Alexander Kmentt / Arms Control Association – 2013-12-22 18:48:35
WASHINGTON, DC (December 2013) — The nuclear Nonproliferation Treaty (NPT) is facing several serious challenges. There are increasing doubts about its effectiveness in preventing the proliferation of nuclear weapons. The actions of North Korea are deeply worrying and significantly undermine the NPT edifice. The complex issue of the Iranian nuclear program and if and how it can be resolved will have serious repercussions for the treaty.
Universality is a key ingredient of the NPT’s credibility, but looks more and more distant. Without India, Israel, and Pakistan, which never were parties, and North Korea, which declared its withdrawal from the treaty in 2003, the NPT’s value as a security and confidence-building instrument is increasingly put into question in the regional contexts of the Middle East and Asia.
Arguably its most serious challenge, however, is the extent to which it can still be considered as a framework in which to achieve nuclear disarmament.
Fundamentally different and even conflicting views are apparent among the NPT membership on key aspects, such as the priority of nuclear disarmament, the demands of Article VI,  the definition of credible progress, and the way forward. These differences threaten the integrity of the NPT.
When the 2010 NPT Review Conference adopted by consensus an action plan  that included 22 concrete nuclear disarmament actions, it was heralded as a significant achievement because it would make the implementation of Article VI measurable against a set of clear benchmarks.
The 2010 action plan, for the first time in the NPT context, declared a world free of nuclear weapons as the goal of nuclear disarmament. It contains recommitments to previous undertakings on nuclear disarmament and concrete steps on security assurances, nuclear testing, fissile material production, transparency, and other measures.
The action plan underscored that Article VI was a collective responsibility of all NPT states-parties — non-nuclear-weapon states as well as nuclear-weapon states. Action 1 commits all states-parties “to pursue policies that are fully compatible with the Treaty and the objective of achieving a world without nuclear weapons.”
The plan calls on the nuclear-weapon states to report on their undertakings at next year’s NPT Preparatory Committee meeting, the third and last such meeting before the 2015 review conference. The conference will take stock and consider the next steps for the full implementation of Article VI. 
With these benchmarks looming, the reporting of nuclear-weapon states on their actions and the extent to which non-nuclear-weapon states will consider those actions to be sufficient progress will be a key issue, if not the most important issue, in the run-up to the 2015 conference and at the conference.
The argument probably will proceed along familiar lines: nuclear-weapon states will present the action plan as an endorsement of a gradual and incremental implementation of Article VI and will point to some steps they have taken as proof of their commitment to nuclear disarmament.
In contrast, the non-nuclear-weapon states are likely to express disappointment about the lack of significant progress, which they will cite as proof of procrastination on the part of nuclear-weapon states.
During past review conferences, the NPT parties have largely brushed over these conflicting views through consensus language. This approach may not work any longer. The NPT may be reaching the point where the contradictions, particular those pertaining to nuclear disarmament, place too much stress on the credibility and cohesion of the treaty.
It may be necessary to address these contradictions and differing perceptions openly in order to stop the slow but accelerating process of erosion of the NPT.
A Priority or Distant Objective?
The rhetoric in public statements and international forums would indicate a broadly shared view about the objective of nuclear disarmament and a world without nuclear weapons. In reality, there is a serious disconnect between nuclear-weapon states and non-nuclear-weapon states on the issue.
Nuclear-weapon states’ declarations on disarmament focus on nuclear weapons reductions by bilateral agreements, such as between Russia and the United States, or through unilateral steps.
Yet, these statements still posit the deterrence value of nuclear weapons and continue to rely on those weapons as ultimate guarantors of security. Modernization programs are in place, and long-term investments in nuclear weapons and their infrastructure are being made or are foreseen in all nuclear-weapon states.
Consequently, nuclear-weapon states consider nuclear disarmament and the achievement of a world without nuclear weapons to be a long-term aspirational objective at best.
Thus, pending the achievement of perceived global preconditions for nuclear disarmament, these countries are prepared to take only limited and gradual disarmament steps without fundamentally reassessing the role of nuclear weapons or altering the nuclear strategic balance.
