The Non-Proliferation Treaty in Crisis
Introduction: A Treaty in Crisis
Among the few things that arms control “hawks” and “doves” agree on is the precarious state of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The withdrawal of North Korea in 2003, the frustrating attempts to halt Iran’s uranium enrichment programme, and most recently the US-India nuclear deal allow for no other conclusion than that the NPT and the regime it underpins have been damaged – perhaps even beyond repair.
When it comes to the causes for the current malaise, however, the commonality between hawks and doves quickly vanishes. Indeed, their views on who is to blame for the NPT’s crisis are almost diametrically opposed.
For the liberal arms control community the case is clear. In their view, the root cause of the present crisis is the unwillingness of the nuclear weapon states to live up to their part of the NPT bargain and commit to real disarmament. According to this school of thought, the selfish and contradictory policies of the nuclear-weapon states (NWS) have created a web of double standards that make dealing with the (few) violators particularly difficult. In the view of this school, only a fundamental change of the NWS’ policies offers a chance to repair the damaged non-proliferation regime.2
This school has many adherents, yet it fails to capture the true causes of the weakening of the Non-Proliferation Treaty. The crisis of the NPT is due to many causes, with the failure of the NWS to adhere to their Article VI commitments being just one, and not the most important one. If the NPT is in jeopardy, it is mainly due to three major factors:
First, structural weaknesses that burdened the NPT from its very beginning have progressively gained in salience and are now undermining some of the key tenets of the regime. Second, new developments in international security tend to invalidate many of the traditional assumptions underlying the NPT, and are pushing other nonproliferation strategies to the fore. Finally, the increasing demand for fossil energy tends to override the non-proliferation norm and paralyses the UN Security Council in maintaining the integrity of the nonproliferation regime. Each of these three factors is examined in more detail below.3
Structural Weaknesses of the Non-Proliferation Treaty
Given the fact that the NPT now has almost 190 parties, one might be tempted to conclude that the Treaty has been transformed from a mere legal document into a truly global moral norm. However, the Treaty’s inherent structural dilemmas have progressively been exposed. For example, the Treaty’s most fundamental challenge, namely to codify the inequality between the nuclear “haves” and “have-nots”, could only be met by emphasising the NPT’s limited duration. However, this constructive ambiguity was done away with by the Treaty’s indefinite extension in 1995, which reinforced rather than ameliorated the built-in tensions of the arrangement.
The NWS’ rather general commitment to disarmament (Article VI) constitutes another structural feature of the NPT that was bound to lead to a crisis of the NPT bargain. Arguably, the NWS regarded this commitment as a price they had to pay in order to get the non-nuclearweapon states (NNWS) on board. However, it was a foregone conclusion that, sooner or later, the latter group would insist that the NWS live up to their disarmament commitments. In recent years, the mounting frustrations voiced by the NNWS, in particularly some non-aligned countries, have served as a pretext for some of them to oppose tougher measures against proliferators.
The most worrisome structural weakness of the NPT from today’s vantage point, however, might well be its energy dimension. Crafted in a period of euphoria about the blessings of nuclear energy, the NPT sought to prevent military proliferation by fostering civilian nuclear proliferation. However, since civil and military nuclear technologies are almost indistinguishable, the Treaty in effect allows a country to develop its civilian nuclear programme right to the threshold of having military applications. Only the final steps to produce nuclear weapons are prohibited – steps that a determined regime could take promptly after its withdrawal from the Treaty.4 This very scenario now appears to be coming true in Iran.
New developments in international security
As long as the bipolar framework of the Cold War dominated international politics, these structural problems of the NPT did not matter much. However, the end of the Cold War removed the specific political and military context in which nuclear weapons had contributed to mutual deterrence and restraint. The lack of new nuclear rules, together with an ever-accelerating process of globalisation, has sparked various new developments that reinforce the built-in structural problems of the NPT bargain and create new challenges for the traditional non-proliferation regime.
