A tale of two treaties?

The basic aims of the Nuclear Non-Proliferation Treaty (NPT) are fairly straightforward: to prevent the spread of nuclear weapons; to provide assurances, through international safeguards, that peaceful nuclear activities will not lead to the production of nuclear weapons; to promote, to the maximum extent consistent with the treaty's other provisions, the peaceful uses of nuclear energy; and eventually to make progress toward nuclear disarmament.

But enforcement of the treaty's provisions has long been a major challenge — in part because the International Atomic Energy Agency (IAEA), which is empowered to enforce the Safeguards Agreements that it establishes with individual nations, is not empowered to enforce the treaty as a whole. That is, the agency has no executive force. In any case, its role as an international promoter of "Atoms for Peace" is as important as its safeguards function.

Limits on the IAEA's authority, particularly in the field of nuclear security, amount to a set of serious deficiencies in the nonproliferation regime. For example, the agency cannot require states to establish systems for nuclear security. It has no authority to verify that nuclear materials within states are accorded appropriate physical protection. Even guidance on these issues is provided by the agency only on request, and though the IAEA regularly publishes recommendations on these topics, following the recommendations is not mandatory. No nuclear security mandate requires that states adequately protect their nuclear materials.

In fact, the agency lacks the authority to take action or even comment on the measures that states enact regarding physical protection of nuclear materials unless states request that the agency carry out a specific mission to do so. And even if safeguards inspectors were to note inadequacies in nuclear security, they would not have legal authority to report them.

Compliance could be more reliably ensured if the agency's mission were redefined, thus placing it at the center of international efforts toward establishing nuclear security. Under such a scenario, the agency would develop comprehensive nuclear security standards, perform mandatory threat assessments in signatory countries, and carry out follow-up missions that would likewise be mandatory. As part of this process, an international agreement on nuclear security standards would need to be established, as would agreement on the means by which compliance could be ensured.

In the meantime, some progress is being achieved through a series of summits. In 2010, US President Barack Obama convened 47 world leaders in Washington, DC, for the first Nuclear Security Summit, which highlighted the enduring need for vigilance among committed governments. Still, the nature of the proliferation threat has evolved dramatically in recent years. The threat of non-state actors' obtaining nuclear weapons has seemed more pressing since 9/11, and existing and new nuclear power plants seem more vulnerable than ever. Increasingly, countries — most notably those represented by the Non-Aligned Movement — have expressed resentment of the restricted access to nuclear technology set by the Nuclear Suppliers Group, which establishes the rules for international nuclear commerce; with more conditions placed on nuclear commerce comes the possibility of the proliferation of nuclear weapons expertise.

Thus, a second summit was held in March in South Korea, which was attended by over 50 world leaders. That summit, conducted in the aftermath of the accident at the Fukushima Daiichi Nuclear Power Station, concluded with a communiqué that addressed the security of radioactive materials, which can be used to fashion radiological dispersal devices, as well as the interface between nuclear safety and security.

The high profile of the summits has put nuclear security, and by extension the NPT regime, closer to the top of the world agenda. Perhaps progress can now be made toward enacting much-needed provisions for better enforcement of the treaty, especially considering that a third summit is scheduled for 2014 in the Netherlands. A step in the right direction would be the entry into force of the amended Convention on the Physical Protection of Nuclear Materials; this 2005 amendment was drafted to criminalize nuclear theft and smuggling, and it includes important provisions regarding storage, transport, and protection of nuclear materials, as well as protection of facilities.

In addition, special efforts toward nonproliferation ought to be targeted toward the developing world. A number of developing countries, including some in Africa, have proven to be hotbeds for terrorist recruitment, and the inability of African governments to police their borders effectively has raised concerns over illicit trafficking of nuclear materials. To address these problems, the international community should assist African governments in implementing developmental programs that might redress the endless cycle of poverty and hopelessness that characterizes much of the continent. By marrying solutions to these endemic challenges with new streams of nonproliferation assistance, the world could help curtail the risk of trafficking in nuclear materials — thus curbing proliferation through development.

Though the Nuclear Non-Proliferation Treaty (NPT) was never designed to be discriminatory, it has now, more or less permanently, divided countries into different classes — the five recognized nuclear weapon states, the 184 states without nuclear weapons, and the four nations that stand outside the treaty. The basic bargain of the NPT is that the non-nuclear weapon states pledge not to acquire nuclear weapons, while the nuclear weapon states agree to share their peaceful nuclear technology and also, crucially, to pursue disarmament. But progress toward disarmament has been very slow.

The nuclear weapon states care a great deal about potential proliferation but not enough about the steps that are necessary to achieve disarmament. If these states wish to enhance the nonproliferation regime, they should achieve additional reductions of nuclear weapons and also reduce the importance of nuclear weapons in their foreign policy. Additionally, the two nuclear weapon states that have not ratified the Comprehensive Nuclear Test Ban Treaty — the United States and China — should quickly do so.

