Interpreting The Nuclear Non Proliferation Treaty

The 1968 Nuclear Non-Proliferation Treaty is one of the most controversial instruments in international law. This text argues that countries with nuclear weapons misrepresent the Treaty to prevent other states from developing peaceful nuclear energy, holding back nuclear disarmament in the process.

The 1968 Nuclear Non-proliferation Treaty has proven the most complicated and controversial of all arms control treaties, both in principle and in practice. Statements of nuclear-weapon States from the Cold War to the present, led by the United States, show a disproportionate prioritization of the non-proliferation pillar of the Treaty, and an unwarranted underprioritization of the civilian energy development and disarmament pillars of the treaty. This book argues that the way in which nuclear-weapon States have interpreted the Treaty has laid the legal foundation for a number of policies related to trade in civilian nuclear energy technologies and nuclear weapons disarmament. These policies circumscribe the rights of non-nuclear-weapon States under Article IV of the Treaty by imposing conditions on the supply of civilian nuclear technologies. They also provide for the renewal and maintaintenance, and in some cases further development of the nuclear weapons arsenals of nuclear-weapon States. The book provides a legal analysis of this trend in treaty interpretation by nuclear-weapon States and the policies for which it has provided legal justification. It argues, through a close and systematic examination of the Treaty by reference to the rules of treaty interpretation found in the 1969 Vienna Convention on the Law of Treaties, that this disproportionate prioritization of the non-proliferation pillar of the Treaty leads to erroneous legal interpretations in light of the original balance of principles underlying the Treaty, prejudicing the legitimate legal interests of non-nuclear-weapon States.

As currently interpreted, it is difficult to see why the Nuclear Nonproliferation Treaty (NPT) warrants much support as a nonproliferation convention. Most foreign ministries, including that of Iran and the United States, insist that Article IV of the NPT recognizes the "inalienable right" of all states to develop "peaceful nuclear energy." This includes money-losing activities, such as nuclear fuel reprocessing, which can bring countries to the very brink of acquiring nuclear weapons. If the NPT is intended to ensure that states share peaceful "benefits" of nuclear energy and to prevent the spread of nuclear bomb making technologies, it is difficult to see how it can accomplish either if the interpretation identified above is correct. Some argue, however, that the NPT clearly proscribes proliferation by requiring international nuclear safeguards against military diversions of fissile material. Unfortunately, these procedures, which are required of all non-nuclear weapons state members of the NPT under Article III, are rickety at best. Each chapter of this book is dedicated to clarifying the NPT's key ambiguities, and the chapters are roughly structured to trace the NPT's text, article by article. The analysis set forth here was mostly written or commissioned by the Nonproliferation Policy Education Center. Much more, of course, could have been included in this book. But rather than seeking to be comprehensive, the aim throughout is to provide a guide for both policymakers and security analysts. This guide should assist in navigating the most important debates over how best to read and implement the NPT and, in the process, spotlighting alternative views of the NPT that are sound and supportable. Related products: Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2016 can be found here: https: //bookstore.gpo.gov/products/sku/044-000-02684-8 The Warsaw Pact, Treaty of Friendship, Cooperation and Mutual Assistance: Soviet-East European Military Relations in Historical Perspective: Sources and Reassessments can be found here: https: //bookstore.gpo.gov/products/sku/041-015-00306-2 Moving Beyond Pretense: Nuclear Power and Nonproliferation can be found here: https: //bookstore.gpo.gov/products/sku/008-000-01098-6

