The 2010 NPT Review: Prospects for verification

As the cornerstone of efforts to prevent the spread of nuclear weapons, and the legal basis for the promotion of nuclear disarmament, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is arguably the most important treaty in this field. ‘Considering the devastation that would be visited upon all mankind by a nuclear war’, to borrow from its preamble, its importance is beyond doubt. As Soviet Premier Nikita Khrushchev remarked in 1963: ‘The survivors would envy the dead.’

This year, as every fifth, the NPT comes up for review. Between May 3rd and 28th, representatives of the treaty’s 189 states parties are to meet in New York to assess its performance over the last five years and produce a consensus final document with recommendations for the future. Fifteen years have now passed since conference participants in 1995 decided on the treaty’s indefinite extension. Ten years have passed since parties agreed on 13 ‘practical steps’ toward disarmament and five years have passed since the last gathering broke up in disarray. How this review conference will turn out is hard to predict.

Ahead of the conference, this article explores a number of verification issues and priorities that its participants could profitably address—and possibly act on. This article begins by looking at the current state of the NPT and explaining the significant changes to the treaty’s verification regime that have taken place over the last 20 years.

The treaty has, on balance, been a remarkable success. Four decades on from the NPT’s March 1970 entry into force, nearly all countries are now members and nuclear weapons remain in the hands of the relative few. The world of several dozen nuclear-armed states foreseen by John F. Kennedy and others in the early 1960s has been averted. Today, nine states are known to have nuclear arms, up from five when the NPT came into effect. Though other factors—such as the extended American nuclear ‘umbrella’, and the technical challenges associated with nuclear bomb-making—have played their own parts in slowing the rate of spread, the role of the NPT, in terms of both normative force and verification procedures, has been critical.

But for some time, the treaty has been under severe strain—not least due to the perennial tension between its nuclear- and non-nuclear-weapon states parties over the rate of disarmament. Under the NPT, the latter (i.e. all except the pre-NPT weapon states of Britain, China, France, Russia and the US) undertake not to build or otherwise acquire nuclear weapons (Article II), while the former agree to pursue negotiations on nuclear disarmament (Article VI). Such is the grand ‘bargain’ around which the treaty revolves. Warhead numbers have fallen significantly since their Cold War peak in the mid-1980s, and look set to continue to drop, but many non-nuclear states contend that the decrease has not been sufficient, nor fast enough. The weapon states, they say, are not living up to their side of the deal.

Disarmament aside, it is the ongoing crises over North Korea and Iran that are the most familiar causes for concern. North Korea announced withdrawal from the treaty in 2003 and in the last five years has tested two nuclear explosive devices. It is thought to have enough bomb-ready plutonium for five or six more (though it is not yet thought to be capable of integrating them into a reliable weapons delivery system).

With regard to Iran, circumstantial evidence is mounting which suggests that the country is seeking nuclear weapons capability under cover of its ostensibly civilian nuclear power programme. As Michael Clarke—director of the Royal United Services Institute—has observed, Iran ‘points the way to a new dynamic of proliferation, where civil power programmes put a country near enough the nuclear threshold to be tempted to cross it at short notice.’
Given the anticipated rise in the number of countries with nuclear power programmes, fears of this kind are well grounded. Article IV of the NPT recognises the ‘inalienable right’ of non-nuclear-weapon states to produce nuclear energy, so long as they abide by their commitment not to also produce bombs. But nuclear power programmes entail inherent proliferation and security risks, especially where uranium enrichment and/or reprocessing facilities are involved. The worrying possibility is that an array of NPT parties in full compliance with Article IV could also become ‘virtual’ nuclear powers, by virtue of acquiring sufficient quantities of fissile material—the biggest hurdle for potential proliferators—through civilian programmes. Designing and building an actual bomb, particularly a crude 1940s version, is comparatively straightforward.

A brief look at safeguards
Verification of non-nuclear-weapon states’ obligations under the treaty is entrusted to the International Atomic Energy Agency (IAEA), which pre-dates the NPT by over a decade. To protect against the diversion of nuclear energy from peaceful to non-peaceful uses, Article III of the treaty requires each non-nuclear-weapon state to accept IAEA safeguards on all their nuclear material, and to conclude a safeguards agreement with the agency—in accordance with its ‘safeguards system’ and statute—for this purpose. Each so-called comprehensive safeguards agreement is individual, but all follow the form and content of a standard text, INFCIRC/153 (agreed by the IAEA Board of Governors in 1971), which obliges states to record and declare all nuclear material and facilities, and allow agency inspectors to verify that information. Twenty-two states parties have yet to bring such an agreement into force, albeit none of particular proliferation concern.

