. Banning Nuclear Testing