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Article X and Other Issues: Coping with Treaty Withdrawal and Reforming the NPT Process

Christopher A. Ford, United States Special Representative for Nuclear Nonproliferation
Statement to the 2nd Session of the Preparatory Committee for the 2010 Review Conference of the Treaty on the Nonproliferation of Nuclear Weapons
Palais des Nations, Geneva
May 7, 2008

So far, during this second session of the Preparatory Committee for the 2010 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), we have had valuable opportunities to share views with one another on many issues of great importance to States Party within the nonproliferation regime – from the core NPT issue of ensuring compliance with nonproliferation obligations, through the Treaty’s provisions on promoting the peaceful uses of nuclear energy and on nuclear disarmament, to the issue of NPT universality. Those discussions, however, have not exhausted the list of issues of significance in the NPT regime. I would like, therefore, to address two further points of importance: how best to deter and respond to the prospect of withdrawal from the Nuclear Non-Proliferation Treaty by countries in violation of its provisions, and how we can help the processes of the five-year NPT review cycle function better and more sustainably over time.

NPT Withdrawal by Violators

We have been discussing withdrawal issues in NPT fora ever since North Korea declared in 2003 that it was suspending its suspension, as it were, of the withdrawal from the Treaty that it first announced in 1994. It is important to address the issue of withdrawal by Treaty violators promptly and effectively, lest others be tempted to conclude that the easiest response to being caught in noncompliance with their obligations is not to return to compliance, but, rather, simply to leave the regime.

In two years’ time, States Party will face the challenge of articulating specific conclusions about how best to achieve the objectives of the Treaty in today’s world. In the past, several Review Conferences have not reached consensus agreements. In order to maximize the chances that the current review cycle will produce a constructive consensus, U.S. officials have been urging other States Party to eschew aiming for a comprehensive document that would set forth detailed views on every single issue before the regime today. Instead, as Parties continue to debate all Treaty-related issues, we believe that it would be most productive to set our sights, more modestly, upon developing consensus in those key areas that seem “ripe” enough to offer the prospect of agreement in 2010.

One of those “ripe” areas, we believe, is the issue of deterring and responding to withdrawal by NPT violators. Let me be clear about what we mean. We do not believe that consensus will be possible upon any measures designed to make withdrawal from the Treaty, in itself, more difficult. All States Party possess a clear right to withdraw, which cannot be eliminated without amending the Treaty. We also do not believe that it would be appropriate to penalize withdrawal per se – for the drafters of the Treaty clearly (and reasonably) envisioned that circumstances of supreme national interest could arise in which a State Party would feel the need to withdraw from the NPT when confronted with a threat to its supreme interest. We appreciate that there are some who believe that all withdrawal should be made more difficult, but we have focused our efforts upon the narrower issue of withdrawal specifically by violators – where we believe there is the most common ground among States Party.

Withdrawal from a treaty does not absolve a state of any violation of the treaty that it committed while still a party. Therefore, should a Party withdraw from the NPT before it remedies its noncompliance, it must remain accountable for those violations. Accordingly, the international community should respond appropriately to withdrawal by a violator of the NPT – especially where the perpetrator wishes to continue the course of action that created the violation in the first place. Moreover, to the extent that we are prepared, collectively and effectively, to respond to such circumstances, we will help make them less likely. Our preparedness thus will help strengthen the NPT regime, both by deterring violators from withdrawing, and by helping us better cope with the challenges that they would present if such deterrence failed.

Upon this specific point about deterring and responding to withdrawal by violators, we believe that there is, indeed, a very real opportunity for consensus in 2010. To this end, our Delegation and others have circulated a have been in consultations with many delegations about how best to articulate some general principles in this regard.

By articulating clear views on this subject, we hope that States Party can demonstrate that broad support exists for effective responses to the challenge of withdrawal by violators. We thereby would take an important step toward constructive consensus at the Review Conference.

Mr. Chairman, the United States has made clear its specific views and recommendations on the withdrawal issue on multiple occasions, so I will not belabor them here today. In a nutshell, in the event of a notice of withdrawal, the U.N. Security Council should review the matter immediately, consider the consequences, and take any action in response that may be appropriate and consistent with the U.N. Charter. The International Atomic Energy Agency (IAEA) should work to ensure that violators withdrawing from the Treaty do not profit from their ties to the Agency, even as the Security Council seeks to ensure that nuclear material and technology continue to be subject to safeguards.

Unless the Security Council endorses such a step, no government should continue any nuclear supply to a country in violation of the NPT – and any such Security Council endorsement should be revisited in the event that a violator announces its intention to withdraw. No withdrawing or withdrawn violator should be allowed to benefit from materials and equipment that it imported while an NPT Party, and supplier states and the IAEA should seek to halt the use of nuclear material and equipment previously supplied, and to secure the elimination or return of such items.

This hardly exhausts the list of potentially useful responses to withdrawal, Mr. Chairman. Our Delegation urges anyone interested in further details to refer to our remarks and working papers on this subject from both this and last year’s sessions of the Preparatory Committee (PrepCom). As with most recent NPT-related documents produced by the United States, these are or will be available on the website of our State Department’s Bureau of International Security and Nonproliferation.

Review Cycle Process

Let me now turn to a second issue: the importance of reforming how it is that we all perform our collective business during the NPT review cycle. Before I outline some modest changes that we believe would help things work more equitably and, therefore, sustainably in the future, however, let me first mention some widely discussed ideas that we believe would not be very useful. Specifically, it would not be productive to respond to any dissatisfaction that might exist with the NPT review cycle simply by constructing new institutional layers – for example, through the creation of a permanent body, a permanent Secretariat, or other such mechanisms – which would provide further arenas for substantive discord and procedural squabbling.

