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Disarmament Diplomacy

Issue No. 13, February - March 1997

Launching an Effective Review Process of the NPT in April 1997
by Rebecca Johnson

Introduction

In May 1995 174 parties to the Nuclear Non-Proliferation Treaty (NPT) adopted three decisions without a vote. This 'politically binding package', as described by the President of the NPT Review and Extension Conference, Jayantha Dhanapala, comprised Strengthening the Review Process for the Treaty (Decision 1), Principles and Objectives (P&O) for Nuclear Non-Proliferation and Disarmament (Decision 2), and Extension of the Treaty on the Non-Proliferation of Nuclear Weapons (Decision 3). A fourth resolution, on the Middle East, was adopted at the same time, also without a vote.

Taken together, the first three decisions provided for the indefinite extension of the NPT, but with an enhanced review process intended to ensure greater accountability and a stronger mechanism for full implementation of the Treaty in all its aspects. The enhanced review process entails at least three (and possibly four) Preparatory Committee (PrepCom) meetings to be held between the five yearly Review Conferences. According to Decision 1, the purpose of the PrepComs would be 'to consider principles, objectives and ways' of promoting full implementation. The PrepComs are empowered to make recommendations to the next Review Conference and possibly other bodies and to establish subsidiary bodies for specific issues relevant to the Treaty. Most importantly, the review process was intended to deal with issues of substance related to the NPT and to look 'forward as well as back'. Its job was not only to evaluate implementation but to 'identify the areas in which, and the means through which, further progress should be sought in the future.'

The 1995 decisions sketched out the broad framework for the enhanced review process but did not determine how exactly it should work. This has become the subject of discussions within and among governments, diplomats and non-governmental analysts, in Kiev, Kyoto, Geneva, New York and places in between. With the first review PrepCom under the new process due to take place in New York from 7-18 April, 1997, much is still up for grabs.

Unless real consideration is given to how to fulfil the objectives of the majority of NPT parties who agreed to the enhanced review process in May 1995, the process is likely to be overtaken by inertia, and familiar patterns of approach will ensure that nothing much is allowed to change. The strength of the global non-proliferation regime rests on its authority, credibility and widespread consent. Even as they acknowledge that the NPT is the cornerstone of non-proliferation, States Parties clearly wanted more done about the treaty's deep flaws and contradictions.

Of grave importance is the apparent view of some of the nuclear-weapon States that the treaty has enshrined their right to possess and keep nuclear weapons. The NPT enshrines nothing of the sort, as emphasised once more by the advisory opinion of the International Court of Justice in July 1996. The treaty identified five States that possessed nuclear weapons as of 1 January, 1967. That may be said to have recognised their possession but did not legitimise it. The treaty set up different - but no less binding - obligations on the five declared nuclear-weapon States, including article VI, which calls for cessation of the nuclear arms race, nuclear disarmament and general and complete disarmament. In addition to demanding that nuclear disarmament be more effectively pursued than in the first 25 years of the treaty, NPT parties in 1995 emphasised universality, safety, the need for stronger safeguards, and problems at the interface between civil and military uses and ambitions with respect to nuclear materials and power.

This article gives my own evolving view for how the foundations might be laid. The aim is to contribute to and stimulate debate in order to help establish the most effective process for addressing substantive issues and ensuring effective implementation and a fully functioning non-proliferation regime. The development of ideas is a fluid process and it is not always possible to identify where a useful approach originated. However I would particularly like to thank a number of diplomats in Geneva (who know who they are) and the following people with whom I have enjoyed stimulating discussions that have furthered my thinking in this area: Jonathan Dean, Jozef Goldblat, Tariq Rauf, Sharon Riggle, Ben Sanders and John Simpson.

The 1997 PrepCom

Despite indications in November 1996 that the Western Group's nominee for chair of the 1997 PrepCom, Pasi Patokallio of Finland, was acceptable to members of all groups, a recent challenge has emerged. Delegations from the Non-Aligned Movement (NAM), meeting in New York in January, have put in a bid to chair the 1997 PrepCom, as well as the 1999 PrepCom, a fourth PrepCom if one is held, and the Review Conference in the year 2000. While there is support for the argument that the number of countries in the NAM warrants more generous allocation of Chairs (over 100 NAM members, compared with about 25 in the Western group and 20 in the virtually moribund Group of former Eastern bloc countries), there is considerable frustration among many disarmament delegations in Geneva - not least among the G-21 group of non-aligned States - that this procedural challenge is dangerously late and will play into the hands of those who want to prevent the enhanced review process from effectively addressing issues of substance.

