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Part III: Looking Towards 2000

Acronym Report No.13

The Review Process has not been as much of a success as its advocates in 1995 had hoped. The difficulties NPT parties have had in developing effective structures, processes and mechanisms to turn the 1995 decisions into practical reality reveal that some basic questions need to be addressed.

The 1995 decisions charged the PrepComs with making recommendations to 2000, although as the process developed from 1997 it became obvious that there was a lack of clarity or agreement about what kind of recommendations should be made, and what their status should be. The first PrepCom started a rolling text covering the subject matter of the Treaty. This was intended to be worked on by each successive PrepCom and then sent to the review conference as agreed recommendations. Some delegations considered that such recommendations, if agreed and transmitted by the PrepCom, would therefore have to be included in any review conference outcome. Others, quoting the masculinist adage that 'the review conference is master of its work' (a great catch-all, meaning that whatever the States Parties decide, consistent with the Treaty, they can implement), argued that the recommendations could only ever be a resource for the review conference and not binding in any way. As it is (and partly due to the different views of the status and weight of PrepCom recommendations), the third PrepCom was unable to transmit any recommendations on substance. This was acknowledged by all to be a failure.

The first set of questions relate to the context in which the 1995 decisions were made and the expectations of NPT parties.

Arising from the above, the central concern for most states is to determine what can be done to improve things for the future. In particular:

Additional questions address the role of the Principles and Objectives, their relation to the review document, and whether and how to update or renew them at subsequent review conferences. At the Third PrepCom in 1999, Reyes attempted to get consensus on what agreements, decisions and/or documents ("products") the 2000 Conference should aim for. Though dressed in procedural clothing, the debate was at core about how issues of substance should be addressed, revealing deep political differences about how the forward-looking and backward-looking elements should be related, if at all.

Intentions and Expectations

It is now widely accepted that indefinite extension of the NPT without a vote and without formal objections would have been impossible without the "tripod" of three agreements: the two decisions on Strengthening the Review Process for the Treaty and Principles and Objections for Nuclear Non-Proliferation and Disarmament, and the Resolution on the Middle East.(1) This was the price tag, as accepted by the NWS.(2)

The main architects behind the central package of strengthened review and indefinite extension, South Africa, Germany and Canada, wanted a more vigorous non-proliferation regime. They seem genuinely to have hoped that providing the stability of indefinite duration with concrete mechanisms for measuring progress and maintaining multilateral pressure for implementation and accountability would buttress the NPT against being undermined by the actions of new proliferators such as Iraq and North Korea, NPT hold-outs such as India, Pakistan and Israel, and the tenacious hold of nuclear policies in the declared NWS. The end of the Cold War made possible a greater alliance between Western and non-aligned states to impose greater demands on the NWS. In general, the majority of Western and former Eastern-bloc countries, which had thrown their weight behind indefinite extension but were queasy about making it 'unconditional', were very happy to embrace the package which Dhanapala managed to pull together. To some, it offered the best of both worlds: permanence with accountability.(3)

Some of the non-aligned states were more ambivalent. They had wanted to prevent indefinite extension, because they feared losing what leverage they had on the NWS (which in reality had only had salience in the period 1990-1995, precisely because of the importance of the extension decision). Realising that they did not have the numbers to thwart indefinite extension, but armed with the upper hand in an intractable rift over secret or open voting procedures, many NAM countries came to be persuaded that strengthening the review process was the maximum they would be able to achieve.(4) Furthermore, it is important to acknowledge that most NAM states wanted a robust and effective non-proliferation regime too. It would not have been in their own security interests to hold out for a damaging split that could have weakened the credibility of the NPT. It should be remembered that in 1995, the only viable alternative to indefinite extension would also have provided long-term stability, such as twenty-five years rolling or renewable periods. There were very few takers for short extension options intended to hold the Treaty hostage to the accomplishment of specific measures or objectives. One eminent NPT watcher noted that the motivation for some states was "enhanced possibilities of putting pressure upon the five declared nuclear weapon states to engage in productive nuclear disarmament negotiations", while for others it was "a desire to make the NPT review process more constructive and 'efficient'".(5)

The Arab states pushed for the Resolution on the Middle East because they wanted to force the United States to exert pressure on Israel to give up its nuclear capability. As was clear from their statements in the General Debate and in the Main Committees, the Arab States in 1995 decided to make universality their single priority, with particular emphasis on the necessity for Israel to dismantle its nuclear weapons, put its nuclear facilities under safeguards and accede to the NPT. Some had publicly announced that they could not support indefinite extension as long as Israel remained outside the NPT. Libya and Syria said they could not support any extension without Israel's accession. Others remained non-committal on the question of extension, but emphasised Middle East security concerns. None of them gave backing to indefinite extension - not even Kuwait and Saudi Arabia, viewed almost as client states of the United States after the Gulf War. Instead, the Arab states together submitted a draft resolution on the Middle East, on which they were prepared to negotiate, but not to drop. This became the basis for the Resolution on the Middle East. Although representatives of the United States, Russia and Britain now say that they rescued the resolution for Egypt, because the Arab states refused to co-sponsor the watered-down version, it is clear that they did so because they understood that this was the price for persuading key Middle Eastern states to accept indefinite extension without a vote.