The implicit US nuclear threat against any chemical weapons use by Iraq against coalition forces in the 1991 Gulf War invalidated the notion of regarding nuclear weapons as an entirely separate WMD category. Since the US and other NWS had to assume that future enemies might be equipped with chemical and biological weapons, nuclear weapons were needed to deter any WMD use. Predictably, this stance continues to be criticised as compromising the logic of negative security assurances, according to which no NWS can threaten a NNWS with nuclear weapons.
The discovery of Iraq’s secret nuclear programme immediately after the 1990-1991 Gulf War revealed a massive verification failure. The resulting lack of trust in the NPT’s verification clauses in general and the IAEA’s abilities in particular could never be overcome. Neither in North Korea nor in Iran could the IAEA demonstrate convincingly that it was abreast of the situation, and able to take effective action.
In 1993, North Korea’s nuclear ambitions could only be contained through massive US political and military pressure, yet with little international support. In 1998, the nuclear tests by India and Pakistan raised questions of how to discourage non-NPT members from seeking nuclear weapons, but also how to bring wayward outsiders into the NPT. That same year, the withdrawal of the UN Special Commission (UNSCOM) from Iraq and North Korea’s missile tests further underscored the limits of traditional multilateral approaches to nonproliferation. 5
The terrorist attacks against the United States on 11 September 2001 gave the non-proliferation question a new sense of urgency and dramatically decreased US tolerance vis-à-vis proliferating states (“axis of evil”). The attacks also raised the spectre of terrorist non-state actors armed with WMD, thereby creating a new challenge for the inter-state nature of the NPT-regime and invalidating many assumptions of rationality and restraint that were considered central to dealing with the nuclear reality. Finally, the debate on a possible “Talibanisation” of Pakistan raised the spectre of a fundamentalist nuclear power emerging literally overnight.
The uncovering of the A.Q. Khan network in early 2004 invalidated yet another widely shared assumption on which the classical NPT regime was based: the dependence of would-be nuclear powers on support by traditional NWS. Khan’s network had supplied Iran, Libya and several other states with technology and know-how. It thus underscored the danger posed by “second-tier proliferation”: an acceleration of the spread of nuclear weapons, and thus more "turnkey states" that are able to rapidly convert their civilian nuclear programme into a military one.
Finally, Iran’s insistence on its “legitimate” right to enrich uranium, irrespective of its dubious track record, has revealed a serious gap in the legal framework of the NPT. Thus, effective UN Security Council (UNSC) action is only possible if one adopts a broad interpretation of the NPT, going beyond its specific wording and emphasising its norm-setting intent. How far such an extensive interpretation can be agreed, however, and whether it can be sustained in the longer term, remains to be seen.
The Energy Paradox
The NPT’s structural problems and new security challenges make it clear that mere tinkering with the wording of some of the NPT’s provisions will not suffice to restore the integrity of the damaged regime. That task will rather fall to the UNSC as the ultimate arbiter of the NPT. However, the five permanent UNSC members are nuclear-weapon states and thus vulnerable to charges of double standards. This is particularly clear with respect to the United States – the de facto trustee of the NPT regime –which has clearly suffered from a loss of moral authority, notably because of the Iraq war.
The major problem for the UNSC, however, is a phenomenon that one may term the “economisation” of security policy. Simply put, if a proliferator also happens to be a major energy supplier or is valuable for other reasons, the non-proliferation norm may be superseded by energy or geopolitical considerations. The case of Iran is most instructive in this regard. What can be observed here is a reversal of the NPT’s original energy bargain. Instead of helping a NNWS to cope with its nuclear energy needs, it appears that some UNSC members’ own fossil energy needs may lead them to accept a country’s nuclear-weapon status in order to retain access to that country’s fossil fuel.
Arguably, the US-India case follows a similar logic of tradeoffs. Given the need to cope with shifting geopolitical realities in Asia, a closer relationship with India becomes a political imperative, even if this may run counter to non-proliferation orthodoxy.6 Both cases are not exceptions, but are likely to become the rule. Even long before the USIndia deal, Pakistan’s crucial role in the war against terror constituted a case where non-proliferation concerns could not be allowed to dominate the agenda. In short, non-proliferation interests are now competing against other vital concerns – and, in some cases, risk losing out.