It is understood that the Western group has already signalled that it is not pushing to chair the 2000 Review. The Eastern European group would also have to agree not to press for their candidates to chair these meetings, which might be more difficult as nominating posts seems to be the only remaining raison d'être for the group. Nevertheless, this procedural question must be clarified without delay, with both the Western and Eastern groups accepting the principle that because the NAM is more numerous, its candidates should chair the 2000 Review Conference, third and (if held) fourth PrepComs.

The NAM should then drop their challenge and allow Patokallio to go forwards as Chair of the first PrepCom. The sooner this happens the better, as much preparation still needs to be undertaken prior to 7 April. If the procedural challenge continues into the first week of the PrepCom, it would divert all attention away from developing the approaches, rules and precedents on which the new review process will depend. Tying the 1997 PrepCom up in procedural knots will benefit no-one but those who want a weakened non-proliferation regime or business as usual.

Agreeing to Patokallio's nomination as chair of the 1997 PrepCom does not necessarily mean accepting his view of how the PrepCom should run! The emerging draft structure is for a PrepCom rather like a shortened Review Conference. At the very beginning basic procedural decisions would be taken, including adoption of rules of procedure, documentation etc. Some time is intended for general debate, with national statements from any parties. To comply with the view that at least 51 percent of time should be devoted to substance, the PrepCom would then debate clusters of issues, divided roughly along the lines of the three main committees: disarmament, safeguards and peaceful uses.

These clusters would correspond to the relevant articles of the treaty and agenda items of past Review Conferences, to which related sections of the 1995 Principles and Objectives would be added. There is also a fourth cluster of issues in the P&O, such as universality, which don't correspond directly with treaty articles, but have become very important for States Parties. Rather than hold parallel committees (which are deemed difficult for smaller delegations), the idea is for issues to be addressed in turn in formal or informal plenaries, presided over by the PrepCom Chair. There is considerable debate over what kind of report should emerge from the PrepComs, with a growing preference for a Chair's report, summarising the major debates.

Before there is a rush to adopt what might appear to be a pragmatic way forward, much more thought should be given to the type of outcome desired from the PrepCom debates on substance. In order to address substance coherently and effectively in the review process as a whole, it is necessary to determine what States Parties aim to achieve. Deciding on how substance will be addressed is as important as determining what the priorities for discussion should be. This is vital in order to avoid the PrepComs turning into an impotent talk shop.

What should the PrepComs do?

In the early discussions, two kinds of approach began to emerge:

i) the PrepCom as a 'mini review conference';

ii) the PrepCom as preparation for the quinquennial review conferences, but with more emphasis on substance than in the past.

Each approach has implications for the procedures adopted, the way in which substance would be likely to be addressed, and the type of outcome and report that would be sought. If the PrepCom is viewed as a mini review conference, it might take the following form: general debate (statements by governments); division into three main committees for debate, including development of committee reports; adoption of a final report, with recommendations to go either to the next PrepCom or to the following Review Conference where they could be acted on. While this would enable there to be discussions of issues, adopting the format of a Review Conference may have significant drawbacks.

Alternatively, some government representatives have taken the view that the PrepComs should focus more on preparing information and allocating tasks so as to feed into the Review Conference, where decisions could be taken in accordance with past procedure. They acknowledge that the PrepComs are to address substance, but they argue for procedures based on past practice, as in: 'if it ain't broke, don't fix it.' Such an approach could uncharitably be characterised as 'business as usual, with a bit more talk about substance.'

In my view, it is clear from the negotiating record and the language of the three decisions in the politically binding package that the enhanced review was not intended to be business as usual. Modelling the PrepComs as mini review conferences may also not be the best use of the time and opportunities either. While few would want to throw away the rules of procedure and reinvent the wheel, some time ought to be spent on analysing the aims of the enhanced review process and what the NPT parties want the PrepComs to achieve (and produce). I would argue that some procedures associated with past practice need not be reproduced for the PrepComs. It may be both desirable and necessary to devote time at the first PrepCom to deciding what procedures would best serve the intentions of States Parties when they insisted in 1995 that indefinite extension was to be accompanied by greater accountability.

