Chapter 3: Common Responsibilities in the NPT—Shared or Asymmetrical?

Jayantha Dhanapala1

Can an elephant and an ant share responsibilities for their jungle habitat? If this question seems a disrespectful reductio ad absurdum of the well-intentioned argument in Scott D. Sagan’s essay, “Shared Responsibilities for Nuclear Disarmament” (first published in Daedalus, Fall 2009), let me put it another way. Can there be shared responsibilities in the mitigation of climate change between the industrialized West, whose profligate environmental pollution in the past and present is well known as a causal factor of climate change, and little Maldives in the Indian Ocean, whose innocent citizens, pursuing their traditional livelihood of fishing and new opportunities of tourism, face imminent danger of drowning in the rising Indian Ocean because of climate change?

The point of departure in Sagan’s article is the revival of interest in nuclear disarmament in the United States and the world following the publication of Wall Street Journal op-eds in 2007 and 2008 by George Shultz, William Perry, Henry Kissinger, and Sam Nunn and the adoption of their vision for a nuclear-weapons-free world in the 2008 U.S. presidential campaign and, after assuming office, by President Barack Obama. Sadly, the third Wall Street Journal op-ed written by Shultz and his coauthors in January 2010, which called for more money to maintain a reliable nuclear deterrent, muddies the waters and their reputation as disarmament proponents. Sagan’s rebuttals of the critics of the Obama administration’s policy of seeking a nuclear-weapons-free world are well argued.

Sagan reminds his readers that the commitments of the United States under Article VI of the Nuclear Non-Proliferation Treaty (NPT) to pursue nuclear disarmament are actually reinforced by U.S. law under the U.S. Constitution—hence the gravity of U.S. responsibilities and the firm closure of the escape hatch of American exceptionalism. The gravamen of Sagan’s argument is that nuclear-weapons states (NWS) and non-nuclear-weapons states (NNWS) must share responsibilities on nuclear issues. Applying this argument to Articles IV and VI of the NPT does not, however, help to exculpate the NWS or developed countries, given the text of the Treaty and its negotiating record. Clearly, all articles of the NPT must be viewed holistically, and compliance with all of them is a sine qua non for the enjoyment of NPT benefits. There is, for example, no dispute over NPT parties that the Security Council judges to be in violation of their Treaty obligations being denied Article IV benefits. The question that the NNWS raise is why the NWS are not similarly penalized for failure to honor their Article VI obligations and their Review and Extension Conference commitments, notwithstanding the 1996 Advisory Opinion of the International Court of Justice.

Under Article IV, “all parties” have the “inalienable right” to engage in peaceful uses of nuclear energy and to facilitate and participate in the “fullest possible exchange of equipment, materials and scientific and technological information.” There is clear reference to parties “in a position to do so” to making a contribution either alone or together with other states or international organizations toward the development of the peaceful uses of nuclear energy, “especially in the territories” of NNWS in the NPT, “with due consideration for the needs of the developing areas of the world.”

The above wording places the NPT squarely in the context of the North-South relationship and the global transfer of resources and technology. The development aspect of the NPT has been long forgotten. For decades, developing countries have complained that the developed countries in the International Atomic Energy Agency (IAEA) used their influence to obtain more allocations for safeguards than for technical cooperation, even when the assistance was for non-power projects involving agriculture and medicine. The special assistance program for developing NNWS within the NPT—known as Footnote A projects—was always underfunded. No incentives were offered to the NNWS. Moreover, the developing countries among the NNWS cannot be blamed for the general underfunding of the IAEA. Similar to the budget of the United Nations, contributions to the regular IAEA budget are already shared according to an agreed scale of assessment.

The NPT already requires the NNWS to accept IAEA safeguards to verify their nonproliferation obligations, and some of these states have voluntarily accepted the Additional Model Protocol—the universalization of which is a fresh and logical demand. The predicted expansion of nuclear power has led to fears of the emergence of “virtual nuclear weapon states” and to demands that the NNWS accept further constraints, beyond the terms of the NPT, on the exercise of the “inalienable right” to the peaceful uses of nuclear energy.

In Article VI, although the primary obligation of the NWS for disarmament and nonproliferation that appears in the 1961 Irish-sponsored resolution in the UN General Assembly was deliberately blurred when the NPT was drafted in the Eighteen-Nation Committee for Disarmament, the current wording places the disarmament obligation on each of the parties “to pursue negotiations on nuclear disarmament” in good faith. That the NNWS have done so by, for example, creating nuclear-weapons-free zones through regional treaty arrangements, through collective measures in sponsoring and adopting resolutions in the UN General Assembly, and in working in other multilateral forums is indisputable.

More important, an objective reading of Article VI must conclude that the NWS states and their allies have more capabilities, and consequently more responsibilities, than the NNWS in implementing this Article. In addition, the International Court of Justice’s Advisory Opinion of 1996 makes it abundantly clear that the NWS have special responsibilities and that arguing for “shared responsibilities” here has little credibility. Certainly, the NNWS have their share of responsibilities in all aspects of the NPT—such as signing and ratifying the Comprehensive Test Ban Treaty and the Additional Protocol of the NPT—but to interpret shared responsibility as equal responsibility is mistaken. And yet focusing on what some developed NNWS countries are doing in developing verification technology is relevant.

A multilateral treaty must reflect a mutuality of interests if it is to serve the interests of the international community. The NWS carry responsibilities toward the implementation of the original NPT bargain and past Review Conference declarations. This bargain—legal renunciation of acquiring nuclear weapons by NNWS subject to verification in return for their agreement to use nuclear energy solely for peaceful purposes as “an inalienable right” and the vague and unverified promise of disarmament by NWS—was an unequal one.These asymmetrical obligations have been aggravated by the failure to fulfill serious commitments undertaken in successive NPT Review Conferences andthe Review and Extension Conference of 1995 without which the NPT would never have been extended indefinitely. To argue that NWS responsibilities under Article VI could be affected by the acquisition of nuclear power by NNWS is one-sided, especially given that the “nuclear renaissance” is of recent origin.

The attempt to link Article VI with Article X is correct insofar as the “return to sender” concept regarding benefits accrued under the NPT—although the practical implementation of that will not be easy. To propose, however, that the sovereign right of states to enter and leave treaties freely must be curtailed beyond the terms stipulated in the NPT to encourage implementation of Article VI is illogical when the reverse can also be argued. The indefinite extension of the NPT was secured on the basis of the argument that nuclear disarmament could be assured only if the Treaty were made permanent. When the extension was achieved, no major impact was seen in the reduction of NWS arsenals.

The NNWS will remain wary of arguments that they should assume more responsibilities while the NWS remain guilty of failing their obligations. An inherently discriminatory treaty cannot be strengthened by further discrimination. That is no way to achieve nuclear nonproliferation and nuclear disarmament—two major objectives of the NPT that are inextricably linked. Just as the “the polluter pays” principle applies to climate change, the NWS have the main responsibility for achieving a nuclear-weapons-free world. If there were no weapons, there would be nothing to proliferate.

Endnotes

• 1The views expressed in this comment are the author’s personal views.