Talk of a “procedural deficit” in the review cycle aims, in part, to correct problems that do not really exist. As I have said elsewhere, talk of a “procedural deficit” implies that there is some kind of procedural gap that needs to be filled if the NPT regime is to work better. Yet this is not true, for the problems of the review process stem not from some lack of procedural mechanisms, but from deeper and more significant disagreements about substance: about the basic purposes of the Treaty, about the setting of policy priorities, and about the degree to which States Party must bear individual and collective burdens in order to preserve the integrity of the regime. Building more institutions atop such disagreements would be unhealthy, and merely replicate existing procedural difficulties on a new stage.

We do not need standing bodies or additional mechanisms as much as we need more serious and thoughtful articulation and sharing of views about the substantive issues at the heart of the nonproliferation enterprise. If one cannot use this unique global forum to advance such important policy discussions, what is the purpose of having a review process? Fortunately, Mr. Chairman, to the extent that interest in “institutional” remedies stems from frustration with the polarization of review cycle meetings, perhaps States Party now will conclude that the “process” is not intrinsically dysfunctional. After all, as we all demonstrated at the PrepCom last year – in our collective procedural unity against Iran’s efforts to obstruct substantive debate over the issue of NPT compliance – States Party indeed are capable of standing together in support of the integrity of the review process. Perhaps things are not so “broken” as some seem to have feared.

Moreover, it would be wrong to argue that no “institutions” exist to deal with the issues confronting the NPT regime today. The IAEA is an international organization entrusted with implementing the nuclear safeguards required pursuant to Article III of the Treaty, and it has shown itself able to report noncompliance with these obligations to the Security Council. The Council itself has broad jurisdiction over threats to international peace and security, a category that certainly could include instances of NPT noncompliance, as well as significant violations of safeguards obligations. Article X of the Treaty also guarantees some degree of Security Council involvement, inasmuch as notifications of intent to withdraw from the NPT must be submitted to that body.

Furthermore, as we have seen with the development of the “EU-3 plus Three” process with Iran, and with the Six-Party Talks involving North Korea, the international community clearly is capable of developing broad, yet tailored, diplomatic responses to specific proliferation challenges as they arise. It therefore is hard to see what NPT institutional “gap” really exists that needs to be filled, or that would be better addressed by the establishment of an additional body under specific Treaty auspices.

Naturally, Mr. Chairman, this should not prevent us from considering any procedural modifications that would tend to help the process work more equitably and, therefore, sustainably over time. Last year, for example, our Delegation raised the issue, for the first time, of how it is that we select the officials who run NPT meetings. As you all know, PrepCom chairmanships and Review Conference (RevCon) presidencies traditionally follow a rotation among the political groups, with one group always presiding both over the final (and most important) PrepCom and the RevCon in each review cycle. The United States considers that, in keeping with the principle of mutual respect for the equal sovereignty of States, all States Party should have the opportunity to provide the individual who presides over each RevCon, as well as to provide the individual who occupies the chair at each PrepCom in successive review cycles.

Such an understanding among States Party would acknowledge the dramatic expansion of the nuclear nonproliferation regime over the decades that the Treaty has been in force. It also would expand the pool of available candidates for NPT leadership positions, and provide for a more representative mix of presiding officers. We are open to discussing any approach to this issue that would provide every State Party with an equitable opportunity to provide candidates for all NPT leadership positions.

Finally, Mr. Chairman, let me mention finances. For years, as the financial cost of the NPT regime has grown along with the number of its States Party, NPT meetings uniformly have exceeded their estimated budgets. Unfortunately, the U.N. Secretariat has made clear its expectation that, without some change of course, NPT expenses will continue to rise. It is in the interest of all States Party to address this growing, mutual concern before it begins to undermine the review process.

To begin with, we should work to control conference costs. Measures to accomplish this should include agreement among Parties to reduce the cost of producing records for all future meetings. One way to do this would be for the UN Secretariat to maintain electronic records in lieu of summarizing and publishing them in “hard copy” form in the six official languages. States Party also could also adopt, on their own, administrative practices that would help reduce conference costs, such as voluntary limits on speaking time, and shorter official conference documents and working papers.

Our Delegation also believes that it is past time for States Party to review the NPT Scale of Assessments, under which the costs of all NPT meetings are apportioned. Two Parties – the United States and Japan – bear a combined assessment of nearly fifty percent of the total. No other Party bears a percentage assessment even running into double digits, while one nuclear weapon state – a rising economic power – enjoys an assessment of less than one percent. Moreover, more than 70 countries have assessments of only one tenth of one percent, while nearly 30 have assessments still less than one percent. The existing imbalance in the financial obligations of States Party is evident when individual contributions are compared. Clearly, Mr. Chairman, the current system of assessments is consistent neither with the modern economic capacities of many of the Parties, nor with any plausible differential of benefits received from the NPT regime.

To rectify existing financial imbalances, and thereby ensure the continued financial health of the review process, the United States proposes that this system be reexamined. The NPT is an important component of the broader global nonproliferation regime, and deserves firm and generous support from all States Party. The United States does not propose at this time to reduce our assessment in support of the regime, but fundamental principles of equitable allocation and of mutual respect for the equal sovereignty of States require that all Parties provide financial support to the NPT regime more consistent with their economic capabilities, and in recognition that all States Party derive critical benefits from the Treaty.

Thank you, Mr. Chairman.



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