Meanwhile, the International Atomic Energy Agency's (IAEA) safeguards regime, which began as a simple collection of statutes in 1970, has evolved into a rather sophisticated verification system under the NPT. Advanced inspection and monitoring techniques have been introduced over the years through safeguards agreements and the Additional Protocol. These include on-site inspections, area-wide environmental monitoring, and special inspections.

Further, the United States under President George W. Bush proposed that the Nuclear Suppliers Group exclude from peaceful nuclear trade those nations that lack the technology to enrich uranium and reprocess spent fuel, unless they promise never to acquire such technology. This would represent a revision of the treaty's central bargain: nonproliferation in exchange for progress toward disarmament and the sharing of peaceful nuclear technology. That is, it would change the rules of the game. But non-nuclear weapon states increasingly regard the treaty as allowing them to develop capabilities in uranium enrichment and spent fuel reprocessing for peaceful purposes (even though under certain conditions those capabilities could be applied toward developing nuclear weapons). Indeed, non-nuclear weapons states generally believe that under the treaty they have an "inalienable right" to carry out these activities, subject to the safeguards of the IAEA.

In the zones. Meanwhile, nuclear-weapon-free zones can contribute a great deal toward the disarmament project, and the time has come to shift more focus toward them. Five such zones exist today — Latin America (1967 Treaty of Tlatelolco), the South Pacific (1985 Treaty of Rarotonga), Southeast Asia (1995 Treaty of Bangkok), Africa (1996 Treaty of Pelindaba), and Central Asia (2006 Treaty of Semipalatinsk). Within these zones the development of peaceful nuclear energy programs is accepted but the possession, acquisition, testing, and manufacture of nuclear weapons is prohibited under legally binding nuclear-weapon-free zone treaties and protocols. Nuclear weapon states pledge through separate protocols not to use or threaten to use nuclear weapons within the zones.

In view of the severe tensions threatening peace and security in the Middle East, concerted global and regional efforts should be made to establish a nuclear-weapon-free zone in the region, composed of the members of the Arab League plus Iran and Israel. The Middle East is one of the most dangerous regions in the world, and was described as a "region of tension" by the 1995 NPT Review and Extension Conference. This is the natural consequence of a heated conventional arms race in the region, fueled in part by Israel's presumed stockpile of nuclear weapons.

But it is also the consequence of a lack of political will, outside Arab countries, to establish a nuclear-weapon-free zone or a zone free of weapons of mass destruction. The very cornerstone of establishing such a zone is the political commitment of the non-Arab parties in the region to enter into the undertaking. Such a zone has indeed received global attention thanks in large part to the 2010 NPT Review Conference's recommendation that official discussions begin — in fact, they are tentatively set for December of this year in Helsinki. But without greater international commitment to the project, this essential step in building a new Middle East cannot be achieved.

Following protocol. The time has also come to ban, through a protocol to the NPT such as those that accompany nuclear-weapon-free zone treaties, the use or threat of use of nuclear weapons against non-nuclear weapon states that are parties to the NPT. For the nuclear weapon states to establish a legally binding commitment not to use nuclear weapons against states without nuclear weapons would constitute an essential step toward realizing the NPT bargain.

It should not be overlooked that the number of nuclear-armed states is on the rise. India and Pakistan have become de facto nuclear weapon states and refuse to become parties to the NPT; North Korea has become a de facto nuclear weapon state after withdrawing from the treaty; and Israel, the only country in the Middle East that is not a party to the treaty, is universally believed to possess nuclear weapons, though it maintains a policy of nuclear opacity. Preventing further cases of proliferation is difficult. Ultimately, the treaty regime can survive only if the NPT is adhered to and supported by all its members — both nuclear weapon states and non-nuclear weapon states — and Israel, India, Pakistan, and North Korea are brought into the regime as non-nuclear weapon states. Realizing universality for the treaty is a crucial project.

This Roundtable asks how signatories to the Nuclear Non-Proliferation Treaty (NPT) can ensure that the treaty's provisions are fairly enforced. But because the treaty is characterized by an imbalance between the rights and obligations of signatories — dividing them as it does into "haves" and "have-nots" — the concept of fairness in the treaty's implementation frankly seems a bit surreal. In addition, "enforcement" is a strong word, as it carries connotations of force (indeed, as represented most dramatically in the US-led attack on Iraq in 2003, counterproliferation as opposed to nonproliferation is already the preferred option for the United States and the European Union). Perhaps "implementation" would be a better choice for this Roundtable question.

