Strengthening Legitimacy and Political Will for Nuclear Trade Controls

Source: Heinrich-Böll-Stiftungen

In responding to the challenge of nuclear proliferation, nuclear trade controls and nuclear disarmament have separate missions. Disarmament is a process to reduce, remove, and eliminate nuclear weapons (1). Nuclear export controls instead are intended to prevent states or non-state actors from obtaining the means to possess nuclear arms.

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) entered into force in 1970, thereby providing a mechanism allowing these two missions to be complementary. Nearly all 190 states parties understand the treaty as a bargain consisting of obligations in three areas: nonproliferation, access to nuclear technology, and disarmament. Put simply, if “haves” disarm and share their nuclear knowledge for peaceful purposes, the “have nots” will not obtain nuclear weapons, and they will cooperate with the “haves” to prevent others from obtaining them.

The genesis of multilateral nuclear export controls can in fact be assigned to the NPT itself, since Article III.2 obligates states parties not to provide nuclear items to non-nuclear weapon states unless IAEA safeguards are applied. Nearly immediately after the treaty entered into force, the NPT’s Zangger Committee established which commodities would be subject to constraints under Article III.2, as well as conditions and procedures governing export of these items.

Erosion of the NPT Basis for Trade Controls

From the outset, however, the locus of decision-making on nuclear trade controls began shifting from the NPT to the Nuclear Suppliers Group (NSG), an association of the world’s nuclear “haves” which came into existence after India in 1974 tested a nuclear explosive device using materials which India had pledged to supplier states it would confine to peaceful-use applications. The NSG’s founders had no confidence that the NPT alone would halt the spread of nuclear arms.

In 1978, the NSG published guidelines that exceeded the stipulations of the NPT by establishing additional criteria that recipient states must meet to import nuclear goods. These included bans on explosive uses and production of high-enriched uranium, requirements for physical protection, and restrictions on retransfers and uranium enrichment and reprocessing.

Events during the 1990s contributed to the rise of the NSG as well as to conditions that encouraged an NPT-based challenge to the NSG’s supremacy. The discovery in 1991 that Iraq had a secret nuclear weapons program relying on dual-use goods galvanized the NSG to expand the scope of its controls still further beyond what the NPT required.

In 1995 supplier states linked the NSG to the NPT by requiring full-scope IAEA safeguards as a condition of supply of nuclear items to non-nuclear weapon states. This link was broken in 2008 when the NSG’s members followed the U.S. and agreed to exempt India, a non-NPT state, from its guidelines. This step marked a further departure from the NPT as the basis of multilateral trade controls.

Threats to Effectiveness

The NSG has continued to tighten nuclear trade controls, most recently in 2011 on enrichment and reprocessing, and it is currently adding to its commodity control lists. But it faces a number of challenges to its future effectiveness:

• Growing volume of nuclear commerce: After a quarter century when demand for nuclear technology for power generation lapsed, many countries are now considering building nuclear power reactors to meet future energy demand.
   
• Globalization: In response to competition pressure, nuclear industry firms are outsourcing more equipment supply beyond established advanced countries and are designing complex project procurement strategies.
   
• Brokering and Transit Trade: Nuclear exports in the past were point-to-point transactions. Today and in the future they will increasingly involve intermediaries in states which are outside the NSG and without infrastructure to control nuclear trade.
   
• Emergence of New Nuclear Suppliers: A number of developing countries with little historical commitment to nuclear export controls, including China and India, will be major nuclear supplier states in years to come. Separately, nuclear knowledge is spreading, hand in hand with economic development worldwide. Perhaps 150 countries are now producing commodities which could be described as dual-use nuclear goods.
   
• Intangible Technology Transfer: In the future more nuclear technology will be transferred using computers and the Internet. There are no comprehensive multilateral understandings for controlling these transfers.

The NSG’s participating governments are aware of the above challenges. In May 2011, the Carnegie Endowment conducted a workshop for the NSG’s participating governments during which 60 specific recommendations to address these challenges were proposed and discussed. The recommendations are available here: http://carnegieendowment.org/files/future_nsg.pdf

Legitimacy and Political Will

Separately, related to the NSG’s above-described weakened relationship to the NPT, the multilateral export control system faces a separate challenge of political will and legitimacy.

