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Disarmament Diplomacy

Issue No. 33, December 1998 - January 1999

Use 1999 To Rescue The NPT Review Process
By Rebecca Johnson

The Non-Proliferation Treaty (NPT) review process is in trouble. After the debacle of the second preparatory committee meeting (PrepCom) in 1998, what is going to happen at the PrepCom in 1999?

Many thought the new process started well with the 1997 PrepCom, which established some procedures and approaches and began drafting recommendations for the next PrepCom and for the review conference in the year 2000. Along came 1998 and everything fell apart. The ostensible issue was the Middle East. Some blamed Egypt and the Arab States for overloading the NPT with a regional agenda, while others blamed the United States for its intransigent refusal to allow any mention of Israel's nuclear weapons in a forum set up to prevent proliferation.

To NPT watchers, however, it was clear that the problems went much further. While some congratulated themselves on providing more time for national statements than in PrepComs under the old system, South Africa and others showed that a series of national monologues was not what they had in mind when they argued in 1995 for the review process to have a more substantive role. They pressed for special time and subsidiary bodies to provide for the focused consideration of specific issues, but got stonewalled by the nuclear-weapon States (NWS).

Canada, too, came up against a brick wall when it proposed that as well as sending text and recommendations towards the next review conference, the PrepComs could also have a role to play in commenting on current events relevant to the Treaty's subject and purpose, such as entry into force of the Comprehensive Test Ban Treaty (CTBT) or encouragement for the strategic arms reduction (START) process. Other ideas and proposals also got lost in the battle for the soul of the review process. For that is really what happened in 1998, and that is why the NPT Parties need to take a long hard look at the review process itself before they generate any more text for documents they have not yet decided on.

It will be impossible to have a successful third PrepCom - and more importantly, review conference in 2000 - unless the States Parties devote some time to working out what they want the review process to do. Much law, cobbled together by politicians with different purposes and compromises, ends up being badly written and ambiguous. So it is with treaties and diplomatic agreements. Things may work for a while, but eventually there is a test case which exposes the contradictions, and at that point the learned judges are called in to untangle the mess. They look at precedent, but cannot be slaves to it. One thing they have to consider is the intention of the lawmakers.

Unfortunately, in 1995 there were several different intentions and motivations for agreeing the package of review and extension decisions. The NWS knew they had a majority for indefinite extension, but wanted to avoid a vote that could be messy. They also feared that if a majority decision was forced through against opposition from a significant bloc (such as the Arab States), the international credibility and integrity of the Treaty could be eroded. Some countries which had been dead set against indefinite extension, on realising that they had lost the numbers game needed something to avoid a total, humiliating defeat: the review decisions were weaker than they had wanted, but better than nothing. Others saw the review process as offering some of the leverage that theoretically was sacrificed when the NPT was indefinitely extended. There were also those with a vision of a non-proliferation Treaty and regime strengthened both by permanence and accountability. So some agreed because it was the minimum they could get away with, while others viewed it as the maximum they could achieve at the time.

It is the clash of these perspectives that is risking the derailment of the review process. If the NPT parties avoid discussing the objectives and purposes of the review process at the 1999 PrepCom, it is certain that they will have to address the core questions in more polarised circumstances in 2000. I share the desire of some of the framers of the 1995 decisions to have the review process address substance and not just procedure, but if the NPT review process in the future is to be able to address substance effectively, I think it is necessary to get a grip on its structure, powers, objectives and limits.

Therefore I am going to argue (somewhat against my inclinations) that the 1999 PrepCom needs to devote itself in the best manner possible to laying the foundations for addressing non-proliferation and nuclear disarmament issues effectively at the 2000 Review Conference.

Suggestion: The Chair should start with a different structure for this PrepCom, making clear that it is not to be regarded as a precedent for future PrepComs. This is still a new process; it has fallen into somewhat of a hole, so it is appropriate and necessary to use innovative methods to dig it out again. The over-riding purpose now is to set things up positively for the 2000 review.

First, the Chair should aim to get agreement on as many of the procedural issues for 2000 as possible, including agenda, chairs, adoption of the rules of procedure, finances etc. Obtaining consensus on the number and type of background documents may be difficult, as this is often a politically charged question. For example: should there be a document reviewing the implementation of the Middle East resolution and if so, who should be charged with writing it? how should the question of export controls be dealt with? what issues should documentation on article I and II compliance cover, and in how much depth? No doubt others will arise, in some cases exposing polarised attitudes towards the status of some parts of the Treaty, the 1995 decisions or the role of agencies or control mechanisms for implementing parts of the regime.

Ideally, the Chair should coordinate or encourage consultations between interested Parties prior to the PrepCom to resolve differences of view. Where this is not possible or fails, the PrepCom will have to try. Any procedural issue that is not agreed on the first day should be remitted to later (but not to midnight on the last day).

Second, at least two days should be devoted to debate on the review process. Not what was in the minds of those who accepted consensus in 1995, as we already know there were many opposing motivations. The task now is to put on the table the main perspectives and options for the future.

