Strengthened review process for the NPT in disarray (Non-Proliferation Treaty).
First, the nuclear-weapon states (NWS) as a group rejected any effort directed at enabling the PrepCom to generate an agreed text reflecting current nuclear non-proliferation and nuclear disarmament priorities - following their logic, had India's and Pakistan's nuclear detonations taken place during the PrepCom, the NWS would have rejected any condemnation being expressed by the PrepCom. Second, the NWS rebuffed all attempts to structure the discussion at the 1999 PrepCom, as well as draft recommendations to the 2000 Conference, on setting aside time for discussion on specific items, such as nuclear disarmament, security assurances, or the Middle East resolution. Third, the NWS, which have interpreted the meaning of a strengthened review process in a progressively narrow manner since 1996, took the view that the PrepCom could not report on anything except making procedural preparations and formulating draft recommendations for the next review conference. Fourth, the NWS consistently opposed any and all initiatives made by the non-nuclear-weapon states (NNWS) to deepen the strengthened review process and to promote permanence with accountability.
Practical and moderate suggestions made by countries such as Canada for the PrepCom to produce a rolling report capturing common concepts on the implementation of the Treaty and recording agreed views on NPT-related issues requiring urgent attention (such as ratification and implementation of START II, and commencement of negotiations on a Fissile Material Cut-Off Treaty); (1) recommendations proposed by South Africa on possible products of the strengthened review process, on setting aside specific time at the 1999 PrepCom to discuss NPT Article VI issues as well as security assurances; (2) and moderate language proposed by Egypt on behalf of the Arab group of states on the Middle East nothing that only Israel remained outside the Treaty in that region, were all rejected by the United States and the other NWS - except for France and China which tried unsuccessfully to propose some compromise language - on the grounds of exceeding the mandate of the PrepCom, which was interpreted as focusing solely on procedure and building upon the Chairman's Working Paper from 1997 as updated in 1998.
Strengthening the review process
It is useful to recollect that the original concept of a "strengthened review process" in the context of the extension decision was first elaborated in a Canadian "non-paper" in early 1995, (3) which outlined the characteristics of an "enhanced review process" as comprising, inter alia:
1. retention of the current structure of review conferences (i.e., three main committees to discuss the implementation of the Treaty and ways of strengthening it);
2. investing the preparatory process with a more substantive character (i.e., discussion of both procedural and substantive issues);
3. elaborating, at Review Conferences, indicative targets for compliance with given articles of the Treaty; and
4. establishing a framework for ways of strengthening the Treaty and its implementation.
South Africa, together with Canada and other states, further developed these concepts in the President's Consultations at the NPT Review and Extension Conference (NPTREC), eventually resulting in the set of NPT extension decisions. A political compromise was reached at the NPTREC between the states which feared that in indefinitely extending the NPT the NNWS would lose their leverage as regards the NWS' nuclear disarmament obligations and the states which preferred an unadorned extension of the Treaty without any collateral measures to complement the future implementation of the NPT. The compromise was not only to make all states parties accountable for full compliance with the provisions of the Treaty, but more specifically to hold the NWS to fulfilling their Article VI commitments on nuclear disarmament.
Salvaging the NPT review process
With the strengthened review process now being reduced to a virtual dead letter, what might be done to complete the preparations for the 2000 review conference, with a view to salvaging some vestiges of a strengthened review? The only practical way forward seems to be that based on innovative yet practical initiatives - i.e., devising qualitatively new modalities to promote the review and implementation of the Treaty, in accordance with the NPTREC package of decisions and associated resolution. These might include, for example: redefining the consensus rule; revising the structure of the review process; refocusing the role of the depositaries; and augmenting the role of the chairs.
Redefining the consensus rule
According to the traditional rules of procedure governing the conduct of review conferences, decisions shall be reached by consensus. Should consensus not be reached, voting could be called for under certain circumstances. Given the failure of the 1998 PrepCom, and the record of failures at previous review conferences to produce a consensus final report, perhaps it would be opportune to learn from past mistakes and amend or adapt the rules for decision-making.
Consensus could be redefined as `constructive abstention', i.e., with 186 states parties, consensus could be deemed to have been achieved if all participating states (at PrepCom sessions and at review conferences) agree to a common text except for a very small number (say five to ten which might desist from joining the rest). In this way, a small number of states could not prevent agreement being reached reflecting the views of the preponderant majority. Procedural and factual reports could be issued under the authority of the Chairman, while recommendations promoting the full implementation of the Treaty could be agreed based on a revised consensus rule.
Revising the structure of the review
Since 1985, NPT review conferences have structured the review of the Treaty into three main committees - broadly dealing respectively with nuclear non-proliferation and disarmament, safeguards and export controls, and cooperation in the peaceful uses of nuclear energy. This three main committee structure was devised by the US for the 1985 review conference, in part to provide a committee for the Eastern group to chair. The division of work has not proven especially efficient or conductive to generating agreed reports as three of the previous five NPT review conferences have failed to agree on final documents.
A common sense approach to a revitalized review of the Treaty suggests an article by article approach, factoring in the relevant preambular paragraphs, whereby those articles of the Treaty (such as Article VI on nuclear disarmament) which have yet to be fully implemented could be considered in greater detail.
Refocusing the role of the depositaries
The Treaty does not invest the depositaries with any special privileges or responsibilities, save under article VIII.3 on convening review conferences, and under article IX.5 and 6, respectively, on recording and reporting accessions to the NPT and registering the Treaty pursuant to article 102 of the UN Charter. The review process of the Treaty could benefit from the input of interested states parties, in addition to that provided by the depositaries. The expanded bureau could include several states with a past record of contributing to the review process - and could include among others, Algeria, Argentina, Australia, Canada, Chile, Egypt, Malaysia, Mexico, Morocco, Republic of Korea, South Africa, and Ukraine - and would not only provide useful assistance to the Chair but also reflect a broader constellation of views, that could serve to democratize the process and potentially to facilitate an improved and more productive consultative mechanism.