General Debate: Identifying Priorities

Under the new review process, the PrepComs have been allocated 10 working days. Since national statements can be made in the Conference on Disarmament (by observers as well as the 60 participating members) and the United Nations in the General Assembly, First Committee and Disarmament Commission, I would argue against allocating time for general statements of national positions in the PrepComs.

It would perhaps be useful to have a day's general debate on the major issues, with arguments from coordinators of particular groups highlighting their concerns, the issues they wish to prioritise, and what they want this particular PrepCom to achieve. I am not saying that only common positions from the traditional three groupings of the NAM, Group of Western States and Others and Group of Eastern European States are valid, as there are significant divisions in these groups over approach and substance. But if there is agreement on specific issues or non-proliferation concerns among the members of alliances such as NATO, the European Union (EU), nuclear-weapon-free zones, the Alliance of Small Island States (AOSIS) - or if some or all of the nuclear-weapon States wish to make a collective statement - the general debate should provide an opportunity for setting out the different views of priorities and objectives.

Similarly, if a certain number of NAM States or European countries or similar grouping wished to put forward their common point of view, even if it did not have the full agreement of their bloc, it would be appropriate to do so in the general debate, with a 'dissenting view' able to be offered by others from the bloc or grouping. A general debate along these lines would help to define the issues of greatest importance to the NPT members at each PrepCom without taking up too much time with the kind of repetitive litany of position, virtue, cliché and criticism that usually characterises a general debate based on national statements.

Substance and Main Committees

The Treaty itself remains at the centre of the review process, as was emphasised in paragraph 1 on Decision 1 on Strengthening the Review Process. What, then, is the role of the Principles and Objectives adopted in 1995? Are they merely an expression of priorities in 1995 or one time-dependent interpretation of the NPT's obligations and implications? Is it appropriate to renegotiate or update the P&O or does this become a form of 'rewriting' the Treaty? How does consideration of the P&O fit into a structure adapted for reviewing the Treaty?

In paragraph 5 of Decision 1 on strengthening the review process, the 1995 NPT Conference concluded that the present structure of the three main committees be retained, with further consideration of issues which overlap. However, some have interpreted this as requiring the main committee structure only for Review Conferences and not for the PrepComs. Arguing that parallel committees would stretch resources for the Secretariat and smaller delegations too far, there is already a move to hold all PrepCom sessions in plenary and not as main committees. While allowing, perhaps, for more representative participation, this decision would greatly diminish the amount of discussion and work that could be covered in each PrepCom.

If all work were to be conducted in plenary, I would have to argue for the general debate to be dispensed with altogether, and replaced by statements addressing the relevant agenda items, as they come up. While recognising the real problems of participation in numerous parallel sessions, I think the question of main committees during the PrepCom should not be closed off entirely. A flexible approach might allow two meetings to be held in parallel at times, even if more would be impractical.

Other publications have already addressed how the articles and preambular paragraphs of the Treaty and the corresponding paragraphs in the 1995 Principles and Objectives decision might be divided among the three main committees (1). Rather than duplicate this work I wish to address a different question regarding how substance is categorised. In addition to determining which issues should be addressed in which committees of the PrepCom and Review Conferences, it is necessary to consider what kind of outcome is desired for specific issues. Depending on the desired outcome - a treaty, agreed recommendations or identification of concerns in a report, for example - some issues will lend themselves to different treatment in the PrepComs, which in turn may necessitate a different procedural approach.

Three Categories of Substance

In practice, there are three distinct categories of issues relevant to implementing the NPT: goal oriented (requiring concrete action); non goal oriented (requiring further discussion, clarification and the possibility of future recommendations); and issues related to more effective monitoring of implementation.

Category 1: Goal oriented substance

This category includes the concrete objectives covered in the programme of action on nuclear disarmament (paragraphs 3 and 4 of the P&O), which called for completion of a comprehensive nuclear test ban treaty (CTBT) no later than 1996, for commencement of negotiations in the Conference on Disarmament (CD) on a fissile materials production ban (fissban), and for 'the determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goal of eliminating those weapons...' The 'further steps' on security assurances which paragraph 8 of the P&O stated 'could take the form of an internationally legally binding instrument' may also be an example of goal oriented substance. In effect, category 1 includes issues where a significant number of States have called for concrete action in the form of a specific measure such as a treaty or other form of binding agreement or instrument.

