GLOBAL ACTION TO PREVENT WAR
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Comment on President Bush’s February 11 Speech on Proliferation
By Jonathan Dean
Several of the measures proposed by President Bush in his February 11 speech at the National Defense University on tightening the non-proliferation regime are useful. Some of the other measures raise questions as to their effectiveness.
In the first category of useful measures is expanding the current Nunn-Lugar program (measure #3) to intensify long-standing U.S. efforts to complete the phasing-out of use of weapons-grade uranium in research reactors. Measure #6, creation of a special committee of the IAEA Board of Governors to focus on safeguards and verification, would presumably enable more rapid and effective Board decisions without the obstruction of developing country representatives on the Board, who sometimes try to use debate on pending IAEA decisions to further their broader political agenda, for example, to bring pressure on the U.S. and other weapons states to be more active in eliminating their own nuclear weapons or to be more generous in assisting nuclear projects of developing countries. But, for the same reason, it will not be easy to get a decision to establish that committee. The President’s final measure, to exclude proliferation violators from the IAEA Board of Governors and from the new Safeguards Committee, appears desirable, but may run into the same difficulties from developing country representatives on the Board.
The President suggested (measure #1) that countries supporting the Proliferation Security Initiative – there appear to be fourteen members now (Australia, Canada, France, Germany, Italy, Japan, the Netherlands, Norway, Poland, Portugal, Singapore, Spain, the UK and the U.S.) -- take direct action to arrest participants in proliferation networks and seize their materials, as well as interdicting their land, air or sea shipments of materials. The international law basis for this entire project is scanty; its objective is reasonable, but it has the flavor of a vigilante operation related to the preemption policy.
If these actions are confined to national territories, national air space, and territorial waters of participant states with domestic legislation that makes WMD materials contraband and subject to seizure, and to aircraft and vessels that are owned or registered by participant states and thus fall under their jurisdiction, there may be a legal basis for action. However, neither vessels or aircraft in international waters or international airspace owned by countries not participating in the Initiative nor the territory of these countries would be covered. Moreover, the Law of the Sea Treaty provides for peaceful passage of territorial waters even of countries that belong to the Initiative. Countries like China are likely to be apprehensive about possible inroads on their sovereignty from this measure and to resist it.
The President urged (measure #2) rapid passage by the Security Council of the draft resolution submitted by the U.S. on December 16, 2003, to ban proliferating transfers to individuals and groups. This is a useful measure, as long as the materials are clearly identified by the Nuclear Suppliers Group as sensitive and as long as it is clearly understood to cover transfers by the non-NPT states, India, Pakistan and Israel, which would not be prohibited by its present formulation from trading with each other or with any other state. Even though NPT member states are prohibited from accepting nuclear weapons materials, this has presumably not stopped North Korea, Iran or Libya.
In his speech, President Bush suggested (measure #4) that no additional countries should be permitted to buy enrichment or reprocessing equipment which can produce fissionable material beyond those who already possess it. Presumably, the Nuclear Suppliers Group would have to agree that its members would not transfer this equipment to these states. However, Article IV of the Non-Proliferation Treaty gives participants an unalienable right to use nuclear energy for peaceful purposes and thus could be the basis of many lawsuits. The President did not give details of this measure, but said arrangements would be made to provide assured delivery of nuclear fuel to such countries and to remove their nuclear waste.
This measure can be seen as a small first step toward coping with a much larger problem. It is not likely to apply to many countries. It would only fit countries that have nuclear reactors, but no enrichment or reprocessing plants, or countries that have no nuclear energy reactors as yet. The measure would not apply to countries which already have enrichment or reprocessing capacity, presumably most of the forty states listed by the IAEA in the annex of the Comprehensive Test Ban Treaty as states whose ratification is necessary for that Treaty to come into effect. It is the states in this group which represent the current danger. They might withdraw from the NPT and rapidly begin to produce nuclear weapons, or covertly produce fissionable material.
For this reason, IAEA Director-General Dr. ElBaradei has repeatedly suggested that all existing enrichment and reprocessing plants be placed under some form of international control. For this to happen, some new international entity would have to be established or the competence of the IAEA greatly expanded. It would in any event probably take many years to carry out this project. It is very unlikely that states with existing enrichment or reprocessing plants would agree to close and dismantle them in order to receive fuel supplies from a few large producers like the U.S., France and Russia, supplies which could be cut off for political reasons. This concern is why Japan has insisted on having breeder reactors for its nuclear plants. In short, the President’s proposal on this subject will cause friction with developing countries without resolving the main problem.
To get leverage for broader acceptance of the Additional Safeguards Protocol, a useful objective, the President suggests (measure #5) that only those states that have ratified the 1997 Additional Safeguards Protocol expanding IAEA inspection rights for nuclear activities on their territory should be allowed to import equipment for civilian nuclear programs. Implementing this suggestion would require the cooperation of the members of the Nuclear Suppliers Group, which may not be automatic, and also the willingness of the 150 NPT signatory states which have not yet ratified the Additional Protocol to have their rights to free access to peaceful nuclear technology under Article IV of the Non-Proliferation Treaty curtailed, at least on paper.
As regards the Additional Protocol, the U.S. has not yet ratified it and some opposition to it has been expressed by Members of Congress apprehensive about unlimited IAEA inspections on U.S. soil. If the U.S. does ratify, only its non-military reactors will, as in the case of the UK, France, Russia and China, be open to inspection. There will, with minor exceptions, be no IAEA inspection of nuclear plants in India, Pakistan and Israel. These objections to the President’s plan will be raised by some non-weapon states.
On the four presidential proposals described above, I have proposed Security Council resolutions: (1) making mandatory the acceptance of the Additional Protocol by all NPT parties; (2) “legalizing” the Proliferation Security Initiative and permitting it to operate on the high seas and international air space; (3) protracting the withdrawal period from the Non-Proliferation Treaty from 90 days to five years to permit the international community full opportunity to influence the withdrawing party; (4) a new international authority to supervise existing enrichment and reprocessing plants whose ownership would remain as it is; (5) expanding the language in U.S.-proposed Security Council resolution prohibiting transfer of sensitive material to cover transfers from all UN member states to other states as well as to individuals and groups.
I also propose a conference among all eight countries known to have nuclear weapons – U.S., UK, France, China, Russia, India, Pakistan and Israel – to try to devise obligations which will cover all of these governments, including those of India, Pakistan and Israel, in order to bring the nuclear arsenals of these three governments under some form of international control. (Details in my memo of February 11, 2004).