The treaty has been the centerpiece of the global nonproliferation regime for over four decades. But its record is mixed. To a large extent the treaty has fulfilled the objective expressed in its name, that of preventing nuclear weapons proliferation. In the 1960s, some analysts predicted that 25 to 30 nuclear weapon states would exist within decades, but in fact only nine states have nuclear weapons today.

Nonetheless, the treaty has always suffered from inadequate institutional support structures. The NPT's oversight functions are carried out through the safeguards regime of the International Atomic Energy Agency (IAEA), supplemented by export control regimes — but the only action at the agency's disposal in cases of noncompliance is referral to the UN Security Council.

Moreover, the treaty's credibility has been eroded at times over recent decades, for instance by Iraq, Libya, and Syria's surreptitious pursuit of nuclear weapons. Ongoing concerns about Iran's nuclear ambitions have also challenged the treaty's credibility. But so, too, have certain actions on the part of the recognized nuclear weapon states. The United States deploys battlefield and theater nuclear weapons in Germany and other NATO countries, and Russia has leased a nuclear-powered submarine to India. These actions violate at least the spirit of the treaty.

Meanwhile, many nations maintain grievances about the NPT, whether or not they possess nuclear weapons. Non-nuclear weapon states surrendered their right to develop nuclear weapons when they joined the treaty; in return, their inalienable right to utilize peaceful nuclear technology was recognized, and they were promised assistance from nuclear powers in acquiring such technology. Nuclear weapon states, for their part, promised to enter into good-faith negotiations toward eventual nuclear disarmament. But non-nuclear weapon states complain at times that nuclear weapon states have neither provided adequate access to peaceful nuclear technology nor made sufficient progress toward disarmament. Nuclear weapon states, on the other hand, remain wary of potential misuse of peaceful nuclear technology by some non-nuclear weapon states.

To address the grievances of both types of states, an international consortium could be created under the IAEA that would assure countries a guaranteed supply of technology and fuel in return for two things: first, their arranging to return spent fuel and, second, their acceding to the Additional Protocol to the NPT Safeguards Agreement — which was drafted to enhance the IAEA's inspection regime after the extent of Iraq's nuclear-weapons activities was discovered following the 1991 Gulf War. (Many countries have not signed the protocol, or have failed to ratify it.) Under any such consortium, however, access to nuclear technology and fuel would have to be strictly criteria-based, and not subject to individual countries' political preferences.

Additionally, the IAEA's financial and human resources would have to be enhanced substantially. Enhancing these resources would in turn demand that member states share burdens equitably, so that major powers could not exert overbearing influence due to their larger financial contributions.

Another long-standing problem for the NPT has been that of three holdout states — India, Israel, and Pakistan, all of which have acquired nuclear weapons. (North Korea, the only country ever to join the nonproliferation regime and then leave it, has also acquired a nuclear capability). Under the treaty as it stands, the holdouts can join only as non-nuclear weapon states, which India and Pakistan find unacceptable. An amendment to the treaty might resolve this problem, but the amendment procedure is tedious and many fear that opening the NPT to amendment would be to open a Pandora's box. Therefore, the problem appears to many an intractable one.

However, without tinkering with the treaty unduly, it might be possible to formulate an additional protocol whereby the three outliers would take on the obligations accepted by other nuclear weapon states in return for acceptance of their status as nuclear weapon states. Eventually, the successful establishment of a Middle East nuclear-weapon-free zone would resolve both the Israeli and Iranian problems. The North Korean problem might be resolved in the future through the six-party process, or through a bilateral agreement between North Korea and the United States. At that point, the treaty would have achieved universality.

Now and later. These goals are ambitious and will not be achieved right away. In the meantime, the IAEA in collaboration with nuclear supplier states could take several steps that might enhance the global nonproliferation regime. One step would be the establishment of "nuclear power parks," an arrangement whereby a supplier or international consortium would build and operate nuclear power plants in space provided by host countries; the supplier or consortium would provide its own fuel and remove it once it was spent, without the involvement of local manpower. Another idea worth exploring might be ship-based power plants that would anchor in harbors and connect to local power grids. The agency could also commission studies aimed at developing proliferation-resistant nuclear technologies that could reduce the possibility of diversion and cheating. For this, the agency could utilize its own pool of experts, and advanced countries could be used to research  these systems. Meanwhile, the five recognized nuclear weapon states should demonstrate more urgency regarding the provision of negative security assurances to non-nuclear weapon states, alleviating their security concerns and reducing their incentives to seek nuclear weapons. (Negative security assurances are already on the agenda of the Conference on Disarmament but have not yet been taken up for serious discussion).

Negotiations toward a convention that outlaws nuclear weapons should get under way as well. Such negotiations would stretch over many years; in the meantime, the steps outlined above might enhance the nonproliferation regime and eventually make it universal. This would help provide assurances to all.