The P&O have already indicated one approach for such issues, by including some of them in a programme of action, which also set a target date for its first item, the CTBT. Peter Goosen, one of the South African architects of the enhanced review process, has emphasised that the P&O were intended to be flexible and capable of being updated. Others argue that amending or updating the P&O could be dangerous. Some appear afraid that the P&O will become the subject of review evaluations or negotiations in their own right, thereby taking on a role that should be accorded only to the Treaty itself.

Some seem to want to keep the P&O under glass as a kind of inviolable addendum to the Treaty and the indefinite extension decision of 1995. Too rigid an approach would quickly turn the Principles and Objectives into nothing more than a historically interesting snapshot of what were deemed to be the priority issues in 1995. This was surely not the intention of those who agreed to the politically binding package two years ago. According to South Africa, the motivation behind the P&O was not to provide a form of amendment to the NPT, but to be a 'lodestar' or 'yardstick' by which progress could be evaluated. Agus Tarmidzi of Indonesia endorsed this view of the P&O as the 'yardsticks in determining the goals or objectives to be achieved by the 2000 NPT Review Conference.' If, as Goosen argues, the PrepComs should 'identify further steps or programmes of action which can be developed or synthesized at the year 2000 Review Conference', procedures will have to be developed for deciding on new or amended paragraphs as items in the P&O are achieved or superseded.

In relation to the P&O's programme of action on nuclear disarmament, some updating is clearly necessary if the P&O are to act as effective yardsticks for future progress. The CTBT was concluded in 1996, as specified in paragraph 4 a of Decision 2. As of 1 March, 1997, 142 countries have signed. To many, it appears logical that, having achieved the CTBT, the next item (4 b, the fissile materials ban) should be moved up. However, conflict over objectives and the entry into force requirements during the final stages of test ban negotiations have given rise to widespread concerns that the CTBT will not become legally binding for some time, if ever. Therefore some States consider that 4 a should be amended to call for measures to ensure the entry into force of the CTBT as early as possible or by the year 2000.

Though NPT parties could make some exhortatory reference calling on all States to sign and ratify the CTBT, it would be better to leave consideration of specific measures to bring this about to the test ban treaty signatories and the procedures in the CTBT itself. Delays in bringing the CTBT into effect should not be used to block further steps on nuclear disarmament and non-proliferation, as that would play into the hands of the nuclear-weapon States that fought hardest for the rigid provision that threatens the CTBT's implementation, making it hostage to the ratification decisions of 44 States, including India and Pakistan, which have not signed. While many would share the desire to see the CTBT enter into force as early as possible, the prime task of the P&O programme of action is to identify further concrete steps for negotiations or action.

If the fissban were to be moved up, how would this be done? Should it be simply accorded the highest priority in the exact form agreed in May 1995? If not, how can the reference be amended (and what should the new reference say)? Additional questions may require debate, such as whether the next measure on the list is still the next priority objective, or whether it has been superseded, needs re-evaluating, or should be sharpened with a target date.

The third objective (4 c) in the programme of action was a general injunction for systematic and progressive efforts towards eliminating nuclear weapons. This may be too broad to be a useful second step and should probably remain as the third, underlying objective. It would therefore be important for the parties to tease from this broad objective other concrete steps to reinforce progress as the fissban moves up. In that case, is it necessary for the programme of action to identify only multilateral steps, or could the parties identify a step they desire to be undertaken by all or some of the nuclear-weapon States?

Among suggestions for what should follow (or even pre-empt) the fissban as the next priorities for action are: all or some of the six 'immediate steps' identified by the Canberra Commission: taking nuclear forces off alert; removing warheads from their delivery vehicles; ending the deployment of non-strategic nuclear weapons; ending all nuclear testing (covering non-explosive testing of nuclear warheads as well as the explosions now covered by the CTBT?); initiating negotiations to reduce US and Russian arsenals further (START III); an agreement among the nuclear-weapon States on reciprocal 'no first use' undertakings and a 'non-use' undertaking by them in relation to the nuclear-weapon States.