At the same time, nuclear-weapon states focus on the prevention of further proliferation of nuclear weapons, which they see as the only real challenge to the integrity of the NPT. This is not only their clear priority, but they argue it is a necessary precondition for more-substantial nuclear disarmament steps.
The perspectives of most non-nuclear-weapon states regarding the urgency of nuclear disarmament are quite different. Among these countries, nuclear weapons and nuclear deterrence are widely seen as a high-risk approach to national and international security.
According to this view, humanity escaped unharmed during the Cold War period and thereafter as much by luck as by design. Moreover, the concepts of nuclear deterrence and the necessity of nuclear strategic stability, which were merely transferred to the 21st century with little change, look increasingly anachronistic 20 years after the end of the Cold War.
This lack of adaptation to new realities might be seen not only as a missed opportunity but also as a serious misjudgment and a key driver and incentive for proliferation. Arguably, there is a direct relation between the continued reliance on nuclear weapons by nuclear-weapon states and the quest for these weapons by other states. This link can only be broken by a collective and sincere move away from nuclear weapons.
Most non-nuclear-weapon states that are not part of “nuclear sharing arrangements” or “nuclear umbrellas” consider nuclear weapons to be highly dangerous in themselves. They view retention of and reliance on nuclear weapons as outdated, while seeing disarmament as an essential element of preventing the proliferation of nuclear weapons.
The mere existence of nuclear weapons results in a permanent risk of devastating consequences for the entire planet. Such an existential threat to all humankind should no longer be handled by a few states as a national security matter to the detriment of the security interests of the vast majority of states.
Obligations or Commitments?
Another fundamental divergence of views between nuclear-weapon states and non-nuclear-weapon states pertains to the status of NPT obligations and commitments to nuclear disarmament and the achievement and maintenance of a world without nuclear weapons.
Nuclear-weapon states look on such weapons primarily from a national security perspective. Decisions about nuclear weapons are considered to fall under strictly national prerogatives.
Nuclear-weapon states make a clear distinction between the NPT nonproliferation obligations that are legally binding and operationalized in detail on the one hand and the NPT nuclear disarmament commitments on the other hand. Article VI remains the only legally binding multilateral nuclear disarmament obligation, but it is formulated so vaguely, for obvious historical reasons, that “the pursuit of negotiations in good faith” is largely left open to interpretation and is implemented very loosely.
Moreover, the link between “nuclear disarmament” and “a treaty on general and complete disarmament” can be interpreted in a way that nuclear disarmament will be achievable only as part of a global security environment in the distant future, as a sort of end point of international relations. 
Nuclear-weapon states view the numerous nuclear disarmament commitments agreed by consensus at NPT review conferences as only political and therefore nonbinding. They make a clear distinction between compliance with nonproliferation obligations and implementation of nuclear disarmament commitments. They view the former as the fundamental measure of compliance with the NPT, but the latter is measured only against a set of nonbinding political commitments.
One could well conclude that nuclear-weapon states agreed to the disarmament commitments only because, in their interpretation, these provisions do not qualify as legally binding commitments.
Non-nuclear-weapon states look on the outcomes of past review conferences as a further development and operationalization of the NPT nuclear disarmament obligations of Article VI. They see a close conceptual connection between their agreement to be bound by the nonproliferation provisions and the implementation of the agreed disarmament undertakings and outcomes.
This is particularly the case with respect to the indefinite extension of the NPT in 1995. The non-nuclear-weapon states agreed to the extension on the condition that the nuclear-weapon states take certain nuclear disarmament steps and measures. The NPT membership collectively elaborated these steps at the 2000 and 2010 review conferences.
Today, non-nuclear-weapon states see those commitments as largely unfulfilled or not satisfactorily fulfilled. In their eyes, the body of agreed nuclear disarmament undertakings and outcomes in the NPT goes well beyond political declarations of intent. These states see the commitments as quasi-legally binding elements of a deal that has not been honored. In consequence, some non-nuclear-weapon states question the wisdom of the 1995 agreement for indefinite extension.
What Is Credible Progress?
Equally stark differences between nuclear-weapon states and many non-nuclear-weapon states are also evident with regard to the criteria for credible progress in implementing disarmament commitments and obligations. Nuclear-weapon states approach nuclear disarmament and the implementation of Article VI as a series of more or less modest, gradual steps.
