The
Nuclear Non-Proliferation Treaty (NPT) contains a provision
granting the right to all parties to the treaty to develop,
research, produce, and use nuclear energy. This provision is found
in Article IV of the NPT. The presence of this provision quite
properly raises questions about whether the central purpose of the
NPT, which is to stop the spread of nuclear weapons beyond the five
nuclear powers acknowledged by the treaty (China, France, Great
Britain, Russia, and the United States), is undermined.
Those who see the NPT as fatally flawed
argue that the exercise of this right by a non-weapons state allows
it to produce nuclear weapons with little or no chance that outside
observers will be given timely warning that the state in question
is actually pursuing a weapons capability. Indeed, some will go so
far as to argue that the NPT's right regarding nuclear energy is an
effective cover for a prohibited nuclear weapons program and
requires international assistance to the state in question in ways
that promote proliferation activities.
Nonproliferation vs. Right to Nuclear
Energy
In
my view, there is a natural tension in the NPT between its central
purpose of nonproliferation, and most particularly those provisions
found in Articles I and II, and the right to nuclear energy found
in Article IV. Further, I would concede that certain
interpretations of the NPT effectively undermine its central
purpose of nonproliferation. On the other hand, I do not regard the
language of the NPT as inherently contradictory. I arrive at the
latter conclusion for two fundamental reasons, although other
lesser reasons exist.
Reason No. 1: Article IV is a qualified
right.
The
first reason is that the right to nuclear energy granted by Article
IV is a qualified right. Its exercise is permitted only in the
context of "conformity with Articles I and II," which, as I
mentioned earlier, are the provisions in the NPT that bar nuclear
weapons proliferation. I believe that the clear reading of the NPT
compels the conclusion that a non-weapons state's right to nuclear
energy is subordinate to its obligation not to seek a weapons
capability. In short, the nonproliferation purpose of the NPT takes
precedence over the right to nuclear energy.
Reason No. 2: Nuclear energy is not an
entitlement.
The
second reason the language of the NPT is not inherently
contradictory is that the right to nuclear energy is not an
entitlement. The mere fact that a non-weapons state under the NPT
appears to be acting in conformity with its nonproliferation
provisions does not impose an obligation on other participating
states or the International Atomic Energy Agency (IAEA) to provide
any and all material and technological assistance to that state.
The NPT allows both would-be supplier states and the IAEA broad
discretion regarding what kind of assistance they will provide to a
non-weapons state.
Unfortunately, the accumulation of past
actions regarding the furnishing of material and technological
assistance to non-weapons states reveals movement in the direction
of treating such assistance as an entitlement. This slippage,
however, is not the result of an inherent problem with the NPT, and
the slippage can be reversed through the responsible exercise of
discretion in furnishing the assistance the treaty permits.
For
example, during a February 11, 2004, speech at the National Defense
University, President Bush announced that the U.S. supports a
policy of refusing to sell "enrichment and reprocessing equipment
and technologies to any state that does not already possess
full-scale, functioning enrichment and reprocessing plants." The
policy announced by President Bush does not violate the rights of
non-weapons states under Article IV of the NPT, which reflects the
discretion the NPT affords to supplier states.
The Cases of North Korea, Iran, and
India
Let
us examine the meaning of the rights afforded to non-weapons states
by Article IV of the NPT in three of the most pressing cases of
nuclear proliferation today. These cases are North Korea, Iran, and
India. Specifically, it is necessary to assess the extent to which
the proliferation problems raised by these cases reflect inherent
flaws in the NPT and the rights it affords to non-weapons states
under Article IV.
North Korea
Article IV's language is a minor
contributing factor in the rise of the nuclear proliferation threat
posed by North Korea. Yes, North Korea has asserted its right to
nuclear power under Article IV. Claiming this right, however, has
not allowed North Korea to obtain much international assistance for
its nuclear power program since it expelled IAEA inspectors and
withdrew from the NPT in late 2002 and early 2003.
The
primary factor contributing to nuclear proliferation in the case of
North Korea is that North Korea has decided to circumvent the NPT
and the international nonproliferation regime in its entirety.
Specific provisions within the NPT, therefore, are really
tangential factors in the problems posed by North Korea. The
primary issue regarding North Korea is how the U.S. and other
nations respond to North Korea's open circumvention of the NPT and
the international nuclear nonproliferation regime.
Iran
Iran
is a more disturbing case regarding the negative implications of
the language of Article IV for both the international nuclear
nonproliferation regime and the integrity of the NPT.