During the Cold War, the superpowers functioned as dual enforcers of global nonproliferation norms and standards. The breakdown of the balance of terror led to an erosion of nonproliferation enforcement. The U.S. emerged at the end of the 1990s as a global hegemon but has encountered resistance from revisionist states, including in the nuclear arena where the NPT continues to serve as the point of departure for most states.

The NSG founders’ prediction that the NPT would not prevent the spread of the means to develop nuclear weapons proved correct. But with the passage of time, the casting adrift of the NSG from the NPT had a profound and divisive impact on international nuclear relations.

The end of the Cold War led to an erosion of bipolar nonproliferation enforcement and the emergence of a U.S. hegemony which is now being challenged by developing countries which insist that the NPT’s bargain on disarmament and access to nuclear technology be met. U.S. credibility was severely damaged when in 2003 it fought a war of nonproliferation with Iraq after which no nuclear weapons were confirmed. Since 2003, when Iran framed the crisis over its nuclear program in terms of NPT Articles IV and VI, the Non-Aligned Movement – founded in reaction to the Cold War’s bipolarity – now directly challenges U.S. hegemony on nuclear nonproliferation issues. A majority of NPT parties are members of the NAM.

Today most non-nuclear weapon states in the NPT, and in particular developing nations, insist that their right under Article IV to exploit nuclear technology for peaceful uses be honored by advanced countries. Many of these states are unprepared to accept additional restrictions on their nuclear activities – including trade controls – unless advanced states demonstrate that they are fulfilling their obligations under both Article IV and Article VI. The NSG may be viewed as illegitimate so long as the “haves” do not disarm and do not share their technology.

Universalism versus Incrementalism

The above challenges in effectiveness and political will leave us with two responses.

One option is global universalism. In the realm of multilateral nuclear trade controls, this option implies that a comprehensive global nuclear trade treaty should be negotiated by all states to establish a truly legitimate basis for restraints. The NPT itself could not serve as the basis for such a treaty, since important countries in possession of nuclear weapons and nuclear fuel cycle capabilities – India, Israel, North Korea, and Pakistan – are not parties to the NPT.

The recently successful negotiation of a global Arms Trade Treaty (ATT) covering conventional arms might renew interest in the negotiation of an export control treaty for nuclear commodities.

A decision to negotiate such an arrangement in the nuclear area would entail certain risks. These would include the possibility that the legitimacy of the existing fabric of NSG-based and other controls would diminish for as long as the pending treaty were under negotiation. That dilemma did not challenge negotiators of the ATT because there was no comprehensive global regime for controlling the export of conventional weapons. It is also doubtful that all states which are party to the negotiation of a nuclear export control treaty would agree on terms and conditions for trade. This would especially be the case should the ultimate source of conflict over nuclear trade controls prove to be programmatic North-South differences in principle among states about equity, development, and responsibility.

The alternative to the “treaty method” to address challenges to nuclear trade control legitimacy and credibility would be an incremental approach. In general, this would commit NSG participating governments to take the following actions:

• Develop a consensus understanding on the NSG’s relationship to the NPT: The NSG’s mission has never been based on the NPT. Since the 2008 decision on India, some participants favor the NSG establishing a relationship with the treaty, including making a formal commitment reflecting NPT Article IV.
   
• Address lack of compliance with NSG guidelines: First Russia, then China exported nuclear power reactors to India and Pakistan, respectively. China plans more nuclear exports to Pakistan. Greater compliance means greater credibility. Members must be held accountable for not adhering to the guidelines.
   
• Prepare for future expansion of membership: Globalization, economic development, trade, and diffusion of knowledge will expand the number of nuclear supplier states. Which states will join the NSG? What will be the criteria for admitting future participants?
   
• Ensure long-term survival of the export control mission: Many future suppliers of nuclear equipment and materials will not be advanced or Western countries with a track record of export control commitments. The NSG must make sure that in future all participants share basic understandings. From the beginning, the U.S. has led the world in export control rule-making. In the future, that may not be the case.
   
• Intensification of Outreach: In the future, more countries will have capabilities and assets which can assist clandestine nuclear programs. The NSG must effectively reach out to persuade these countries to adhere to its guidelines. It must build on United Nations Security Council Resolution 1540 calling on all states to establish effective export controls. The more credible, universal, and legitimate the NSG is, the more successful will be efforts to enlist countries to adhere to its rules.

(1) Evans, Graham & Newnham, Jeffrey (1998), The Penguin Dictionary of International Relations, Penguin, London, p. 131.