For its part, the IAEA has a ‘right and obligation’ under comprehensive safeguards agreements to ensure that safeguards are applied on all nuclear material used by non-nuclear-weapon states—whether properly declared or not. But in the 20 years that followed the introduction of INFCIRC/153, IAEA inspectors focused on verifying only what was presented to them. The possibility of unseen, undeclared nuclear material (and/or activities) was largely overlooked. As the 2009 report of the International Commission on Nuclear Non-Proliferation and Disarmament (ICNND) explains: ‘It was assumed that the development of [nuclear] fuel cycle capabilities independent of declared facilities would be beyond the resources of most states, and in any event would be readily detectable, and therefore if proliferation did occur, it was likely to involve diversion from declared facilities.’
The discovery, in the wake of the 1991 Gulf War with Iraq, that Saddam Hussein had been pursuing a secret nuclear weapons programme (much of it under the noses of IAEA inspectors) exposed the error of those assumptions. In response, the agency—in collaboration with member states—began looking at ways to strengthen the system. The objective became to develop the means to effectively verify not only the correctness of states’ declarations but also their completeness, in line with the IAEA’s responsibility to apply safeguards on nuclear material.

By 1995, a list of strengthening measures had been drawn up, some of which were able to be brought in under the existing legal authority of INFCIRC/153, (for instance, environmental sampling). For others, however, further authority was deemed necessary, a requirement that set the stage for the development of a new legal instrument: the model Additional Protocol (INFCIRC/540), a voluntary supplement approved by the IAEA Board in May 1997.

The strengthening measures under an Additional Protocol relate principally to information and access. INFCIRC/540 requires states to provide the IAEA with a far broader range of information than is called for in the text of INFCIRC/153, and grants inspectors greatly enhanced rights of access (including to all parts of a nuclear site—not just isolated ‘strategic points’ as before—with just two hours notice). As a result, in a state with an Additional Protocol, the IAEA has a far clearer picture of the nuclear activities taking place there. And its ability to provide a credible assurance of completeness is considerably improved, although such an assurance can never be definitive.

Additional Protocols are open to all states, not just NPT members. Overall, 128 states have now signed up to one, including the five NPT-recognised weapon states—and India). As figure one shows, 94 have them in force. Of the 64 non-nuclear-weapon states parties to the NPT with significant nuclear activities, 48 currently have an INFCIRC/540 agreement in force, while a further 11 have either signed or had one approved by the IAEA Board. The remaining five—Argentina, Brazil, Egypt, Syria and Venezuela—have not signed. Iran was applying an Additional Protocol on a ‘provisional’ basis from 2003, but suspended implementation of it in 2005. Israel, North Korea and Pakistan have not signed an Additional Protocol.

Setting a new standard
In light of the widely recognised usefulness of the Additional Protocol, it is now often said that the combination of an INFCIRC/153-type agreement and an INFCIRC/540 represents the ‘contemporary standard’ for NPT safeguards. It is, therefore, important that any substantive final document to result from the upcoming review conference reiterates the appeal to all states parties to conclude and bring an Additional Protocol into force ‘as soon as possible,’ as called for in the final document of the 2000 conference. The chance of securing universal adoption of the Additional Protocol among NPT parties is admittedly slim (the half-dozen most important hold-outs are the hard cases), but this appeal should be made, nonetheless.

One argument is that Additional Protocols should not be voluntary anyway. The text of INFCIRC/540 is silent on this, but as John Carlson—director of the Australian Safeguards and Non-Proliferation Office—has pointed out, non-nuclear-weapon states have agreed to accept the agency’s ‘safeguards system’, not specifically the measures set out in an INFCIRC/153 (which had not even been negotiated when the NPT came into force). As the contemporary safeguards standard, a joint INFCIRC/153-INFCIRC/540 arrangement can thus be plausibly argued to represent the current embodiment of the ‘safeguards system’ referred to in the treaty.

