Why Nuclear Supplier States are in Collective Breach of the NPTPosted: April 24, 2013
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.