[The clock is ticking, the days are slowly rolling by, and soon our most excellent Congress will vote to approve – or disapprove – the Administration’s agreement with Iran on nuclear weapons. Actually, it’s not just an agreement between us and Iran; others are involved as well, including Russia, China, Great Britain, France and 170+ non-nuclear nations. Essentially these are the same countries that accepted the 1970 Nuclear Nonproliferation Treaty [the NPT]. Only Israel seems to object, but – Did I mention this? – Israel has never really accepted the NPT, either. The Israelis have retained the right to develop, and proliferate, their own nuclear weapons at will, and without regard to world opinion.

That’s fine for Israel; after all, it’s a sovereign nation, and is entitled to pursue its own interests, subject, of course, to international law. But Israel’s foreign policy is also very important to our politicians here at home, especially segments of the Republican Party. Just look at the host of wannabe[1] candidates competing to head the Republican ticket next year. Have any of them ever said anything critical about Israel? I can’t think of a single instance. Indeed, the consensus seems to be that there should be “no daylight” between the U.S. and Israel on foreign policy, and if elected, Republicans will “repair” our relationship with Israel to make sure that’s the case.

What an odd way to make a point! Does it mean that, every time Israel changes its position on something, we have to rush to catch up? Should our State Department ask Israel for advance notice of policy changes, so that there is no embarrassing daylight between us? Will we be allowed to discuss changes before they are made, or should we just follow orders as they are issued? What if we see a “better deal” in an international agreement? Should we follow up on that, or must we first ask Tel Aviv for permission?

Enough already! I’ve always believed that, to understand what’s really going on in the world, sometimes it’s useful to read the relevant treaties and international agreements. Since the issue of the day is Iran, and nuclear weapons, the NPT obviously is relevant and, more to the point, our major media are ignoring it. So that makes it an obvious topic for this blog. We go where the media fear to tread.

Now, I don’t pretend to understand international law or treaties, but luckily we have Larry, our legal consultant, to help out. Ever cautious, he tells me that he doesn’t generally work with nuclear weapons, but he can read, and the basic treaty document is relatively simple; so he’s willing to venture an opinion or two. He’s astonished, he says, that our media don’t do the same. Proceed, Larry!]

Sure. As you said, I’m going to talk about the 1970 Nuclear Nonproliferation Treaty. Reliable copies of it – in English – are available from the U.S. State Department[2] and the United Nations.[3] According to the U.N., the treaty’s purpose is to “prevent the spread of nuclear weapons and weapons technology, to promote co-operation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament.”[4] It’s the only multilateral treaty that binds states with nuclear weapons to pursue nuclear disarmament.

[That’s interesting. Have all states with nuclear weapons signed on to it?]

Who Has Accepted the NPT?

No. North Korea had signed, but dropped out a few years ago.[5] Apparently they have an active nuclear weapons program. Israel never signed up, and, as we’ve indicated before, probably has quite a few nuclear warheads, etc. on hand.

[Any other abstainers?]

Yes, India and Pakistan. Both of them have nuclear weapons, mostly aimed at each other, although India also may be concerned about possible Chinese expansion in its neighborhood.

On the bright side, as of today almost 180 countries abide by the NPT, including the U.S., Russia, China, Great Britain and France, all nuclear powers.[6]

[How about Iran? Is it a party to the NPT?]

Yes, indeed. In a sense, that’s what negotiations with Iran over the last two years were about: Ensuring that Iran complied with its obligations under the NPT.

What Are the Obligations?

Articles I and II define the basic rights and duties of members.

  • Article I says that parties with nuclear weapons are not to (i) transfer, directly or indirectly, such weapons “to any recipient“ or (ii) “in any way … assist, encourage or induce any non-nuclear weapon State” to manufacture or acquire such weapons[7].
  • Article II says that parties without nuclear weapons will not accept (i) such weapons “from any transferor” directly or indirectly, or (ii) “any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”[8]

[So the nuclear powers agree not to transfer their weapons technology to anyone, and the non-nuclear powers agree to reject such technology if it’s offered.]

Yes. This is a nonproliferation treaty. Its aim is to prevent the spread of nuclear weapons around the globe. In 1970 most people thought that was a good idea.

Proliferation by Non-Parties

[So how does the NPT deal with the countries that haven’t signed onto it? Are Israel, North Korea, India and Pakistan free to sell nuclear weapons technology to anyone they want?]

Technically I suppose the answer is “yes.” But the 170+ countries that have adopted the NPT, and don’t have nuclear weapons, aren’t free to accept that kind of help. They’ve agreed not to take nuclear weapons or technology “from any transferor,” which, I think, includes countries that have rejected the NPT. I suppose the four nuclear holdouts can trade weapons secrets amongst themselves, if it’s in their interest to do so; but otherwise the legal market for nuclear weapons technology seems pretty much limited.

[Could Israel help India with its nuclear weapons program, or vice versa?]

