Why Nuclear Supplier States are in Collective Breach of the NPT

I have argued before, and particularly in my 2011 book, that the NWS parties to the NPT, along with the other supplier state NPT parties, are collectively in breach of the NPT’s terms due to their overly restrictive policies regarding export of peaceful nuclear energy technologies to developing countries, as harmonized through the Nuclear Suppliers Group.

Here’s what NPT Article IV(2) says (emphasis mine):

All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.

So, supplier states parties to the NPT (“parties in a position to do so”) are under an international legal obligation to contribute to the further development of applications of peaceful nuclear energy technologies by NNWS, and in particular developing NNWS.  This obligation provides the backdrop for considering the lawfulness of the restrictions that supplier states have agreed upon through the NSG on the export of nuclear technologies, and in particular dual use nuclear technologies.

In light of this obligation, let’s think about the current dispute between the US and South Korea, in which South Korea is trying to negotiate a nuclear technology sharing agreement with the US which allows for the export to South Korea of nuclear technologies, including enrichment and reprocessing technologies, from US vendors.  The US is so far unwilling to allow transfers of these technologies due to proliferation concerns. See reports here and here.

Enrichment and reprocessing technologies are of course dual use – meaning that they play an integral part in a state’s development of a full peaceful nuclear fuel cycle, but they can also be used in a nuclear weapons development program – like most of the other parts of the nuclear fuel cycle.  The US, and the other members of the NSG, consider enrichment and reprocessing (ENR) technologies to be especially proliferation sensitive because of the particular roles they play in the nuclear fuel cycle, and their susceptibility for use in producing fissile materials for a nuclear explosive device. For this reason, the NSG guidelines were recently revised to place even higher restrictions on these technologies than on other technologies in the fuel cycle. (See my post on this revision from Arms Control Wonk here)

But what about the obligation of the US under NPT Article IV(2) quoted above? Can the US get out of this obligation simply by declaring that some dual use technologies that are part of the fuel cycle are in its opinion too proliferation sensitive, and therefore can be restricted from trade with NPT NNWS? This is the basis assumption on which the entire NSG Part II guidelines and trigger lists are maintained. But I think this assumption is fundamentally erroneous.

 I wrote the following about the nature and scope of the NPT Article IV(2) obligation in my 2009 book, beginning on Pg. 48 (WARNING – LENGTHY QUOTE):

 As to the scope of these obligations, the paragraph 2 obligations should be given a broad interpretation, as within the context of the NPT they comprise some of the chief reciprocal obligations . . . especially falling upon NWS and particularly demanded by NNWS in exchange for their obligations under Article II. . . The obligations in paragraph 2 include not only direct transfers of nuclear fuel and facilities for nuclear energy production, including reactors, but also technical and design information to allow for the indigenous production of nuclear fuel and facilities in NNWS.

 Notwithstanding the terms of Article IV, paragraph 2, and the overall importance of the article in the context of the NPT, some NWS particularly have taken a very narrow view of their obligations under the provision. For example, the U.S. Atomic Energy Commission in 1969 in Senate hearings on the NPT, stated:

 “We do not, however, interpret Article IV as meaning that the U.S. will be compelled to embark on any costly new programs or as obliging the U.S. to meet all requests and demands. Neither do we construe Article IV as overriding the provisions of the U.S. Atomic Energy Act, nor will it remove the discretion we have in determining the nature of our cooperative relationships with other countries, on a case by case basis.”

This restrictive reading of the paragraph 2 obligations of assistance, and claim to a wide residual discretion in supplier states to determine with which NNWS peaceful nuclear sharing should take place, if accepted, would set up a fundamental inconsistency within the treaty framework. It would serve to make the Article IV obligations, which are particularly incumbent upon NWS and other technologically advanced states, conditional upon the national discretion of individual treaty parties, whereas the reciprocal obligations of NNWS in Article II are absolute and independently verified by the IAEA. Under this interpretation, the grand bargain of the NPT becomes severely one sided and subject to the subjective determinations of individual powerful states. This interpretation further weakens the incentive of NNWS to maintain their Article II obligations. . .

In the present author’s view, the implementation both of the inalienable right of NNWS as well as the obligation of all NPT parties contained in Article IV, must be based upon rules of law and objectively and consistently established principle. Thus, in order to fulfill their obligations under Article IV, and in consideration of the balance of both fundamental interests identified above, the approach of supplier states to the issue of assistance to NNWS in the area of peaceful nuclear uses should be firstly to require that the receiving state be a NNWS party to the NPT . . . Second, the recipient state should be subject to full scope safeguards as administered by the IAEA.  If a state meets these criteria, and if no positive and objectively demonstrable evidence has been produced by IAEA inspectors either of incorrectness of the state’s declaration of its nuclear activities to the IAEA, or of the actual diversion of nuclear materials to non-peaceful use, then transfers of items and technologies for peaceful use to the state should continue per the request of that state.  This should be the understood meaning of the right to peaceful use held by NNWS, and the obligation of all NPT parties to assist developing states in their peaceful nuclear programs contained in Article IV. It should further be accepted as the correct interpretation of the relationship between Article IV and Articles I and II. Such a treaty-rule-based approach, supplemented by the most broadly agreed terms of supply contained in the NSG guidelines, should serve to remove much of the subjectivity and potential politicization from the issue of the compatibility of the two fundamental interests. . .

