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Cornell International Law Journal Online

Nuclear Proliferation Resistant Means: Analysing NPT, Vol. 56.2

Debalina Ghoshal

29 Dec 2023

Nuclear proliferation is a serious global security threat as it results in states that otherwise would have no or little means of pursuing a nuclear program to pursue the same. Today, as nuclear weapons technologies and know-how are readily available from states across the globe, pursuing a nuclear program has become relatively easier. 

 Legal mechanisms like the Nuclear Proliferation Treaty (NPT) can prevent states from developing nuclear weapons. However, these legal mechanisms are not completely foolproof and despite being a party to the NPT, states can indulge in nuclear proliferation activities. States can also discontinue being a party to these legal mechanisms, like North Korea, which disengaged from the NPT. In addition, the NPT does not apply to non-state actors and is a serious concern as these non-state actors form a medium to pursue foreign policy and geopolitical and geo-strategic objectives for many state actors. 

Amid these concerns, this article aims to understand to what extent the NPT can become a productive legal mechanism to prevent proliferation and to analyse its successes and failures.

Proliferation Resistant Legal Regimes and State Actors

The NPT is a “landmark international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament.

However, while states are meant to be rational actors and behave in a certain responsible manner, it is a state’s ‘security dilemma’ and foreign policies that would decide whether the state wishes to follow legal mechanisms to prevent nuclear proliferation. Nuclear weapons are believed by states to be ‘weapons of peace’ and a currency of power, status, and deterrence. States willing to take risks of nuclear fall-out would pursue such programs either by pursuing an indigenous nuclear program or with the help of proliferation. Even indigenous nuclear programs may require nuclear-related materials and technology that may need to be proliferated. States thus indulge in both horizontal and vertical proliferation. The NPT can only achieve success as long as states’ ‘security dilemma’ will not overpower their ability to remain unperturbed by the military capabilities of adversaries and neighbours. 

For instance, North Korea in 1993, following its suspended talks with the United States, withdrew from the NPT under Article X of the Treaty that gave parties the right to withdraw from the Treaty under “extraordinary events related to the subject matter of this [t]reaty, have jeopardised the supreme interests of its country.”

 North Korea tested nuclear weapons and nuclear-capable ballistic missiles of short and long ranges as a deterrent against South Korea, Japan, and the United States. North Korea’s concern has probably been with the United State’s extended nuclear deterrence in Japan and South Korea – in addition to the United States’ nuclear weapons itself that could threaten North Korea’s existence. North Korea hence finds it easier to follow recalcitrant behaviour due to the fact that they possessed nuclear weapons and delivery systems. Thus, the NPT could not gain success in the case of North Korea. However, it must be noted that North Korea has been a ‘rogue’ state and rogue states may not follow a rational process of existence in the international system. 

Unlike North Korea, in 1994 Ukraine acceded to the NPT as a non-nuclear weapon state despite having inherited nuclear weapons and delivery systems from the erstwhile Soviet Union after its disintegration in 1991. This accession to the NPT was made possible owing to the Ukrainian army’s own decision to break ties with the Soviet Union and renounce nuclear weapons, becoming a non-allied non-nuclear weapon state in 1991. Ukraine’s Ministry of Foreign Affairs (MFA) also realised that non-accession to the NPT would only aggravate Ukraine’s scope of pursuing a nuclear energy program while accession to the Treaty would provide the state with the legal right to pursue one. A state possessing Soviet nuclear warheads for years, Ukraine found it conducive to provide the IAEA access to its nuclear facilities, thus avoiding any suspicion. Most importantly, Ukraine’s independence was respected by the United States.

Iran on the other hand, has maintained its membership to the NPT and claims its rights to pursue peaceful use of nuclear technology under Article IV of the NPT.  However, despite being a party to the NPT, the international community, especially the United States Germany, France, and Britain-the European Three, or E3- raised issues on Iran’s nuclear program in the early 2000s, claiming the program could have a ‘possible military dimension.’ For years, Iran was sanctioned by the United Nations Security Council (UNSC) as it refused to give up its nuclear program which it believed was meant for peaceful purposes.

The Joint Comprehensive Plan of Action (JCPoA), which was coined as a historic deal between the E3+ Russia, China, and the United States on one side and Iran on the other, allowed Iran to pursue a nuclear energy program by restricting its enrichment capacity and provision of sending spent fuel during plutonium reprocessing to the country from where the nuclear reactor has been availed. However, during the Trump administration, the nuclear deal was called off and the United States imposed back the sanctions that were lifted off of Iran. While critics may point out that Iran could resort to nuclear weapons in the near future, the success of the NPT was clearly visible as Iran refrained from withdrawing itself from the Treaty, unlike North Korea. 

Another success of the NPT is to keep some non-signatory states under a disciplined mechanism of a legal framework. Nuclear power states like India have never been a signatory to the NPT, or tested nuclear weapons, but have been responsible enough not to indulge in nuclear proliferation. India also adopted a ‘no-first use’ doctrine for its nuclear weapons, and ratified the Additional Protocol (AP) of the International Atomic Energy Agency (IAEA) in 2014. 