That the system continues to be assessed and improved upon—in proactive ways, ideally—is essential. With this in mind, one aspect of safeguards worthy of review conference consideration is that of the agency’s right to verify the absence of clandestine weapons research and development in non-nuclear-weapon states. At present, there is some debate over the extent to which the IAEA’s existing powers extend into the field of weaponization, with former IAEA Director-General Mohammed ElBaradei, for one, noting during his tenure that ‘the agency’s legal authority to investigate possible parallel weaponization activity is limited, absent some nexus to nuclear material being present.’

Mr Carlson disagrees, arguing that while INFCIRC/153 is written in terms of nuclear material, ‘weaponization is not only a breach of NPT commitments but indicates diversion or intended diversion of nuclear material so is clearly encompassed by the IAEA’s responsibility to provide timely warning of diversion.’ In any case, since the manufacture of a nuclear weapon will at some stage, however distant, necessarily involve nuclear material, is there not always a linkage between the two? As the Zedillo Commission on the future of the IAEA recommended in 2008: ‘The IAEA’s existing authorities should be interpreted to give the agency the responsibility to inspect for indicators of weaponization. The agency should establish a team of qualified inspectors for this purpose.’

If the agency is to find undeclared nuclear activities, and possibly evidence of weaponization, it cannot be expected to do without the assistance of its member states, and the resources at their disposal. To quote Hans Blix, the former Director-General of the agency, IAEA inspectors ‘cannot be expected to comb through every inch of a state’s territory blindly searching for nuclear material and installations.’ Political considerations notwithstanding, the sharing of information with the agency—including relevant intelligence—is therefore essential. If weaponization does become part of the agency’s formal remit, this need will become greater still. Though perhaps somewhat self-evident, language recognising and stressing the importance of information-sharing between states and the IAEA, with regard to the effectiveness of the safeguards system, would be a valuable addition to a final document. Two more needs—and quite pressing ones at that—relate to the financial and human resources of the IAEA. Financially, if the agency is to live up to the increased expectations of the international community, it must have a budget up to the task. For years, though, IAEA funding (which is provided by contributions from member states) has been limited by zero real growth constraints tying budgetary increases to inflation. In a welcome intervention, Barack Obama made a campaign promise in 2008 to work toward a doubling of the IAEA budget within four years. Last August, US pressure secured IAEA Board approval of a rare real budgetary increase—of 2.7 per cent, on top of a 2.7 per cent rise in line with inflation—to bring total IAEA funds for 2010 to €318m (see figure two). But this 5.4 per cent rise was only half the 11 percentage point increase called for by Mr ElBaradei prior to the Board’s decision.

With respect to staffing, as the ICNND report notes, much of the IAEA’s workforce of nuclear scientists, engineers and managers are approaching retirement, ‘and for nearly thirty years the career entry channels have nowhere kept up with replacement requirements.’ Two years ago, the Zedillo Commission warned that half of the top managers and senior inspectors at the agency were expected to retire within the next five.

But the Zedillo Commission makes some good recommendations also, in both of these areas. To address funding needs, it calls on the IAEA Board to approve a one-time budgetary increase of €80m, followed by consistent annual increases (of around €50m each, it suggests) above inflation. To tackle the ‘incipient crisis’ in staffing, it recommends that the agency embark on a ‘substantial campaign to recruit, train and retain the highly qualified personnel needed to carry out its safeguards responsibilities.’ In turn, it says, member states should launch their own initiatives to ‘attract and educate the next generation of specialists in safeguards-related technologies’, and provide incentives to pursue a career at the IAEA.

Clarifying the relationship with the treaty
Then again, outfitting the IAEA is only half the story. The objective of safeguards, as set out in INFCIRC/153, is both to detect the diversion of nuclear material to nuclear weapons, and to deter actions of this sort through the risk of getting caught. To a considerable extent, however, the deterrent power of safeguards rests on the (highly politicised) consequences of non-compliance with them—matters for the UN Security Council to decide, upon referral by the IAEA Board. Consequences of safeguards violations is a further issue that could be usefully addressed at the review conference, particularly with reference to, as James Acton of the Carnegie Endowment for International Peace advocates, the degree to which non-compliance with safeguards agreements equates to non-compliance with the NPT.