The motivation for the NWS was obtaining indefinite extension (or in China's case, a 'smooth extension') without a damaging split or divisive voting. They did not want a stronger review process or a resolution on the Middle East, but they agreed to them in order to get indefinite extension without a vote. During Dhanapala's Presidential Consultations, some of the NWS fought hard to water down the language and concepts under discussion. For example, the proposal to have a number of meetings of states parties in between the quinquennial review conferences was accepted only if the meetings were called 'PrepComs', on the basis that this fitted past practice, an argument which is itself revealing of their intentions. Though they would have preferred business as usual, the NWS knowingly accepted the review decisions and sponsored the Resolution on the Middle East as the price for securing indefinite extension of the Treaty without a vote.

How have the expectations changed?

By the time of the second PrepCom it was becoming clear that minimalist and maximalist approaches were developing. The NWS and many others were reasonably comfortable with the approach of the 1997 PrepCom, which appeared to establish a cumulative process for producing recommendations for the next review conference to consider. Only Mexico openly challenged this approach, which seemed to give the PrepComs little more than the role of second-guessing what might be relevant for a future review conference and funnelling text forward. By the second PrepCom, however, a larger number of countries had become sceptical of a process which appeared to have few powers other than developing a rolling text. Furthermore, it was becoming clear that significant parts of text laboriously negotiated at one PrepCom would be outdated or irrelevant by the next, leading to questions about the purpose and usefulness of the procedures being put in place.

Questions arose concerning the role and status of the rolling text:

There were also confusions over the nature of the rolling text. Patokallio developed text based on the structure of the P&O, but it was a mélange of backward-looking (review) paragraphs and forward-looking objectives or aspirations. The confusion compounded the difficulties faced in negotiations and contributed to the inability of the 1998 or 1999 PrepComs to agree on adopting recommendations or a rolling text.

As the review process moved from year to year, a growing number of delegations came to regard the four-year development of a rolling text as pointless. There were two responses to this realisation. Some, like Russia, regarded the review process itself as a time- and resource-wasting irrelevance, which they would be happy to see disappear after 2000. Others sought to put more flesh on the skeleton of the 1995 decisions, to provide more practical shape and function. Among those who have put forward useful suggestions for making the review process work more effectively are South Africa, Canada, Malaysia, Mexico, Egypt, and Brazil, as well as joint positions from the NAM and the New Agenda Coalition (NAC), which was formed shortly after the second PrepCom collapsed.(6)

Falling short of expectations

Clearly the review process has had significant problems of interpretation that have hampered its implementation. At the very least, however, it has put a sharper spotlight on the dangers to nuclear non-proliferation and has helped to promote greater transparency and information exchange about nuclear weapon holdings. Four of the NWS have made efforts to provide more information about their arsenals and programmes than ever before, although they do not seem to have encouraged questions or discussion about their accounts of progress made. Additionally, for the first two PrepComs the NWS negotiated with each other on a common P-5 statement. These statements may have been fairly anodyne, expressing the lowest common denominator of agreed positions, but they were symbolically important, acknowledging a mutual responsibility towards the Treaty. A joint statement was made impossible at the 1999 PrepCom because of deteriorating relations between the United States and both China and Russia, following NATO airstrikes against Yugoslavia. China refused to engage in P-5 talks after its Embassy in Belgrade was bombed.

Although the review process has promoted greater transparency, most NPT parties and NGOs would accept that it has not worked as well as had been hoped. A few diplomats and observers have uttered 'I told you so' sentiments. Some had even wanted the process to fail, thus bearing out their predictions in 1995 that the NWS would not honour the deal once they had obtained indefinite extension. For many, the central problems are political, according to which the review process is failing because some states – notably the NWS – do not want to make it work. There may be some truth in that. Some of the NWS still appear to believe nuclear disarmament to be optional rather than obligatory under the Treaty, and they would certainly prefer to do without the more frequent scrutiny that the enhanced review process entails. The reluctance of some of the NWS to engage with the NNWS in addressing and fulfilling meaningful interim measures are part of what has stymied the review process. There is thus a real danger of self-fulfilling the most pessimistic expectations; but just as the NWS were prepared to accept the review decisions and Resolution on the Middle East in order to obtain indefinite extension, it would not be in their interests to sabotage the review process, for fear of undermining the Treaty's credibility.