Augmenting the role of the Chairs
One unfortunate result of the dominant role of the depositaries is their seemingly excessive influence on the Chairs. In some cases Chairs do not receive adequate support from their own national delegations, in other cases political considerations seem to win out. There are unconfirmed reports that in some cases Chairs engage in private consultation with the depositaries, singly or jointly, and their chairmanship, rulings and drafts then tend to be sympathetic to the views of the depositaries, to the detriment (in some cases) of the interests of the majority of states parties and the review process itself.
An innovative approach might be to establish a "troika-plus" whereby the previous, current, and future Chairs, together with an expanded bureau, meet to deliberate on issues relating to the structure and procedure of the review process. Chairs could also rely informally upon the advice and expertise of qualified NGOs and academic experts, as well as NPT anciens.
Procedural issues at the 1999 PrepCom
There are now only 10 working days available to the Preparatory Committee and a number of key items still need to be finalized before the start of the Review Conference in 2000:
1. nomination of the President of the 2000 Review Conference;
2. finalization of the PrepCom report on substantive and procedural issues and recommendations to the Review Conference;
3. provisional agenda of the Review Conference;
4. rules of procedure; and
5. preparation and consideration of background documentation.
In addition, the Committee at its third session may have to consider and to allocate time for the consideration of certain substantive items separately from the cluster debates, as well as either to further develop the 1997 (and 1998) Chairman's working paper(s) and the official documents submitted by delegations at the previous two sessions, or to start anew in drafting a report and recommendations. The existing documentation from the first two sessions of the PrepCom alone comprises over 100 pages with at least 50 official documents submitted by states. This documentation and inventory of proposals is "subject to review and updating" and no agreement can be reached or finalized on recommendations to the review conference "pending final agreement on all draft recommendations at the last session."
An efficient way of dealing with these documents and proposals might be to discuss and streamline them, dividing them by subject matter under the appropriate articles of the Treaty or, failing that, within the appropriate clusters, and to discard duplicate proposals rather than introducing additional new ones for discussion in the cluster deliberations.
The 1999 PrepCom will also have to devote time to denouncing the two rounds of nuclear detonations conducted by India in mid-May and the retaliatory tests conducted by Pakistan roughly two weeks later. In this context, it would be useful to recognize that India's and Pakistan's nuclear tests cannot change the nuclear non-proliferation regime architecture. Neither India nor Pakistan, nor Israel for that matter, can be recognized as NWS under the NPT. Their status continues as nuclear-weapon-capable states - essentially pariahs as regards the NPT regime - and nuclear testing (or even deployment of weapons) does not denote any substantive new status. On the other hand, recent developments in South Asia attest to the weakness and the hypocrisy of current non-proliferation and disarmament strategies directed toward that region and other regions. Uniform and harmonized anti-proliferation strategies need to be devised and implemented in South Asia and the Middle East, complemented by continuing progressive efforts to reduce and eliminate the nuclear arsenals of all five NWS.
The NPT is the only legally binding framework preventing the further proliferation of nuclear weapons while at the same time committing the nuclear weapon states to nuclear disarmament. The set of decisions, including the Middle East resolution, agreed at the 1995 NPTREC not only created the conditions for the indefinite extension of the Treaty but also raised expectations regarding permanence with accountability. Thus all states parties were to have committed themselves to work constructively toward fulfilling these expectations in order to promote the full implementation of the NPT through a strengthened review process. Should states fail to faithfully live up to their commitments or be unable to find the common ground that ensures further progress in nonproliferation and nuclear disarmament, they risk an uncertain and insecure future. In this context, it is instructive to recall the prescient words of Ambassador Jayantha Dhanapala (President of the 1995 NPTREC):
If there is naked cynicism on the part of the nuclear-weapon states and a total disregard of nuclear disarmament commitments ... then we might see not just one or two countries for individual reasons wanting to opt out ... but a major threat of an exodus from the treaty using Article X.1 as an exit clause ... is a very grave danger. We must never ever let the Treaty be in jeopardy, and for that there has to be progress in nuclear disarmament. (4)
The challenge surely is for the NWS in particular, as well as for all NNWS parties to the Treaty, to ensure that the dark scenario sketched out by Ambassador Dhanapala never comes to pass, but that the global nuclear non-proliferation norm is continuously strengthened along with progressively greater nuclear arms reductions involving all five NWS leading to a nuclear-weapon-free world.
Tariq Rauf is Director, International Organizations and Nonproliferation Project, Center for Nonproliferation Studies at the Monterey Institute of International Studies. He has served, for many years, as a member of Canada's delegation to various NPT fora. The views expressed here are purely personal and do not necessarily reflect those of the Government of Canada or any other organization. This is an abridged version of an article that originally appeared in Disarmament Diplomacy (No. 26, May 1998), and is published here with the permission of The Acronym Institute.
(1) NPT/CONF.2000/PC.II/34 (Canada).
(2) NPT/CONF.2000/PC.II/12 and 17 (South Africa).
(3) Non-Proliferation, Arms Control and Disarmament Division, Department of Foreign Affairs (Canada), A Non-Paper on Strengthening Review Conferences, (Ottawa: March 1995), unpublished.
(4) Rebecca Johnson, interview with Ambassador Dhanapala (New York: 13 May 1995) - see "Indefinite Extension of the Non-Proliferation Treaty: Risks and Reckonings," ACRONYM No. 7, September 1995, p. 67.
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|Date:||Jun 1, 1998|
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