Some NGOs argue for a more comprehensive fissban to follow on from the basic 'cut-off' envisaged by item 4 b in the 1995 P&O. This next stage fissban could address past production, providing for declaration and controls of fissile materials in the military and civilian stockpiles, including in warheads. Many also argue for putting plutonium and highly enriched uranium (HEU) from dismantled warheads under IAEA safeguards, so as to prevent the re-use of nuclear materials in new warheads. Some call for controls on tritium production as a measure to accomplish progressive nuclear disarmament by preventing the reconditioning of boosted warheads, as the tritium (half life 12.3 years) becomes degraded. Another possible measure could be a ban on the production of nuclear weapons (or new warheads), as called for by New Zealand in 1995. A number of NGOs and States Parties want to leap over these incremental measures, arguing that the time has come to identify the objective of a Nuclear Weapon Convention as part of a programme of action for full compliance with the NPT.

While non-nuclear-weapon States may be expected to push for some of the above measures to be included in an updated programme of action on nuclear disarmament in the Principles and Objectives, the nuclear-weapon States are resisting strenuously. Not all steps are practical at this point, but it is vital that NPT parties discuss the pros and cons of specific follow-on measures in order to maintain the relevance of the P&Os.

The distinct feature of category 1 substance is that debates should be focused on further action. One way would be to seek agreement on updating the references to these issues in the P&O, for example by giving a measure a target date or by identifying a forum such as the CD or P-5 talks to negotiate the desired agreement. The parties are also empowered to set up a subsidiary body, as provided for in paragraph 6 of Decision 1 on the strengthened review process. The procedures, rules, scope and role of subsidiary bodies was not specified, so it will up to the parties attending the first and subsequent PrepComs to determine whether any should be established and if so, how they should work. Most importantly, can subsidiary bodies meet in between the PrepComs, or are they only to be convened during a PrepCom or Review Conference?

The NPT is a treaty and its review process is not designed or authorised to be a negotiating forum. However, any group of like-minded States can establish a forum for negotiating a convention or agreement of interest to them. Therefore, it would be theoretically possible for NPT parties to decide on a subsidiary body to negotiate a particular measure, such as a convention on legally binding security assurances, as referred to in paragraph 8 of the P&O. However, it is not clear what kind of decision-making authority can be conferred on a subsidiary body set up under the NPT review process. It is likely that any agreements achieved in a subsidiary body would have to take the form of recommendations to the next Review Conference, which would remain the decision-taking authority. Therefore an alternative, and probably more feasible, approach would be for subsidiary bodies to be set up to discuss specific issues and perhaps pave the way for eventual negotiations, in the CD or among relevant States.

In the interests of non-discrimination among States Parties to the NPT, the likelihood is that subsidiary bodies would be established as 'open-ended' i.e. open to any party to participate. However, it might also be possible to have subsidiary bodies consisting of a group of States Parties with particular regional or political interests in a certain issue, such as a regional nuclear-weapon-free zone. While some have already argued that subsidiary bodies are not empowered to meet between PrepComs, others consider that intersessional meetings are implied in the concept, with either the PrepCom or the subsidiary body itself determining the frequency and venue. If so, this would also be limited by budget and resources. If subsidiary bodies are able to meet intersessionally, they could be required to provide a progress report to subsequent PrepComs and a report plus recommendations to the Review Conference. If not, it is difficult to see what useful function subsidiary bodies would play.

Category 2: non goal oriented substance

This category covers issues which may need to be discussed but which do not necessarily lead to decisions on action (at least at this stage). The aim of addressing these questions is not so much to produce a specific outcome or recommendations, since agreement might not be feasible. For example, some States may not see the issues as problems or may at present be defending national positions that run counter to majority concerns. The principal aim would be to provide a forum for raising concerns relevant to effective operation of the NPT, enabling parties to clarify and exchange information and, if possible, to identify some options for dealing with these issues.