To help focus the debate constructively, the defined aim should be to make recommendations to the 2000 Conference on its products, i.e. what kind of agreements and reports it wants to achieve. There are already ideas on the table, based on the injunction to "look forward as well as back" and to evaluate as well as to "identify the areas in which, and the means through which, further progress should be sought in the future".

Suggestions include a 'Principles and Objectives' (P&O) for 2000-2005 and/or a review document. Some argue that the 1995 decisions should stand as they are, with only the 'interim objectives' such as the programme of action requiring to be updated. Some speak of a new set of P&O, while others speak of updating the 1995 decisions. This is not just semantics, but can affect the status of the 1995 decisions. With regard to the review, some want to follow past practice, attempting to get full consensus on all language included in the document, which tends to result in lowest common denominator statements about apple pie. Others would prefer a report on the state of play (rather misleadingly dubbed 'he said, she said') that reflects the main positions and seeks only consensus that the reflection is fair and accurate?

Of course the PrepCom cannot decide the products, but it can make recommendations to 2000, where the decisions would need to be taken early. At the very least, starting the debate now will bring the options into the open, giving more time for serious analysis before the Review Conference.

In debating the desired outcome of the 2000 review, it would be useful if NPT Parties would also consider how best to structure the Conference in order to achieve a successful outcome. They do not necessarily have to follow past practice, some of which was developed to deal with political rivalries that belong in the Cold War era. In 1995 it was concluded that the three main Committees should be retained, but that part of the decision owed more to inertia than real analysis. With the likelihood of having P&O as well as Treaty articles to consider, there are strong grounds for reviewing the division of issues and labour with the aim of adapting the structure to the needs of addressing substance effectively, and not vice-versa (substance being confined, chopped or stretched to fit too-rigid beds).

Once the Parties are clearer about what they want the review conference to produce, they may decide that a different structure would be more conducive to constructive engagement and decision-making. Questions that need to be considered (among others): Who will negotiate the review document(s) and who will negotiate the P&O? If the device of Chair's consultations, so successfully employed by Jayantha Dhanapala in 1995, is to become a regular feature for negotiating the real nitty gritty among the key States, where does that leave the rest? Maybe such things are best left ad hoc, but perhaps, in the interests of democracy and fair representation, they need to be more worked out and accepted. Shouldn't they at least be discussed and analysed?

Other questions that may arise during this part of the debate include the working group/subsidiary body question. What did Decision 1 mean when it stated that "subsidiary bodies could be established within the respective Main Committees for specific issues relevant to the Treaty..."? Did it mean that they could only be established by a main committee during a review conference? Did it mean that a main committee could allocate some part of its issue area to a subsidiary body for more focused consideration, in which case it would not necessarily be confined to the review conference, but might be given a task to perform in between review conferences. These are already ambiguous provisions that the PrepComs have fought over. I am not here suggesting answers but arguing for a more open debate, with a view to the 2000 Review Conference being able to adopt a clearer understanding of the role, structure, possibilities and limits of the review process and future PrepComs.

It should not be expected that the NPT parties would be able to agree on everything, since positions are currently quite far apart on certain aspects of the review process. I would hope that some generally agreed recommendations on products could emerge, since that would greatly increase the prospects of an effective conference in 2000. If not, however, having openly aired the options a year in advance would at least stimulate thinking and intergovernmental consultations in the run-up to 2000.

What is now at stake is the health and credibility of the NPT and its review process beyond 2000.

If the NPT Parties attending the third PrepCom really set themselves the task of a practically oriented debate on using the review process to strengthen the non-proliferation regime, they would be doing a far greater service than going through the motions of general debates, cluster debates and parsing endless paragraphs of text to send to the next meeting. Nevertheless I am sure that some will want to devote at least a few days to this business. Fine, but I would suggest returning to the outstanding issues of procedure (documents and suchlike) as soon as the debate on objectives and products is over. By this time, delegations will either be ready to kill each other or to come to a pragmatic solution, preferably the latter.

Some will no doubt prefer the refuge of opacity and ambiguity, hoping thereby to further their interests either in keeping the review process as minimal as possible or, alternatively, in loading as much onto it as they can. Some may genuinely fear that open debate on these questions will expose rifts too deep for the non-proliferation regime to face. That is a risk, but the danger of trying to paper over the widening cracks may be far greater.

If it had proved possible to address the NPT's obligations on non-proliferation and disarmament constructively within the ambiguities left by the 1995 compromises, then I would have preferred to be knocking around ideas for furthering progress on nuclear disarmament, safeguards and universality. But faced with a review process that is failing to address substance or strengthen accountability, it is necessary to devote some time to developing clearer understandings and a more collective commitment to a workable process for implementing the Non-Proliferation Treaty.

Rebecca Johnson is the Executive Director of the Acronym Institute.

This is an opinion piece and not a report. The author takes sole responsibility for views expressed, which should not be taken to represent the views of the Acronym Institute. The author would especially like to thank a number of diplomats with whom she has discussed the problems and ideas sketched here, and to acknowledge their helpful and constructive input into her thinking.

© 1998 The Acronym Institute.

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