IFPA-Fletcher Conference “Nuclear and Non-Nuclear Forces in the 21 st Century” December 14-15, 2005 Grand Hyatt Washing

1. The Security Case for A Tougher Reading of the NPTByHenry SokolskiExecutive DirectorThe Nonproliferation Policy Education Centerwww.npec-web.orgnpec@npec-web.org202-466-4406 IFPA-Fletcher Conference “Nuclear and Non-Nuclear Forces in the 21st Century” December 14-15, 2005 Grand Hyatt Washington Hotel Washington, DC

2. Is the NPT Now A Bad Idea: Depends On One’s Reading of It • Strong security alliances do help retard proliferation • But choice between enhancing nuclear arms to back allies or reducing nuclear arms & losing allies is a false one: • Total Disarmament is a distant prospect, nuclear reductions have been propelled by improved military science since the l970s • Strong alliances increasingly depend more on non-nuclear factors than on nuclear ones. • NPT as it’s currently interpreted -- assuring all nations a “per se” right to what’s needed to come within weeks of bomb -- is worse than no restraints. It’s also legally & historically wrong. • A proper reading of the nuclear rules (including the NPT), is critical to strengthen alliances and US security. The alternative -- a Nuclear 1914 – an unmanageable free for all.

3. Has the NPT Worked? Realists’ Answer – Hardly or Not At All • Nuclear-backed alliances blocked much more proliferation than NPT (e.g., Italy, Germany, Japan, Taiwan, RoK, Switzerland, Sweden, Australia, Spain) • IAEA cannot detect covert nuclear activities and will not be able to detect diversions from declared nuclear bulk handling facilities (e.g., enrichment, fuel fabrication of MoX and HEU, reprocessing, UF6, etc. in Iran, DPRK, India, Japan, Brazil, South Africa and beyond) • Article IV right to peaceful nuclear energy has been read to allow states to come within days or weeks of having a bomb – e.g., Iran and DPRK – and to subsidize unsafeguarable, uneconomical nuclear projects – e.g., Algeria, Japan, Brazil, Pakistan, India.

4. Sounder View Turns On What We Do Now • “We shouldn’t make our mistakes hereditary” – A. Wohlstetter • Must we continue to misread Article IV as granting a “per se” right to any nuclear technology, much less to guarantee states the means to come within days of having a nuclear arsenal? • Must we continue to encourage the IAEA to attempt what it cannot do (e.g., safeguard bulk handling facilities or become a nuclear spy agency) rather than it to do better what it can do –nuclear material accountancy of certain key materials? • The regret for not correcting our these mistakes easily exceeds the benefits of recognizing the errors and proceeding as if they cannot be remedied

5. More Studied Historical Legal Analyses Challenge Popular View of NPT • U.S. ACDA, International Negotiations n the Treaty on the Nonproliferation of Nuclear Weapons, 131 (1969) • NPT history and legal analyses written 1978-79 for ACDA, Wohlstetter, et. Al. Towards A New Consensus on Nuclear Technology 34-35 (ACDA Report No. PH-78-04-832-13) (July 6, 1979), including Art Steiner, “Article IV and the ‘Straightforward Bargain’)” (PAN Paper 78-832-08), in Idem. Vol. II. Supporting Papers • 1993 Eldon V.C. Greenberg, The NPT and Plutonium (Washington DC: Nuclear Control Institute, 1993).

6. An NPT Right to the “Entire Fuel Cycle” ? • NPT aim as stated in a 1965 General Assembly resolution GA Res. 2028 (XX) Nov. 19, 1965) was to write a treaty “void of loop-holes which might permit nuclear or non-nuclear Power to proliferate, directly or indirectly, nuclear weapons in any form” • Enrichment and reprocessing not mentioned in the NPT Text • Spanish, Mexican NPT proposals to make sharing “the entire technology of reactors and fuels” a “duty” explicitly rejected in 1967. • Swedish NPT negotiators’ interest in setting forth criteria against nuclear fuel making. • “Inalienable right” to peaceful nuclear energy only available if exercised “in conformity” with the NPT’s other prohibitions • Standard legal practice favors tight construction