Category 2 substance might include the safety and security of nuclear facilities and the transportation of nuclear materials, theft or nuclear blackmail, disposal of fissile materials both from nuclear warheads and from the operation of nuclear power plants. A further example is the commercial trade in nuclear materials, especially the reprocessing of plutonium, which has become a matter of growing concern to some States for reasons of safety, environmental protection and proliferation risks. Operating at the interface between articles I/II and IV of the treaty, non-military trafficking in the indispensable material for nuclear bombs was not envisaged when the NPT was concluded in 1968, but is now viewed by a growing number of States and security analysts as a proliferation minefield that cannot be ignored much longer. Nevertheless, there is considerable resistance to addressing the plutonium trade at present, so category 2 type discussion is needed before States Parties could consider concrete targets for action.

Some aspects of safeguards, export control regimes, security assurances or universality might also fall into category 2. Even if a specific treaty or agreement is not envisaged for this category, some issues could be profitably worked on in subsidiary bodies, as well as in the PrepComs and Review Conference. While some discussion would be to increase the level of understanding and information on these issues, the PrepComs and/or subsidiary bodies could also make recommendations to the Review Conference, which could take decisions on further ways of enhancing safety, security and the non-proliferation objectives of the treaty.

Category 3: monitoring compliance and implementation

One of the important functions of the NPT's Review Conferences, which was emphasised in the decisions on strengthening the review process, is 'to evaluate the results of the period they are reviewing, including the implementation of undertakings of the States Parties under the Treaty, and identify the areas in which, and the means through which, further progress should be sought in the future...' (Decision 1, paragraph 7). This can be approached in several ways. One proposal is for each State party to submit a report, perhaps on a standardised form, detailing what it has done in the period under review to comply with its treaty obligations. Another option would be for each of the nuclear-weapon States, the International Atomic Energy Agency (IAEA) and the Nuclear Suppliers Group (NSG) to report on their activities and efforts to ensure effective implementation of the treaty.

Although the NSG has no formal role under the NPT, its members have long argued the necessity of export controls as part of their compliance with their obligations under articles I and II, while States which are not members of the NSG have objected that it operates in a discriminatory and ad hoc manner. The IAEA implements the nuclear safeguards regime, also overseeing challenges of non-compliance in relation to particular States (most recently, Iraq and the Democratic People's Republic of Korea). It is also responsible for the '93+2' programme for strengthening the effectiveness and the credibility of safeguards and thus NPT verification. In the interests of transparency and accountability, it would be useful to have reports from these bodies, whether formally or informally established. Some time should be provided for open discussion at the PrepComs and the Review Conference, although agreement would not necessarily be an appropriate requirement.

Apart from the obligations of the Treaty itself, the NPT review process has no mandatory power over the nuclear-weapon States. However, concern that the indefinite extension of the NPT would be treated as a carte blanche by the nuclear-weapon States to conduct their nuclear policies so as to reinforce the nuclear status quo rather than move towards full non-proliferation and nuclear disarmament, was for many States the primary motivation for accepting the package of decisions in May 1995. As clearly reflected in the debates and negotiating record, one reason for linking the strengthened review process and principles and objectives with the indefinite extension of the Treaty was to retain some form of systemic pressure for full compliance with article VI. If individual national reports from each State party might prove too cumbersome, at the very least the declared nuclear-weapon States should submit individual reports on their efforts at compliance. Bearing in mind the injunction to 'look forward as well as back', these reports should not only cover reductions in arsenals or measures undertaken in the period under review. Each nuclear-weapon State should also be encouraged to identify what further steps they envisage, whether unilateral, bilateral, with the P-5 or through multilateral negotiations.

This would go some way to realising the objective of a nuclear weapons register, which Germany called for in 1994. Ideally the report could cover current nuclear weapon holdings (active and inactive stockpiles), identify targets for further reductions, and the disposition of fissile materials from dismantled warheads (including progress towards putting this material under safeguards, thereby ensuring that nuclear arms reduction becomes an irreversible process). Problems which may have contributed to a slowing down of the process or to non-achievement of previously identified targets could also be included. These might, for example, cover technical or financial difficulties in dismantling, disposal or storage of weapons materials, the dismantlement of nuclear weapon facilities, attempts to get ratification of particular agreements (such as START II) through the national democratic procedures, and so on. There would undoubtedly be strong resistance from the nuclear-weapon States to providing such detail on their nuclear capabilities. Even if P-5 opposition makes this aspect of monitoring compliance difficult to establish at this point (as is likely), an initial requirement of annual reports and greater transparency could go some way to fulfilling the envisaged role of the enhanced review process in evaluating compliance and implementation, looking forward as well as back.