The Way Ahead
Upholding the formal non-proliferation regime remains a major NATO interest, for only this regime offers a framework for identifying and sanctioning unwanted behaviour. However, there is little hope that the system could be stabilised by reforms. For despite the success of US and British diplomacy in talking Libya out of its nuclear programme, powerful trends are working against the non-proliferation principle.
Clearly, the UNSC remains the focal point for maintaining what is left of the regime’s integrity, for example by forcing violators back into the regime. To do so, however, would require the UNSC to take action in ways that go beyond the Treaty itself. Indeed, in the opinion of this author, the US and European Union stance vis-à-vis Iran, which wants Tehran to suspend enrichment due to its past suspicious behaviour, is already de facto outside the Treaty’s remit.7
Arguably, there already exists a far-reaching legal basis for taking robust action against proliferators: The 1992 UN Security Council Presidential Statement in conjunction with UNSCR 1540 of 2004 offers considerable leeway, even more so as these declarations appear to apply even to non-NPT countries. Indeed, one could argue that the UNSC’s ultimatum to Iran in the summer of 2006 to stop its enrichment activities represents more than a broad interpretation of the NPT but constitutes a new, more assertive approach in dealing with proliferators.
Such a tougher stance should be complemented effectively by more robust forms of action against proliferators, such as the Proliferation Security Initiative (PSI). In addition to its operational achievements, as in the case of Libya, the significance of the PSI is essentially political. In acknowledging the need for a more pro-active and coercive approach, the PSI highlights the importance of the “denial” aspect of non-proliferation, thus sending a strong signal of resolve to would-be proliferators.
Finally, one can expect more creative (and controversial) approaches to get outsiders into the regime. The US-India agreement, which gives New Delhi access to civilian nuclear technology and fuel, yet at the same time makes it more difficult to transfer it to others, is one possible approach to realigning classical non-proliferation principles with new and compelling geopolitical requirements. Hence, it is not without reason that the director of the IAEA has welcomed the agreement.8
In sum, the image of the NPT as a set of norms that transcend national interests is increasingly being revealed as a myth. The regime was and remains highly dependent on – and vulnerable to – specific political and economic developments. Thus, the NPT is unlikely to retain the centre stage role that it has occupied for so long. Political and economic constellations will become far more important for the future of non-proliferation than the specific legal framework.
Clearly, upholding the formal non-proliferation regime remains a major interest of all NATO Allies, for only this regime offers the framework for identifying and sanctioning unwanted behaviour. Without a more assertive UN Security Council, however, hopes for a reinvigoration of the NPT will remain elusive.
1 Policy Planning Unit of the NATO Secretary General. The views expressed are personal.
2 See William Walker, “Weapons of Mass Destruction and International Order”, Adelphi Paper, 370 (London: International Institute for Strategic Studies, 2004).
3 For a more extensive treatment see Michael Rühle, “Order and Disorder in the Second Nuclear Age”, Internationale Politik – Transatlantic Edition, Vol. 7, No. 4, Fall 2006.
4 See Albert Wohlstetter, “Spreading the Bomb without Quite Breaking the Rules”, Foreign Policy, No. 25, Winter 1976-77.
5 Nor did North Korea’s definitive withdrawal from the NPT in 2003 have any major international consequences.
6 Although India has not adhered to the NPT, it appears to have a solid non-proliferation record. 7 The EU’s line of argument proceeds from the assumption that the right to enrich uranium (widely assumed to reside in Article IV) is inseparably connected with Articles I and II. Moreover, according to the EU’s approach, the issue is for Iran to re-build the trust it has lost through its cheating, rather than giving up enrichment for good.
8 Mohamed El Baradei, “Rethinking Nuclear Safeguards”, The Washington Post, 14 June 2006, p. A23.