7. IAEA Safeguarding Criteria • Timely detection of diversions of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of bombs with 90-95% probability within time needed to convert material into bombs • Conversion times, 7-10 days for pu and HEU, 4-12 weeks for spent fuel, 12 months for LEU

8. Comply with NPT stricture against “manufact- ur[ing] or otherwise acquir[ing]” the bomb. (Art. II) Be able to be verified in a manner that would “prevent[ ] diversions of nuclear energy from peaceful uses to nuclear weapons” (Art. III) be “beneficial” (NPT preamble speaks of assuring that the “benefits of peaceful nuclear energy” be made available) “Peaceful,” Nuclear Activity Protected by the NPT Must:

9. Can Enrichment, Reprocessing Be “Safeguarded”? • NPT negotiators convinced would be possible eventually but conceded not yet in hand • Statements of concern: El Baradei, “the margin of security under the current non-proliferation regime is becoming too slim for comfort.” Bush, NPT is being “cynically manipulated” to allow states to get within days of having bombs • British and Japanese experience with bulk handing facilities – many of bombs’ worth of fissile gone unaccounted for annually

10. NPT Negotiators’ Economic Expectations Do Not Equal Treaty Guarantees • Most were also “convinced” full fuel cycle would be economically imperative for all nations • But this economic expectation has not yet been realized • Such expectations certainly should not be viewed as being an NPT guarantee

11. America’s Original Understanding of What the NPT Allowed: No “Per seRight or Violation” to Make Nuclear Fuel “.. it is doubtful that any general definition or interpretation, unrelated to specific fact situations could satisfactorily deal with all such situations…facts indicating that the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show non-compliance…while the placing of a particular activity under safeguards would not, in an of itself settle the question … it would …be helpful in allying any suspicion…{civilian enrichment} would not be a ‘per se’ violation (of the NPT. Instead, violations would turn on “specific fact situations” -- ACDA Director William Foster US Senate NPT Ratification Hearings

12. Recent Official Recognition of These Points • French Non-paper to NPT Preparatory Review Conference May 2004 • Thought pieces within certain governments • US NPT Review Conference Representative statement that no per se duty exists for nuclear states to assist others to enrich or reprocess.

13. Hurdles to Implementing this View • Are we willing to distinguishing what nuclear activities and materials can be safeguarded from those that can only be monitored (universally or regionally)? • We will be serious enough about discouraging unnecessary, “uneconomical” fuel making to also discourage our friends and ourselves from doing it? • Will we back restraints on new reprocessing construction? • e.g., Japan and US • Multilateral “fuel processing centers” • Can we back even interim limits on net enrichment expansion? • Allow enrichment modernization but no net capacity increase for 5 or more years: (in US, and France, Russia, Brazil) • Rationalize enrichment R and D to distinguish between Iran on one hand and Canada and Australia on the other?

14. Where Are We Headed Assuming These Challenges Are Not Met? “The regime will not be sustainable if scores more States Develop the most sensitive phases of the fuel cycle and are equipped with the technology to produce nuclear weapons on short notice – and, of course, each individual State which does this only will leave others to feel that they must do the same. This would increase all of the risks – of nuclear accident, of trafficking, of terrorist use, and of use by states themselves.” – The Secretary – General of the United Nations, NPT Review Conference, May 2, 2005

17. Fallout of Continuing With the Popular & Realist Views of NPT & Article IV • A gutting of the nuclear rules that will make other sound alliance-building ideas US is pushing much more difficult –1540, PSI, CTR, etc. • Virtual elimination of economic tests regarding “peacefulness” – e.g., the case of Iran • Encouraging the IAEA to water down its already too generous safeguards standards for day to day material accountancy and to be used more and more merely to examine accusations of cheating made by others very, very late in the day • Undermining of Libya model – where nations can retreat to complying with the NPT to explain their complete abandonment of all nuclear weapons-related programs • A world increasingly full of nuclear-ready states that either will challenge US interests or be more inclined to go their own way when called upon to support the US or its friends – e.g. a world full of Frances and Irans