Decision-making and Reporting

As is clear from the foregoing discussion, categorising the substantive issues by type as well as subject enables consideration of different procedures for decision-making and reporting, which may facilitate a more effective approach to recommendations and agreements. Traditionally, the five yearly review conferences have taken decisions by consensus. Each main committee has sought to provide a consensus report for incorporation in a final declaration, which the Conference is supposed to adopt by consensus. In fact, this has failed more often than it has succeeded. It has only been possible to adopt a consensus final declaration in 1975 and 1985. In other years, including 1995, no final consensus was forthcoming, diminishing the authority of any decisions made in the committees during the Review Conferences.

It is not obvious from the decisions taken in May 1995 whether States Parties intended the Review Conferences to operate according to past practice. Some argue that this is implied. Certainly no alternative procedural approaches were canvassed, although Decision 1 on strengthening the review stated that the Review Conferences should look forward as well as back and should 'address specifically what might be done to strengthen the implementation of the Treaty and to achieve its universality.' The PrepCom meetings were to 'consider principles, objectives and ways' to promote full implementation of the treaty, but no decisions were taken on how the PrepComs were to transmit their recommendations to subsequent PrepComs and to the Review Conferences.

Concerning the reporting products from the PrepComs, two contrasting proposals for a 'rolling report' have emerged. One envisages a form of a draft final declaration that is worked on at each PrepCom and then finalised and adopted by the Review Conference. I think this would be counterproductive, more likely to skew discussions at the PrepComs and encourage the taking of intransigent and bargaining positions on issues which need to be openly analysed and discussed among States Parties.

A different concept of rolling progress report has also been put forward, whereby some decisions, once taken, could be rolled over to the next Review Conference for full endorsement. Such a provision could avoid duplication of work, allowing the PrepComs to build on foregoing deliberations rather than reinventing them. However, the rules of procedure need to determine whether decisions on subsidiary bodies and recommendations taken by one PrepCom must be retaken in each subsequent PrepCom or if some decisions be rolled over to the Review Conference.

It would be advisable for the PrepComs to steer clear of trying to get a consensus declaration. Instead they should aim for some kind of progress report, either from the PrepCom meeting or in the name of the Chair of the PrepCom. Decisions on action, which may require consensus, should be documented. On discussions of substance falling into categories 2 and 3, the Chairs should note the range of views, concerns, common approaches and principal divisions, including, if possible, some suggestions for how the issue could be addressed further. Such a progress report would be more useful than if a consensus document from each PrepCom were required which, even if successful, would be likely merely to enshrine a lowest common denominator of innocuous sentiment and bland language.

The status and authority of the Principles and Objectives beyond 1995 will have to be determined, together with agreement on whether and how they can be updated. Are the PrepComs empowered to update particular provisions, such as the programme of action, or can this be done only by the quinquennial Review Conferences? Should a decision on updating parts of the P&O require consensus, general agreement (with which consensus is often conflated in international bodies) or majority decision?

Themes and Venues

The Principles and Objectives covered seven issues in 20 paragraphs: universality, non-proliferation, nuclear disarmament, nuclear-weapon-free zones, safeguards and 'peaceful uses' of nuclear energy. During early consideration of how best to focus substantive discussion in the PrepComs, the idea of a theme based approach (with a rotating venue) was canvassed. According to this idea, one PrepCom would deal principally with disarmament, and be held in Geneva, where many delegations have expertise and resources on nuclear weapons issues, because of the CD. Another PrepCom would be held in Vienna, the seat of the IAEA, prioritising safeguards issues. New York would host the PrepCom designated for a focus on nuclear energy and article IV. If convened, the fourth PrepCom would be primarily for the purposes of preparing for the Review Conference and could be held in the same venue as that (Geneva according to past practice, although there may be pressure for Review Conferences to be held in New York from now on).

The benefits of this rotating venue concept would be clear focus and the availability of specific expertise. Drawbacks might include lack of continuity, marginalisation of States Parties lacking diplomatic resources in Geneva and Vienna, a higher cost to the NPT parties concerned. Although it attracted some interest, the theme based approach now looks unlikely to win enough adherents. While it would be desirable to prioritise certain issues for discussion at each particular PrepCom, the structure would need to be flexible enough to respond to priorities that emerge on the international political agenda from one year to another. Therefore, if the rotating venue concept were adopted, States Parties would want assurance that the focus would not be tied too rigidly to one particular theme.