These include reductions in the numbers of nuclear weapons, unilateral moratoriums on the production of fissile material or on nuclear testing, and technical steps such as a glossary of nuclear terms being developed by nuclear-weapon states.
On the multilateral front, the first step would be the Comprehensive Test Ban Treaty (CTBT), followed by a treaty prohibiting the production of fissile material. These steps, however, are conditioned on being compatible with maintaining nuclear strategic stability and continued reliance on nuclear weapons until a time when the conditions for nuclear disarmament exist.
Nuclear-weapon states argue that there is no contradiction between the maintenance of nuclear strategic stability and their professed support for nuclear disarmament. Consequently, the continued reliance on nuclear weapons in military doctrines and the maintenance of, modernization of, and long-term investments in nuclear weapons and the nuclear weapons infrastructure are compatible with Article VI.
Non-nuclear-weapon states recognize that nuclear disarmament is technically complex and will need time and a series of interconnected steps.
Nevertheless, credible progress on nuclear disarmament, in the eyes of these states, would require discernible changes in the policies of nuclear-weapon states and a clear direction toward nuclear disarmament and a world without nuclear weapons.
These changes have been promised in successive NPT review conferences, but have not happened and do not appear to be being pursued with determination. The continued reliance by nuclear-weapon states on nuclear weapons until an unspecified point in the future is seen as contradictory to the spirit and letter of agreed nuclear disarmament commitments and obligations.
Progress on the other multilateral steps remains equally elusive. The CTBT has not entered into force, and the multilateral forum tasked with negotiating a treaty on fissile material — the Conference on Disarmament (CD) in Geneva — has been dysfunctional for a decade and a half. Nearly 20 years after the extension of the NPT, the first foreseen multilateral step has not been completed, and the second is nowhere in sight.
As a consequence of this overall picture, there is widespread doubt that the nuclear-weapon states are acting on their nuclear disarmament rhetoric with a sense of urgency. Rather, many see a systematic approach that aims to maintain the nuclear status quo for as long as possible.
These different views and expectations regarding the implementation of nuclear disarmament commitments and obligations clearly are very difficult to reconcile. The key question is the extent to which they are still reconcilable or whether the differences of views are such that reaching a broadly acceptable common understanding has become impossible.
Interestingly, it could be precisely the consensus agreement on the 2010 NPT action plan that clarifies that the NPT nuclear disarmament debate suffers from fundamental inherent contradictions and that new approaches may be required.
The action plan provides a tool for the NPT community to measure progress on nuclear disarmament.  In an interpretation widely shared among non-nuclear-weapon states, implementation of the action plan would require, in addition to further reductions in stockpiles, progress on the following key indicators:
â€¢ changes in nuclear doctrines to diminish the role of nuclear weapons;
â€¢ reduction of the operational readiness and lowering of the alert status of nuclear weapons;
â€¢ increases in the level of transparency;
â€¢ tangible progress toward entry into force of the CTBT; and
â€¢ overcoming the paralysis of the United Nations’ so-called disarmament machinery, especially in the CD.
Barring some unexpected developments in the nuclear-weapon states, it appears highly unlikely that the 2014 reporting by nuclear-weapon states will point to significant developments on any of these indicators. More than anything else, however, the plans for the modernization and upgrading of nuclear arsenals and the supporting infrastructure that are foreseen in nuclear-weapon states and the accompanying budgetary allocations will likely demonstrate the determination of these countries to rely on nuclear weapons for the long term.
The 2015 NPT Review Conference thus could become the moment when the constructive ambiguities, as some see them, on nuclear disarmament from previous review conferences’ final documents are replaced with clarity: that nuclear-weapon states are not prepared to accept the non-nuclear-weapon states’ view of the urgency and necessity of nuclear disarmament and will continue to argue for a so-called step-by-step approach, irrespective of how unpromising or implausible this approach may be.
The sluggish implementation of the nuclear disarmament commitments of the 1995, 2000, and, likely, the 2010 review conferences shows that this track record is a clear indicator of how far and fast nuclear-weapon states are willing to go in the framework of the NPT.