Yes, I think so. But if you know anybody with that kind of technology who wants to sell it, you really need to tell them to consult their own lawyers. I’m not an expert in the area, and I’m not advising anybody to do anything, other than to stay away from that kind of business. There are lots of statutes, etc. that apply to nuclear energy. The NPT is only one of them.

And before you ask, “What about the black market, organized crime, terror groups and so forth?” let me say: I don’t know about any of that, either. For those kinds of answers you need to talk to a good intelligence analyst, and the really good ones probably aren’t cleared to tell you the truth. For my part, I’m going to stick to the NPT.

Loopholes?

[Fine. Let’s go back to the treaty. Are there any significant loopholes in it?]

Well, I don’t know if I’d call it a loophole, but one purpose of the treaty is to promote the peaceful uses of nuclear energy. Article IV says:

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.[9]

That’s pretty strong language, don’t you think? Countries that accept the NPT have an “inalienable right” to research, produce and use nuclear energy “for peaceful purposes,” but not for war.[10]So how does one determine whether a particular bit of nuclear technology is made for war, or for peace? Or what if it’s useful for both? I guess you might call that “dual use” technology.

Technology Oversight

I’m a lawyer by trade, not a nuclear scientist, so I’m not going to give opinions about how to draw the line between “peaceful” and “warlike” nuclear technologies. You need to ask experts about that. And, no doubt the drafters of the NPT would approve of my reticence. They also punted the technical issues to the experts i.e. to the International Atomic Energy Agency [the IAEA].

Article III states that any “non-nuclear-weapon” state that accepts the NPT must negotiate an agreement with the IAEA “for the exclusive purpose” of verifying that nuclear energy will not be diverted “from peaceful uses to nuclear weapons or other nuclear explosive devices.”[11] “The safeguards [negotiated] … shall be applied to all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.”[12] No fissionable material or related equipment will be transferred to a non-nuclear state unless approved safeguards are in place.[13]

Conclusion

[OK, Larry, I think I understand the basic framework of the NPT, and how it affected the negotiations with Iran. People ask from time to time why Israel was left out of the loop. The answer, I think, is simple. The discussions were about the NPT, and how Iran might be brought into compliance with it. Israel has rejected that treaty, is pursuing its own nuclear goals regardless of what the NPT might require, and therefore had no place at the negotiation table. I guess lawyers might say Israel has no standing to complain.]

Ah, G, I don’t think anyone has said it quite that baldly. You might have a problem getting even a confidential source at the State Department to agree with you.

[I understand. But my basic point remains the same: If the Israelis want to be treated differently, all they have to do is accept the NPT, submit themselves to inspections like everybody else, and clear the air. Then they could join the rest of the world.]

Good luck on that. You have other points?

[Yes, one other. Obviously it’s no easy task to determine which nuclear technologies are “peaceful,” and which are warlike. I’m sure that was a major sticking point in the cliffhanger negotiations with Iran. But at the end of the day, if we had a strong science team on our side – and we did; and they support the final deal – which they do; then I’m inclined to go with their recommendation. The other choice – accepting the views of some lame politician who repeats talking points from unknown sources – simply isn’t credible.

That said, I guess we’ll close this out. Thanks for all your hard work. Let’s go back to Supreme Court decisions next time.]

[1] Yes, there is such a word as “wannabe.” The Compact Oxford English Dictionary (3rd edition, 2005) defines it as “a person who wants to be like someone famous.”

[2] See U.S. Department of State, Diplomacy in Action, Nuclear Nonproliferation Treaty, available at http://www.state.gov/t/isn/trty/16281.htm Henceforth, this will be cited as “Treaty at ___.”

[3] See United Nations, 2015, Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, available at http://www.un.org/en/conf/npt/2015/pdf/text%20of%20the%20treaty.pdf Henceforth this will be cited as “Treaty at ___.”

[4] See United Nations, 2015 Review Conference of the Parties to the Treaty on Non-Proliferation of Nuclear Weapons (NPT), 27 April to 22 May 2015, available at http://www.un.org/en/conf/npt/2015/index.shtml

[5] See Treaty at Article X, par. 1: “Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.” There’s a question as to whether North Korea followed the correct procedures when it withdrew.

[6] Actually, it’s surprisingly difficult to get an official list. A while back we emailed the U.N. contact on such matters asking for a copy but to date there’s been no reply. The best unofficial list we’ve come up with is, of course, from Wikipedia. You can find it at https://en.wikipedia.org/wiki/List_of_parties_to_the_Treaty_on_the_Non-Proliferation_of_Nuclear_Weapons

[7] See Treaty at Article I.

[8] See Treaty at Article II.

[9] See Treaty at Article IV.1.

[10] And there’s more. See Treaty at Article IV.2: “All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.”

[11] See Treaty at Article III.1.

[12] Id. See also Treaty at Article III.3. “The safeguards required by this article shall be implemented in a manner designed to comply with article IV of this Treaty, and to avoid hampering the economic or technological development of the Parties or international cooperation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes in accordance with the provisions of this article and the principle of safeguarding set forth in the Preamble of the Treaty.”

[13] See Treaty at Article III.2.

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