Conclusion

The first PrepCom, from 7-18 April, has the opportunity to lay the groundwork for the enhanced review process to become an effective tool for implementation and accountability or, alternatively, to degenerate into another talk shop. Although it must start as it means to continue, by giving significant time and resources to substantive issues, there is a need to invest serious consideration in how it wants substance to be addressed, what it wants the PrepComs to achieve and how this relates to the Review Conferences and overall context of the non-proliferation regime. Although States Parties should participate with determination to make this enhanced review process work from the very beginning, the difficulties of getting agreement among the diverse interests expressed by nuclear-weapon States, northern States in military alliances with nuclear powers, and southern, mostly non-aligned non-nuclear-weapon States should not be underestimated. Therefore hopes must not be dashed if little is actually achieved at this PrepCom. It will be particularly important to identify useful ways forward, recognising that considerable work will be needed to put the new thinking and appropriate procedures in place over the next 2-3 years.

Already there are worrying indications that some governments lost interest after achieving indefinite extension of the NPT, while others want to use the PrepComs for positioning themselves in relation to other agendas, and may risk tying the review process up in procedural knots. Such attitudes are disastrously short sighted. If the new review process is diverted away from strengthening implementation of the Treaty into power plays and wrangles over procedure, the authority of non-proliferation endeavours could be fatally undermined. It is important to view 1997 as laying the first foundation stones for building a more secure and accountable non-proliferation regime, strengthening the treaty's fundamental injunctions: non acquisition of nuclear weapons and nuclear disarmament.

The intent of the NPT parties in 1995 can only be fulfilled if the enhanced review process addresses substance more coherently and pragmatically than in the past. Issues will undoubtedly be clustered according to subject: nuclear disarmament; safeguards; and nuclear energy; with decisions required on how to resolve questions of overlap. Substance can also be addressed in different ways, depending on their function and desired outcome: whether goal oriented, non goal oriented or for monitoring compliance. Issues need to be differentiated not only by subject but according to whether concrete decisions on action are required or whether discussion is for troubleshooting or monitoring compliance. Actions may include recommendations, updating the Principles and Objectives or setting up subsidiary bodies. Issues such as safety, transport, security, disposal of fissile materials, legal and illegal trade in plutonium may at some stage require action, but at present they need wider consideration and debate. To ensure better accountability, the States Parties should consider instituting progress reports from each of the nuclear-weapon States, the IAEA, the NSG and any other key player (for example a State against whom there had been allegations of possible non-compliance). These should not only summarise the past activities of that State or body in relation to compliance, but should also identify further steps or measures which it would consider (or would like to consider) undertaking to enhance future progress towards effective implementation of the treaty in all its aspects. Reporting would not need to be by consensus, but should summarise the major areas of discussion, disagreement and decision, if any.

It would be a mistake to lean too heavily on the familiar format of past Review Conferences or PrepComs. The new review process requires something different from both. The concept of consensus may need to be reviewed. If applied, consensus might be instituted only for concrete decisions such as updating paragraphs in the Principles and Objectives or establishing a subsidiary body. It would be desirable to have a progress report or summary of debate from each PrepCom, incorporating reports from any parallel committees or subsidiary bodies. This could most practically be produced under the auspices of the Chair. General agreement may be sought to endorse that this report is fair and accurate, but its content should not be made the subject of debate to obtain full agreement or consensus.

It is the responsibility of all States to make the new review process work well. The 1997 PrepCom will probably achieve far less than its advocates, including myself, would like. But it should at least make a serious start to lay the right kind of foundation stones. To squander this hard fought, post-Cold War opportunity to turn back the clock on nuclear proliferation could jeopardise the future effectiveness of non-proliferation endeavours.

Notes and references

1. See John Simpson, The Preparatory Committees for the 2000 Review Conference: Issues Regarding Substance, PPNN Issue Review 11, March 1997.

Rebecca Johnson is Director of Disarmament Intelligence Review.

© 1998 The Acronym Institute.

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