This third volume of the book series on Nuclear Non-Proliferation in International Law focuses on the development and use of nuclear energy for peaceful purposes within a contemporary global context, an interdependent characteristic of the Non-Proliferation Treaty along with disarmament and non-proliferation. The scholarly contributions in this volume explore this interrelationship, considering the role of nation States as well as international organizations such as the International Atomic Energy Agency (IAEA) in monitoring and implementing the Treaty. The 2015 Nuclear Accord with Iran and its implementation is also discussed, highlighting relevant developments in this evolving area. Overall, the volume explores relevant issues, ultimately presenting a number of suggestions for international cooperation in this sensitive field where political discussion often dominates over legal analysis. The important tasks of limiting the proliferation of nuclear weapons, ensuring the safety and security of peaceful uses of nuclear energy, and achieving nuclear disarmament under strict and effective international control, calls for the interpretation and application of international legal principles and rules in their relevant context, a task that this book series endeavours to facilitate whilst presenting new information and evaluating current developments in this area of international law. Jonathan L. Black-Branch is Dean of Law and Professor of International and Comparative Law at Robson Hall, Faculty of Law, University of Manitoba; a Barrister at One Garden Court, London; a Magistrate in Oxfordshire; a Justice of the Peace for England & Wales; a Member of Wolfson College, University of Oxford; and Chair of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law. Dieter Fleck is Former Director International Agreements & Policy, Federal Ministry of Defence, Germany; Member of the Advisory Board of the Amsterdam Center for International Law (ACIL); and Rapporteur of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law.

This second Volume in the book Series on Nuclear Non-Proliferation in International Law discusses the legal interpretation and implementation of verification and compliance with the Treaty of the Non-Proliferation of Nuclear Weapons, 1968; the Comprehensive Nuclear Test-Ban Treaty, 1996; and the Treaty establishing the European Atomic Energy Community (EURATOM), 1957. It specifically examines the question, contested in recent academic writings, whether the International Atomic Energy Agency (IAEA) is competent to verify not only the correctness, but also the completeness of national declarations. Topical legal issues of verification and its technical and political limits as well as peaceful settlement of disputes and countermeasures are discussed in-depth. The Series on Nuclear Non-Proliferation in International Law provides scholarly research articles with critical commentaries on relevant treaty law, best practice and legal developments, thus offering an academic analysis and information on practical legal and diplomatic developments both globally and regionally. It sets a basis for a further constructive discourse on the topic at both national and international levels. A Third Volume, to be published in Autumn 2016, will focus on legal issues of safety and security of the use of nuclear energy for peaceful purposes. Jonathan L. Black-Branch is Professor of International Law, Royal Holloway University of London; a Member of Wolfson College, Oxford; Chairman of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law. Dieter Fleck is Former Director International Agreements & Policy, Federal Ministry of Defence, Germany; Member of the Advisory Board of the Amsterdam Center for International Law (ACIL); Honorary President, International Society for Military Law and the Law of War; Rapporteur of the ILA Committee on Nuclear Weapons, Non-Prolife ration and Contemporary International Law.

The Treaty on the Nonproliferation of Nuclear Weapons (NPT), is the cornerstone of non-proliferation and disarmament efforts. Yet its negotiation and success were not inevitable. This book aims to address the developments that led to the negotiation of the treaty, examine its implementation, and address challenges that the NPT faces going forward.

As currently interpreted, it is difficult to see why the Nuclear Nonproliferation Treaty (NPT) warrants much support as a nonproliferation convention. Most foreign ministries, including that of Iran and the United States, insist that Article IV of the NPT recognizes the "inalienable right" of all states to develop "peaceful nuclear energy." This includes money-losing activities, such as nuclear fuel reprocessing, which can bring countries to the very brink of acquiring nuclear weapons. If the NPT is intended to ensure that states share peaceful "benefits" of nuclear energy and to prevent the spread of nuclear bomb making technologies, it is difficult to see how it can accomplish either if the interpretation identified above is correct. Some argue, however, that the NPT clearly proscribes proliferation by requiring international nuclear safeguards against military diversions of fissile material. Unfortunately, these procedures, which are required of all non-nuclear weapons state members of the NPT under Article III, are rickety at best. The International Atomic Energy Agency (IAEA) nuclear inspections, which are intended to detect illicit nuclear activities and materials, certainly have a mixed record. Not only has the IAEA failed to find existing covert reactors and fuel-making plants, which are critical to bomb making, the agency still cannot assure the continuity of inspections for spent and fresh reactor fuels that could be processed into bomb usable materials at roughly two-thirds of the sites that it currently inspects. What is easily as worrisome is that even at declared nuclear fuel-making sites the IAEA routinely loses count of many bombs worth of production each year. Finally, in the practical world, the NPT hardly admits of modification and is far too easy for violating states to withdraw from. Under Article X, treaty members are free to leave the NPT with no more than 3 months notice merely by filing a statement of the "extraordinary events [relating to the subject matter of the treaty] it regards as having jeopardized its supreme interests." As demonstrated by North Korea with its withdrawal from the NPT, these slight requirements are all too easy to meet. As for amending the treaty, it is nearly impossible. Not only must a majority of NPT members ratify any proposed amendments, but every member of the IAEA government board and every NPT nuclear weapons state member must ratify the proposal as well, and this is only to get amendments for consideration by those states that have not yet ratified the NPT. Ultimately, any state that chooses not to so ratify is free to ignore the amendment, and therefore the treaty is functionally incapable of being amended. For all of these reasons, the NPT is not just seen as being weak against violators and difficult to improve, but it is seen effectively as a legal instrument that enables nations to acquire nuclear weapons technology. Consequently, each chapter of this book is dedicated to clarifying the NPT's key ambiguities, and the chapters are roughly structured to trace the NPT's text, article by article. The analysis set forth here was mostly written or commissioned by the Nonproliferation Policy Education Center. Much more, of course, could have been included in this book. But rather than seeking to be comprehensive, the aim throughout is to provide a guide for both policymakers and security analysts. This guide should assist in navigating the most important debates over how best to read and implement the NPT and, in the process, spotlighting alternative views of the NPT that are sound and supportable.