Both the nuclear powers in the South Asian periphery, India and Pakistan did not sign the NPT but unlike India, Pakistan engaged in nuclear proliferation activities to countries like Iran. Both India and Pakistan claimed the NPT to be discriminatory towards non-permanent nuclear powers and that the treaty promoted ‘nuclear apartheid.’ Israel too is not a party to the NPT and also possesses nuclear bombs in basement, according to reports. This means nuclear weapons are not in a ready deterrent position but can be ready in a short span of time during a crisis situation. Again, while Israel acknowledges the AP, it abides by only those rules of the AP that it feels falls under customary law

On the other hand, Egypt, Israel’s adversary in the Middle East and North Africa (MENA) region, has signed and ratified the NPT. But despite this, Egypt does not acknowledge the relevance of the AP and claimed they would not accept the AP unless Israel signs the NPT. In fact, Egypt ratified the NPT much later after signing, citing Israel’s nuclear weapons program as a threat. Egypt’s dissatisfaction over the NPT was also due to the failure of the Treaty to ensure the success of the 1995 resolution for a nuclear weapons-free Middle East.

Similarly, Brazil was a party to the NPT, but received criticisms for its lackadaisical interest in AP. Brazil attaches its non-adherence to the AP on the grounds of lack of any progress on nuclear disarmament by nuclear weapons states (NWS) – Britain, China, France, Russia and the United States.  Achieving nuclear disarmament is one of the objectives of the NPT under Article VI of the Treaty. In fact, Article VI which promotes nuclear disarmament has been used by states to their advantage to pursue nuclear energy programs for even military purposes – in Brazil’s case, the use of Pressurised Water Reactors (PWRs) for its nuclear submarine program. Moreover, nuclear submarines form an integral component of Brazil’s National Defence Strategy, and Brazil could be concerned that signing the AP can subject it to verification regimes that would interfere with its submarine program.

Another South American state, Argentina, pursued nuclear programs from the 1960s – 1990s and has refused to join the NPT. Though Argentina failed to join the NPT, it was the NPT provisions and legal norms that made it possible for both Brazil and Argentina to establish the bilateral inspection agency (ABACC) and sign the quadripartite agreement with the IAEA. In 1994, Argentina acceded to the NPT as a non-nuclear weapon state. Though Argentina has not signed the AP, the quadripartite agreement is considered to be equivalent to the AP. 

Again, countries like Jordan, in order to avoid the complex verification mechanisms attached with large-scale nuclear programs and distinguish themselves from the same, have not only signed the NPT but have signed the Small Quantities Protocol (SQP) under the Comprehensive Safeguards’ Agreement (CSA). Under the SQP, states would need to undergo a minimal verification process that would be time saving and conducive. However, it must be noted that Jordan is yet to adopt the modified SQP. The modified SQP “opted to retain the SQP as part of the IAEA’s safeguards system, but to subject it to certain modifications that would require states to submit initial reports on nuclear material, inform the Agency immediately of any decision to build a nuclear installation and allow for IAEA inspections. The Board also decided that SQPs would no longer be available to states with a planned or existing nuclear facility.”

Hence, the NPT solely may not be able to guarantee nuclear safety and security, and other legal mechanisms like the AP and SQP complement the NPT in strengthening nuclear security and safety. It is important to understand the AP and SQP in the context of the NPT even as the formers are for nuclear safety measures, because countries like Jordan have nuclear cooperation with Russia and China.  However, the IAEA can only exercise the AP when states have completely ratified the AP. For example, the AP was only applicable to India when India ratified it in 2014, while Iran on the other hand, had not ratified the AP, and hence, access to Iran’s nuclear program is restricted. 

Being a party to the NPT does not always guarantee a state’s nuclear energy cooperation. A state may have to fulfil the obligations of another state it wants to enter into a nuclear cooperation with. For instance, the United States enters into nuclear energy cooperation with states when they fulfil the ‘     gold standard’ obligation – that is, states will not be allowed to enrich uranium or reprocess spent fuel. States like Saudi Arabia being a party to the NPT have not accepted becoming a part of the Gold Standard while the United Arab Emirates (UAE) has accepted it. Saudi Arabia’s stance on the ‘gold standard’ is because it did not wish to accede to the AP. Saudi Arabia currently has its nuclear program placed under the scrutiny of the SQP. Hence, despite the NPT being complimentary to AP, states could choose to forego the AP as seen in the case of Saudi Arabia, or choose to comply with the AP and forego, the NPT, as seen in the case of India. 

Conclusion

The NPT has two very crucial tasks – prevent nuclear proliferation and ensure that states party to the NPT can pursue peaceful nuclear programs. However, the NPT’s legal mechanism cannot achieve this without states complying with complementary agreements like the CSA, AP and SQP. However, it is also the responsibility of nuclear weapon states to provide NPT signatories security assurances that motivate them to stick to such treaties, as seen in the case of Ukraine.

Debalina Ghoshal is a non-resident fellow with the Council on International Policy.