Iran
has asserted its rights to nuclear power while ostensibly remaining
within the NPT and continues to obtain significant outside
assistance for its nuclear program. This comes at a time when there
is mounting evidence that Iran is pursuing a clandestine nuclear
weapons program, which resulted in an IAEA decision on February 4
to submit a report on Iran to the United Nations Security Council.
Iran is putting itself in position to use international assistance
to bring itself to the edge of a weapons capability, which could
allow it to break out of the NPT and obtain weapons with few
additional steps.
Ensuring the integrity of the NPT,
however, is still possible in the case of Iran. Doing so requires
two things.
First, it requires that other
participating states understand that they effectively have been
warned about what Iran is doing and that they use what time remains
to respond to the Iranian program.
Second, it requires that supplier states
exercise self-restraint in terms of what assistance they provide
Iran in the face of Iranian claims that the NPT entitles it to the
assistance it seeks.
India
Paradoxically, India may raise the most
pressing questions regarding the internal weakness of the NPT. This
is the case despite the fact that India has never been a party to
the NPT.
On
the surface, it appears that the proliferation problems posed by
India are similar to those posed by North Korea and are more a
matter of circumventing the treaty regime as a whole and less the
result of internal weaknesses. In reality, the emerging U.S. policy
toward India may transform the existing tension between Articles I
and II of the NPT on the one hand and Article IV on the other into
a contradiction.
The
problem stems from the fact that the Bush Administration is seeking
"to achieve full civil nuclear energy cooperation with India."
Given India's nonparticipation in the NPT, as well as its nuclear
weapons capability, the Bush Administration's policy regarding
India runs the risk of turning Article IV's qualified right to
nuclear energy into an innate right.
Further, the Bush Administration's policy
regarding India risks exacerbating the slippage toward treating
nuclear energy assistance as an entitlement because it has made its
commitment to full cooperation up front. This leaves no room for
discretion regarding what types of nuclear energy assistance the
U.S., and by extension other supplier states, may provide to
India.
Toward a Two-Track Policy on De Facto
Nuclear Powers
Post-Cold War regional tensions in places
like East Asia, the Middle East, and South Asia have made it
increasingly clear that the U.S. needs to open a second track in
its overall nuclear nonproliferation policy. The first track
constitutes the existing global nuclear nonproliferation regime
defined by the NPT. The second track needs to focus on addressing
regional security imbalances that motivate non-weapons states to
seek nuclear weapons. The trick is to fashion policies and programs
in the second track that will encourage non-weapons states under
the treaty that nevertheless seek to possess nuclear weapons, which
I refer to as de facto nuclear weapons states, to join or rejoin
the NPT, as well as encourage other non-weapons states now within
the regime to stay there.
A
core assumption of this two-track approach is that U.S. policy will
seek to preserve the right to nuclear energy under Article IV of
the NPT as a qualified right of non-weapons states and not let it
become, by interpretation and practice, an innate right. The second
key assumption is that the U.S. and other supplier states will take
advantage of the broad discretion the NPT affords them and act with
self-restraint regarding the kinds of nuclear energy assistance
they will furnish to non-weapons states under particular
circumstances.
While the second track of this two-track
policy can involve a variety of security and energy cooperation
measures, a clear line must be drawn against allowing the second
track to eliminate the possibility that de facto nuclear powers
will either join or return to the first track. First and foremost,
this means refraining from conferring de jure nuclear weapons
status on any states beyond the existing five powers--for example,
by amending the NPT to admit additional states as weapons states to
the treaty.
Conclusion
International treaties are neither
self-executing nor self-enforcing. As essentially voluntary
arrangements, they require the good-faith efforts of the
participating states to make them work. These limitations pertain
to the NPT, as they do to every other treaty. This is why U.S.
nuclear nonproliferation policy must go beyond the NPT to include
other diplomatic and military options.
The
existence of these other options, however, does not necessarily
diminish the value of the NPT or require steps inconsistent with
the terms of the NPT. The NPT is a treaty that continues to serve
U.S. interests. As a result, U.S. policy should seek to preserve
the treaty and work against the forces that would seek to dilute it
or render it irrelevant.
Baker Spring is F.
M. Kirby Research Fellow in National Security Policy in the Kathryn
and Shelby Cullom Davis Institute for International Studies at The
Heritage Foundation. These remarks were delivered in testimony
before the Subcommittee on International Terrorism and
Nonproliferation of the House Committee on International Relations
on March 2, 2006.