As currently interpreted, it is difficult to see why the Nuclear Nonproliferation Treaty (NPT) warrants much support as a nonproliferation convention. Most foreign ministries, including that of Iran and the United States, insist that Article IV of the NPT recognizes all states' "inalienable right" to develop "peaceful nuclear energy."1 This includes money-losing activities, such as nuclear fuel reprocessing, which can bring countries to the very brink of acquiring nuclear weapons. If the NPT is intended to ensure that states share peaceful "benefits" of nuclear energy and prevent the spread of nuclear bomb making technologies, it is difficult to see how it can accomplish either if the interpretation above is correct. Some argue, however, that the NPT clearly proscribes proliferation by requiring international nuclear safeguards against military diversions of fissile material. Unfortunately, these procedures, which are required of all non-nuclear weapons state members of the NPT under Article III, are rickety at best. The International Atomic Energy Agency (IAEA) nuclear inspections, which are intended to detect illicit nuclear activities and materials, certainly have a mixed record. Not only has the IAEA failed to find existing covert reactors and fuel-making plants, which are critical to bomb making, the agency still cannot assure the continuity of inspections for spent and fresh reactor fuels that could be processed into bomb usable materials at roughly two-thirds of the sites that it currently inspects. What is easily as worrisome is that even at declared nuclear fuel-making sites, the IAEA routinely loses count of many bombs' worth of production each year. Finally, in the practical world, the NPT hardly admits of modification and is far too easy for violating states to withdraw from. Under Article X, treaty members are free to leave the NPT with no more than 3 months notice merely by filing a statement of the "extraordinary events [relating to the subject matter of the treaty] it regards as having jeopardized its supreme interests." As North Korea demonstrated with its withdrawal from the NPT, these slight requirements are all too easy to meet. As for amending the treaty, it is nearly impossible. Not only must a majority of NPT members ratify any proposed amendments, but every member of the IAEA government board and every NPT nuclear weapons state member must ratify the proposal as well, and this is only to get amendments for consideration by those states that have not yet ratified the NPT. Ultimately, any state that chooses not to so ratify is free to ignore the amendment, and the treaty is functionally unamendable. For all of these reasons, the NPT is not just seen as being weak against violators and difficult to improve, but it is seen effectively as a legal instrument that enables nations to acquire nuclear weapons technology. Former President George W. Bush highlighted this in a February 2004 nuclear nonproliferation speech in which he argued that the NPT had created a "loophole" in promoting all aspects of civilian nuclear technology including nuclear fuel making. This allowed proliferating states to "cynically manipulate" the treaty to develop and acquire nearly all the technology and materials they needed to make nuclear weapons. President Bush attempted to shore up the NPT by calling on the world's non-weapons states that have not yet developed nuclear fuel making to foreswear such activities and to allow more intrusive civilian nuclear inspections in exchange for their assured access to nuclear fuel from those states now producing enriched uranium.