The Way Forward
The NPT debate has been based thus far on a broadly shared agreement among NPT parties that, in spite of all its flaws, the treaty is beneficial to the international community as a firm legal basis for nuclear nonproliferation, as the only multilateral nuclear disarmament framework, and as a means to facilitate access to peaceful uses of nuclear energy. This still holds true, and NPT parties continue to underscore this point in their public statements.
This agreement cannot be taken for granted. Ultimately, the value of legal frameworks is not cast in stone. It needs to be demonstrated continuously and be grounded in a core understanding of credibility and fairness that is shared among the entire membership. Most international treaties represent difficult compromises and have contradictions built into them. For every legal norm, however, there is only a finite level of inconsistencies or credibility deficits that can be absorbed before the fundamental equilibrium is disturbed.
On this front, the NPT is in serious trouble. For the reasons pointed out above, its credibility as a framework for nuclear disarmament is in jeopardy. If nuclear-weapon states want to halt an erosion of the treaty, they need to take the views and expectations of non-nuclear-weapon states on nuclear disarmament much more seriously. The tactics of playing for time within the NPT and the other multilateral forums will not work for much longer. This NPT review cycle is crucially important.
There is also a race against time. The multilateral nuclear disarmament and nonproliferation regime is at a crossroads. Some of the key parameters of the nuclear age, namely, that only a few states are in possession of nuclear weapons and have the required knowledge and technological capabilities, are fast losing their validity.
The nuclear technological threshold is still high, but it is falling rapidly. More and more states and perhaps nonstate actors will be in a position to reach or cross the line of nuclear weapons capability. The decision to do so will increasingly be based on political rather than technological considerations.
The potential consequences of this trend are an increasing risk of nuclear weapons proliferation and use. A focus on nonproliferation alone, as important as it is, is ultimately doomed to fail. With the technological threshold getting lower and the interest in nuclear technology getting higher, the only long-term approach is to build credible political and legal barriers against nuclear weapons.
As long as nuclear-weapon states and their allies regard nuclear weapons as a legitimate security hedge for themselves, efforts to counter nuclear proliferation will always suffer from a fundamental contradiction and credibility deficit. Both the possession of nuclear weapons and reliance on nuclear deterrence are drivers for proliferation.
Nuclear-weapon states may argue that proliferation is the only real challenge to the integrity of the NPT, whereas procrastination or slow progress on nuclear disarmament is not. This line of argument is self-serving and alarmingly shortsighted.
In order to maintain global support for the NPT and the entire nuclear disarmament and nonproliferation regime and to halt the spread of nuclear weapons, nuclear-weapon states need to add much more credibility to their own nuclear disarmament efforts. Through their own example, nuclear-weapon states have the prime responsibility to prevent proliferation, but they urgently need to realize that, in the final analysis, they cannot have it both ways.
The alternative would be an irreparable undermining of the NPT with the potential consequence of more and more actors seeking to develop nuclear weapons. The conclusion is clear: nuclear disarmament and nonproliferation efforts can only be achieved in parallel.
In view of the mounting concerns about the value of the NPT as an instrument of nuclear disarmament, it is encouraging that non-nuclear-weapon states have focused on this issue with a renewed sense of urgency.
Several initiatives have been launched as a consequence of non-nuclear-weapon states’ commitment to facilitating a more focused implementation of Article VI in line with Action 1 of the 2010 action plan. One of these initiatives was UN General Assembly Resolution 67/56,  which established an open-ended working group that met successfully during 2013 and produced a substantive report  on proposals for the achievement and maintenance of a world without nuclear weapons.
Another important manifestation by the international community of the shared wish to see progress was the convening on September 26 of a high-level meeting of the UN General Assembly on nuclear disarmament. 
The most remarkable development is the increased focus on the humanitarian consequences of nuclear weapons. This is an important shift in the discourse on nuclear weapons away from the traditional, narrow national security policy focus of possessor states.
The 2010 NPT Review Conference expressed “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons.”  An important conference in Norway in March focused on this issue, and a follow-up conference will take place in Mexico next February. Recently in the UN General Assembly First Committee, 125 states delivered a joint statement underscoring their shared concern about the humanitarian consequences of nuclear weapons, building on several previous joint statements in different forums. 