The issue of compliance is not always clear, especially as most safeguards violations are seen to be relatively minor affairs and not proliferation concerns. With a hint of optimism, Mr Acton suggests that NPT parties should use the conference to ‘clarify and emphasise’ that any future non-compliance with safeguards will automatically amount to a violation of Article III. Moreover, he argues, they should agree that ‘the most serious cases of deliberate safeguards non-compliance’ will, in the future, be assumed to represent non-compliance with Article II—the prohibition article—as well. Related to this is the subtle, but significant, modification to the NPT included in the final document from 2000. Article IV of the treaty makes a state’s right to produce nuclear energy conditional on conformity with Articles I and II. Ten years ago the review conference’s final document made that right conditional on compliance with Article III also. According to this language, a state in non-compliance with its safeguards thus forfeits the right to produce nuclear energy. If agreement is reached on a final document at this year’s conference, this point ought to again be part of it.

Reviewing disarmament progress
Preventing proliferation through safeguards is more than an end in itself. Rather, as was recognised in 2000, safeguards ‘help to create an environment conducive to nuclear disarmament’ and cooperation. With disarmament having moved firmly back into the spotlight since the election of President Obama, who last year described the NPT as a ‘centrepiece’ of his foreign policy, there is more optimism today than in nearly two decades that meaningful progress in this area can be achieved.

Making progress will, first and foremost, depend on US and Russian actions. While this article was being prepared, the two countries were still negotiating their way toward a replacement for the bilateral 1991 Strategic Arms Reduction Treaty (or START, which expired in December), after Mr Obama and his Russian counterpart, Dmitry Medvedev, agreed last July to limit their respective strategic warhead numbers to between 1,500 and 1,675 (see editor’s note below). Together, the Cold War rivals hold over 90 per cent of the 23,000 warheads currently in existence. No multilateral disarmament treaty encompassing a range of nuclear powers, if not the full complement, has a chance of becoming reality for as long as this situation endures.

A new START treaty would be certainly a step in the right direction, but alone it is insufficient. If disarmament momentum is to be sustained, deeper cuts are needed, and broader ones too, involving not just strategic arms but shorter-range tactical weapons, and warheads kept in reserve—neither of which have ever been limited by treaty. A fuller explanation of the issues involved here (missile defences, Cold War mindsets and the conventional forces imbalance, for instance) is beyond the scope of this discussion. Suffice to say that it will not be easy. Nor is it likely to be quick. Nor will it amount to anything if a multilateral disarmament treaty cannot be effectively verified. There are four elements to this, says Barry Blechman, in a report on disarmament for Washington’s Stimson Centre: declarations; inspections of declared and undeclared facilities alike; technical safeguards; and the verifiable destruction of all declared items, according to an agreed schedule. Considerable work in these areas has already been undertaken, including the recent partnership between the UK and Norway, with VERTIC participation, on ‘information-barrier’ technologies (designed to protect classified warhead information without sacrificing verification transparency), and managed inspector access to warhead dismantlement facilities. As part of this initiative, a joint dismantlement exercise was held in Norway last June, on which VERTIC will report in due course.

Preparatory studies such as the UK-Norway Initiative are vital in laying the groundwork for a world without nuclear weapons, and should rightfully be seen as part of an ongoing process of confidence-building. Worth repeating, then, the call from the 2000 Review Conference for ‘the further development of the verification capabilities that will be required to provide assurances of compliance with nuclear disarmament agreements for the achievement and maintenance of a nuclear-weapon-free world.’ That recommendation remains as apt today as it was then.

Concluding thoughts
The 2010 NPT review conference provides a timely opportunity for all parties, including both nuclear and non-nuclear weapons states, to renew their commitment to the treaty and reaffirm its indispensability. After the failure of the 2005 conference to reach agreement on anything whatsoever (except an agenda, after three weeks), the bar is set low. However, there are some hopes that the conference will result in significant movement forward on both the non-proliferation and disarmament fronts, though that is far from assured. This article has identified eight issues and priorities relevant to the verification of treaty obligations that could be addressed by review conference participants in May: universalization (of the Additional Protocol); weaponization; information; funding; staffing; non-compliance with Article III; Article III’s link to Article IV; and the development of disarmament verification capabilities. Ensuring the soundness of NPT verification—taking into account the expected rise in the number of states developing nuclear power—is incumbent upon all parties in good standing.
David Cliff
Intern, VERTIC