Free the Fissile Material Cut-off Treaty: Functionality over forum

History repeats itself, the saying goes, first as tragedy and then as farce. This characterization could readily be applied to the international community’s efforts to negotiate a treaty banning the production of fissile material for nuclear weapons. A longstanding objective of the international community, the Fissile Material Cut-off Treaty (FMCT) has, tragically, never been the subject of even preliminary negotiations, as the nuclear powers that allegedly support it avoid taking any effective action on the treaty while, farcically, bemoaning its absence.

The FMCT has been held hostage for years by its assigned guardian: the Conference on Disarmament in Geneva. This 65-nation body — which operates under the auspices of and with funding from the United Nations — is, in principle, the sole multilateral forum for the negotiation of arms control and disarmament agreements. The negotiation of a fissile material production ban has featured on its agenda for decades, and an agreed mandate for those negotiations has existed since 1995.

Unfortunately, the Conference on Disarmament has been moribund since it concluded the Comprehensive Nuclear Test Ban Treaty in 1996. Operating under an extreme version of the consensus rule, no decision, procedural or substantive, can be taken by the conference without the approval of all 65 member states, and Pakistan has consistently blocked negotiations on the Fissile Material Cut-off Treaty. Actually, given the differing perspectives and priorities regarding international security among its members, the disarmament conference has not been able to agree on a functioning work plan to deal with most of the key issues on its agenda. These include not just the FMCT, but the prevention of an arms race in outer space, nuclear disarmament, and negative security assurances (i.e. commitments by nuclear weapon states never to threaten or use nuclear arms against states not possessing these weapons). Although the UN General Assembly and the Nuclear Non-proliferation Treaty members routinely ask the Conference on Disarmament to get on with this work, these requests are in practice ignored by the disarmament conference, mired as it is in a procedural bog of its own making.

Even the direction of the UN Security Council seems to have no effect. Council resolution 1887 — adopted on September 24, 2009, at an unprecedented Security Council summit chaired by President Barack Obama — called on the disarmament conference to negotiate a treaty “as soon as possible.” Evidently there is little cost for ignoring such directives. By exploiting the disarmament conference’s consensus rule, one or two states can effectively stymie the wishes of the vast majority. Although there is considerable public hand-wringing and lamentation over this situation, little discernable action has been taken to remedy it.

The decade-long impasse at the Conference on Disarmament might be written off as just another problematic multilateral process if it were not for the seriousness of the underlying security problems the forum is supposed to resolve. The international community first endorsed a ban on the production of fissile material for the manufacture of nuclear weapons in 1957, and such a ban has been a priority objective of the NPT membership since the indefinite extension of that treaty in 1995. A treaty banning fissile material production has long been recognized as the next logical step in furthering agreed nuclear nonproliferation and disarmament objectives. The vision of a nuclear weapons -free world espoused by President Obama, for example, will remain only a mirage in the absence of a treaty that actually turns off the tap of fissile material production for nuclear arms. All five nuclear weapons states recognized by the nonproliferation treaty — the US, Russian Federation, the UK, France, and China — claim to have ceased such production years ago, and all affirm their support for the negotiation of a treaty. An agreed FMCT would serve to codify this halt in production and act as an influential norm for states outside the NPT that are still engaged in the production of the fissile material that is the essential ingredient of nuclear weapons.

The outlier. Pakistan has chosen to block negotiations on a fissile materials treaty at the disarmament conference as it engages in a costly atomic weapons race with its rival, India. An FMCT would represent a diplomatic alternative to this contest and allow for a verifiable cap to be put on the subcontinent’s fissile material production, with benefits for both regional and global security. Pakistan, however, has decided that Fissile Material Cut-off Treaty is not in its national security interests. Worse, it has consistently blocked the initiation of a negotiation at the disarmament conference, keeping the vast majority of member states from developing a treaty that they have concluded is in their security interests. This stalemate has implications for the efficacy and hence the credibility of the entire multilateral nuclear disarmament enterprise.

Partly at the instigation of the UN Secretary General Ban Ki Moon, who seems personally committed to overcoming this protracted blockage in the multilateral disarmament machinery, several high level meetings were recently convened to consider the problem. As agreed at the 2010 Nuclear Non-proliferation Treaty Review Conference, a high level meeting was held in New York in September 2010 and another in Geneva early this year. In July, the UN General Assembly met to review the situation on “revitalizing the work of the Conference on Disarmament and taking forward multilateral negotiations.” While the foreign ministers and senior officials in attendance at these sessions all lamented the pathetic state of affairs at the disarmament conference, they have all been complicit to some degree — through action or inaction — in its perpetuation. In the economic realm, an institution that failed to produce anything would be rapidly declared bankrupt and terminated. In the diplomatic field, nil results are sometimes tolerated indefinitely.