As long as nuclear weapons exist, the risk of their use by design, miscalculation, accident, or madness remains real. Any use of nuclear weapons would cause unthinkable humanitarian emergencies and have catastrophic global consequences on the environment, climate, health, social order, human development, and economy. The more the world understands about the global humanitarian consequences of nuclear weapons, the stronger the case against them becomes.
Viewed against such a background, nuclear weapons are not reconcilable with a 21st-century understanding of international law and, in particular, international humanitarian law. In an age of globalization and in light of the uncontrollable destructive capability of nuclear weapons, such a broadening of the discourse was overdue.
These aspects should be at the core of the international community’s nuclear disarmament and nonproliferation efforts. Given the increased global attention, it is now clear that the humanitarian dimension will play a central role in the NPT discourse and beyond.
Nuclear-weapon states have boycotted or rejected the above initiatives with the utterly unconvincing argument that they would distract from the NPT and the implementation of the 2010 action plan. In truth, these initiatives do not distract from anything, but rather focus the attention of governments and the wider public on the importance of achieving a world without nuclear weapons.
Civil society will likely play an increasing role in a broader nuclear weapons debate, a tread that already is evident today. Pressure for greater transparency and scrutiny of governmental action and priorities will increase, further coupled with a trend of more global interaction and cooperation. Against the background of a broader societal debate, it will become more and more difficult to sustain the arguments in favor of retention of nuclear weapons.
Instead of resisting and acting to undermine efforts by non-nuclear-weapon states and civil society, nuclear-weapon states should start to embrace a different discourse on nuclear weapons themselves and move seriously toward their elimination. This would be the most sustainable and credible way of contributing to the integrity of the NPT and retaining it as a key instrument of collective security.
Alexander Kmentt is director of disarmament, arms control, and nonproliferation in the Austrian Federal Ministry for European and International Affairs. The views expressed in this article are the author’s and do not necessarily reflect those of the ministry.
1. Article VI states, “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.”
2. 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Final Document,” NPT/CONF.2010/50 (Vol. 1), 2010, pp. 19-31 (hereinafter 2010 NPT action plan).
3. Ibid., p. 21 (Action 5).
4. The 1996 advisory opinion of the International Court of Justice (ICJ) provided a strengthened and expanded interpretation of the obligation for nuclear disarmament under international law. It underscored that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament.”
According to the ICJ, this obligation is universal, thereby going beyond the issue of NPT universality. Nevertheless, there remains scope for interpretation in the advisory opinion regarding what constitutes “pursuing nuclear disarmament negotiations in good faith” in concrete terms.
Although advisory opinions carry a great deal of authority, they are not binding on states. “Legality of the Threat or Use of Nuclear Weapons: Advisory Opinion,” I.C.J. Reports, 1996, http://www.icj-cij.org/docket/files/95/7495.pdf.
5. See Ramesh Thakur and Gareth Evans, eds., “Nuclear Weapons: The State of Play,” Centre for Nuclear Non-Proliferation and Disarmament, 2013, http://cnnd.anu.edu.au/files/2013/state-of-play-report/Nuclear-Weapons-The-State-of-Play.pdf; Gaukhar Mukhatzhanova, “Implementation of the Conclusions and Recommendations for Follow-On Actions Adopted by the 2010 NPT Review Conference,” James Martin Center for Nonproliferation Studies, April 2012, http://cns.miis.edu/opapers/pdfs/120419_cns_npt_monitoring_report.pdf.
6. UN General Assembly, A/RES/67/56, January 4, 2013.
7. UN General Assembly, “Proposals to Take Forward Multilateral Nuclear Disarmament Negotiations for the Achievement and Maintenance of a World Without Nuclear Weapons,” A/68/514, October 9, 2013.
8. UN General Assembly, A/RES/67/39, January 4, 2013.
9. 2010 NPT action plan, pp. 19-31.
10. Dell Higgie, “Joint Statement on the Humanitarian Consequences of Nuclear Weapons,” October 21, 2013, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com13/statements/21Oct_Joint.pdf.
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