Further following from this understanding of the contours of the obligation of NPT parties to assist NNWS, and particularly developing countries, in development of peaceful nuclear programs, is the observation that this obligation should inform both the making and implementation of NSG guidelines on transfers from supplier states, as well as national export control laws which the NSG seeks to harmonize. In this regard, it is important to remember that in any case in which the clear interpretation of the terms of the NPT is found to be inconsistent with the guidelines of the NSG, the treaty rule must prevail and the conflicting NSG guideline will not serve to absolve a state from liability for violation of the treaty rule. Thus, even though great emphasis is placed upon the Basic Principle within the NSG guidelines as a catch-all norm justifying withholding of transfers of sensitive items and technologies when there is concern regarding the risk of diversion to military use by an end user, this principle cannot be held to trump the rights of developing NNWS under Article IV of the NPT, as properly interpreted.

So with regard to US and other NSG members’ denials of ENR technologies to NNWS, I think that in most such cases, and certainly in the case of South Korea as a NNWS in good standing, such denials run counter to the basic obligation of supplier states in NPT Article IV(2) and there is no basis in law on which to justify such restrictions. Thus, in the South Korea case, as in most cases, NPT supplier states are in violation of the NPT when they refuse to allow exports of peaceful nuclear technologies, including ENR technologies.

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3 Comments on “Why Nuclear Supplier States are in Collective Breach of the NPT”

  1. yousaf says:

    Another interesting case of this happened with Iran in 1983, where the IAEA was happy to help Iran with a pilot enrichment plant but the US interceded to politicize the IAEA and stop the cooperation:

    by Mark Hibbs

    http://www.iranaffairs.com/iran_affairs/2007/12/irans-not-so-hi.html

    ===============================

    ” U.S. in 1983 stopped IAEA from helping Iran make UF6 ”

    by Mark Hibbs,

    Bonn

    Nuclear Fuel August 4, 2003 Vol. 28, No. 16; Pg. 12

    Four years after the Islamic revolution, and two years after Iran’s new leaders dusted off the nuclear program of the deposed Reza Shah Pahlevi, IAEA officials were keen to assist Iran in reactivating a research program to learn how to process U3O8 into UO2 pellets and then set up a pilot plant to produce UF6, according to IAEA documents obtained by NuclearFuel.

    Sources said that when in 1983 the recommendations of an IAEA mission to Iran were passed on to the IAEA’s technical cooperation program, the U.S. government then ”directly intervened” to discourage the IAEA from assisting Iran in production of UO2 and UF6. ”We stopped that in its tracks,” said a former U.S. official.

    =================================

    Of course, when Iran could not get the help IAEA was willing to supply because of Western politicization, then it resorted to covert methods.

    Then when it was reported to the UNSC for using such covert methods, the UNSC legal hegemon took over:

    http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2182257_code661481.pdf?abstractid=2182257&mirid=1

    Abstract:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182257

    The Security Council as a Legal Hegemon

    Daniel Joyner
    University of Alabama – School of Law

    2012

    Georgetown Journal of International Law, Vol. 43, p. 225, 2012
    U of Alabama Legal Studies Research Paper No. 2182257

    Abstract:

    This article will examine the United Nations Security Council’s efforts to implement, preserve, and universalize the obligations of the 1968 Nuclear Nonproliferation Treaty. This discussion will lead to questions regarding the Security Council’s role and authority in the international legal system, and ultimately to a consideration of how the international legal system can better guarantee that the Security Council does not exercise an unwarranted degree of legal power at the expense of the member states of the United Nations.
    =============================

    Basically, international law has been made a mockery of.

  2. Don Bacon says:

    I mean holistic here in the sense that the Vienna Convention on the Law of Treaties means holistic. Not in the way Ravi Shankar means it. What I mean is interpreting provisions of a treaty with reference to their context within the treaty, as well as with reference to the overall object and purpose of the treaty.

    Since you brought it up–

    If someone who is responsible for the whole society, the whole kingdom can say that he is not doing anything in spite of his responsible job; then that ‘not doing something’ is great. That is enlightenment.
    – His Holiness Sri Sri Ravi Shankar

    The U.S. sees itself as responsible for the whole world, and this means that its treaties are used not merely as treaties, but in the larger “whole kingdom” holistic sense of maintaining its authority in the kingdom, but not in Shankar’s “enlightened, not doing anything” way.

    No, the US is leaning on Iran and South Korea (and many other states) to the advantage of the US but to the disadvantage of those states, using treaties to promote and maintain its world stature. In South Korea this “leaning” is assisted by U.S. military provocations in the area which raise security tensions, promote US imperialism and hurt US puppet-state South Korea which has a large stake in peaceful uses of nuclear energy.

    The chief point of contention is that the Koreans would like to enrich uranium and reprocess used fuel rods. Because of the current ban on enrichment, Korea must not only import raw uranium, but also send it to a foreign firm for processing into usable nuclear fuel. This is expensive and also poses a problem when Korea exports reactors. The ban on reprocessing, meanwhile, means Korea must store perfectly usable fuel rods, and by 2024, there will be no more room to put ‘em.

    http://www.rjkoehler.com/2013/04/22/us-attitude-on-nuclear-agreement-no-way-to-treat-an-ally-chosun-ilbo/

  3. […] In other words, in signing the NPT, states in a position to do so promised to help others to acquire nuclear technology for peaceful purposes. Clearly the west, led by the US, has not fulfilled this undertaking in respect of Iran since 1979. This amounts to a serious breach of the NPT, which is continuing to this day.  See, for example, Why Nuclear Supplier States are in Collective Breach of the NPT by Professor Dan Joyner, 24 April 2013 [13]. […]


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