Once initiated, negotiations on a Fissile Material Cut-off Treaty would exert a powerful influence on the behavior of all states possessing fissile material suitable for nuclear weapons. Such a treaty would not require all concerned states to be involved from the beginning. Even a treaty that initially only bound the five NPT nuclear weapon states would be a major accomplishment, consolidating the norm against further production of fissile material for weapons and delivering on core NPT-related commitments. Such a treaty would inevitably have an impact on the behavior of the non-NPT states that possess nuclear weapons, even if they initially choose to stand aside from it. The history of adherence to the nonproliferation treaty is informative with respect to the significance of a first-stage fissile material treaty. The NPT is now no less important as the cornerstone of the international nuclear nonproliferation regime for the fact that some key states, such as France and China, adhered to it a generation after the treaty came into force.

What now? The first step in demonstrating serious intent toward initiating Fissile Material Cut-off Treaty negotiations is to rescue the treaty from the oubliette of the Conference on Disarmament, where it has languished for so long. Whose interests are being served by continuing to confine action on such a treaty to a forum that, year after year, can’t manage to move off square one? The Russian foreign minister may claim, as he did this spring, that to seek “the ‘easy’ way out by launching ‘parallel’ negotiation processes outside the CD” would degrade the whole multilateral disarmament system. This status-quo stance ignores the degradation of multilateral disarmament ensuing from 15 years of failure to produce any agreement whatsoever.

At the Geneva meeting earlier this year, Secretary of State Hillary Clinton took a more responsible tack in addressing the disarmament conference’s deadlock: “There is no justification for a single nation to abuse the consensus principle and forever thwart the legitimate desire of the 64 other states to get negotiations underway on an agreement that would strengthen our common security.” To be fair, though, Pakistan is not the only culprit in this sordid affair; there is also no justification for states to profess their commitment to a treaty and then take no effective action to bring it about. The Ottawa process resulting in the landmines treaty and the more recent Oslo process that produced a ban on cluster munitions demonstrate that where there is a will there is a way. Ad hoc diplomatic conferences can produce results when consensus-bound multilateral forums fail.

Success in getting FMCT negotiations underway will depend greatly on the willingness of the United States to champion moving them outside the disarmament conference and its chronic paralysis. Regrettably, the messaging from Washington has not been entirely clear or consistent on this key question. On the one hand, administration officials have declared their intent to consider other diplomatic options for a treaty, if the disarmament conference remains gridlocked. In a major address to the Carnegie International Nuclear Policy Conference in March, National Security Advisor Tom Donilon said the United States would pursue alternative forums to get FMCT negotiations underway and would consult with the other permanent members of the Security Council to this end. This July, Under Secretary for Arms Control Ellen Tauscher referred to Pakistan’s blocking of the Conference on Disarmament and declared : “Thus the US is joining with other key countries to start preparations for a Fissile Material Cut-off Treaty elsewhere until the conference can get down to work.” On the other hand, there are conflicting statements suggesting that the United States would not support FMCT negotiations in a forum other than the Conference on Disarmament. These likely reflect opposition by other P5 states to joining with the United States in escaping the disarmament conference’s gridlock. The communiqué issued after the July 1 meeting of permanent Security Council members in Paris contains only the hoary formula of affirming support for “immediate commencement of negotiations at the Conference on Disarmament on a fissile material cut-off treaty …” After 15 years of disarmament conference inaction, reiterating this stale appeal represents an insult to the international community’s intelligence.

Considering the options. It is to be hoped that the Obama administration does not give up its diplomatic efforts to rescue the Fissile Material Cut-off Treaty from oblivion. Other influential states, including the 10 nations belonging to the Non-Proliferation and Disarmament Initiative (NPDI) group led by Australia and Japan, have signalled their resolve to start work on the treaty under the auspices of the UN General Assembly if the disarmament conference fails again this year to start negotiations. While seeing the commencement of FMCT negotiations as the priority, the NPDI states have also promoted the idea of establishing a group of scientific experts to examine technical aspects of such a treaty as a complementary measure. The UN Secretary General has warned that if states continue to follow a status quo approach to the Conference on Disarmament, they will only render that body “irrelevant and obsolete.”

Ban Ki-Moon has flagged the important point: Functionality is more important than forum. If states cannot get work underway at the disarmament conference, they have the option of conducting negotiations “in an ad hoc committee of the General Assembly or a United Nations conference.” I was involved in a 2005 effort to seek General Assembly authorization for establishing ad hoc committees to begin work on the core issues of the disarmament conference, including the FMCT. Although the nuclear-weapon states opposed that initiative at the time and other states pleaded for the CD to be given more time to prove it could surmount its problems, the intervening six years have only served to underscore the necessity of considering other diplomatic options to ensure that negotiations actually get underway.

The United States, with the support of like-minded “Friends of the FMCT,” should play a leadership role in getting this treaty negotiation launched. Although the involvement of all eight states producing fissile material for nuclear weapons would be ideal, a ‘critical mass’ of the five NPT-recognized nuclear weapon states would suffice for now. All concerned states realize that the negotiation itself will be complicated and challenging and that major differences exist over the treatment of stocks of fissile material. Resolving differences is, however, what the process of negotiation is all about. The states involved will find the eventual FMCT negotiations demanding, but that is no excuse to continue to let this hallmark treaty remain the captive of a dysfunctional forum and never see the light of day.