Clarifying the 1995 decisions

The 1995 decisions were the product of negotiations between states with different aspirations and objectives, and it should not be surprising that they were vaguely worded and unclear in places. Decision 1 on strengthening the review process clearly establishes changes to past practice:

[para 2]     the five-yearly review conferences would be mandatory, not optional;
[para 3]     at least three additional meetings of 10-days duration would be held in each of the three years preceding a review conference, with an optional fourth in the year of the review conference itself;
[para 4]     the meetings would have a specific purpose, i.e. to "consider principles, objectives and ways" to promote the full implementation and universality of the Treaty, with the task of making recommendations to the review conference;
[para 5]     the structure of three Main Committees should be retained, with overlaps to be resolved by the General Committee;
[para 6]     subsidiary bodies could be established within the Main Committees to provide a "focussed consideration" for specific issues;
[para 7]     the review conferences should look forward as well as back and be tasked not only with evaluating the functioning and implementation of the Treaty for the previous five years, but also with identifying "the areas in which, and the means through which, further progress should be sought in the future" to strengthen implementation and achieve universality

There is little controversy about para 1, although the tenor of Decision 1 is to take the responsibility for convening review meetings from the depositary states and to put it in the hands of all states parties.

PrepComs or ImpComs

It is unlikely that in 2000 there will be a significant challenge to the decision to hold three or four meetings in the years prior to a review conference, but if something is not done to improve the purpose and focus of the meetings, they will come to be regarded as a waste of money and effort.

The disagreements arise over para 4, which sets out the tasks in addition to the procedural preparations for the next review conference (which do not in general require much time). Some states, including NWS, take a narrow view of the requirement to make recommendations to the review conference. Having successfully argued for the meetings to be called 'preparatory', they insist that they have no independent powers or functions and that their sole role is to provide a discussion forum and transmit views forwards, for decision at a later date. Others disagree. In their view, the provisions in Decision 1 are enabling provisions, indicating new tasks and functions. They are not restrictive provisions, whereby what is not expressly delineated is thereby ruled out. Many things were left undefined, enabling the states parties to build on the bare bones, as appropriate.

Questions which have come up during the review process include:

These are questions the 2000 Review Conference will need to address. While some states may make proposals in their national statements, there is no place in the Main Committees for such questions to be thrashed out. They will therefore need to be addressed in Presidential Consultations or perhaps in a subsidiary body convened specifically to look at how to improve the effective functioning of the review process.

Some proposals have already been put forward. At the 1998 PrepCom, Canada proposed that in addition to general agreements and compiled proposals, such as those envisaged for adding to the 1997 report, there should be some way for a PrepCom to reflect important contemporary issues, relevant to the non-proliferation regime. Canada proposed a PrepCom report in parts, with one section briefly reporting on the issues to which special time had been allocated (for 1998 that would have been security assurances, the Resolution on the Middle East, and fissban) while another section would contain collective perspectives or agreements of a time-urgent or more specific nature than envisaged in the general agreements, such as START, the CTBT, the Additional Protocol on IAEA safeguards, or events such as nuclear tests being conducted (as India and Pakistan did in 1998) or violations being detected or investigated.

Implementing Committees

Notwithstanding the 'PrepCom' name, what tasks would make sense for the three meetings held in the years leading up to the next review conference? By past experience the sausage machine of funnelling increasingly outdated text from year to year is not a good use of the time and resources. The PrepComs are too distant in time to be relevantly second-guessing what might be the forward-looking priorities for the next review conference. It would be better to view the primary task of the review process as overseeing implementation of the previous review conference's decisions, principles and objectives etc. than as preparing for the next review conference.

Para 4 of the Decision on strengthening the review process gives the inter-review meetings the purpose of considering principles, objectives and ways to promote the full implementation of the Treaty. If the previous review conference has agreed some form of forward-looking objectives or tasks (which could be in the form of P&O or included within a different document), the three annual meetings would be better employed overseeing and advising on implementation of the tasks and objectives – as 'implementing committees' rather than preparatory. Even if a RevCon fails to agree a new set of P&O, the previous Principles and Objectives can stand as a benchmark for working on implementation and accountability. Combining such an approach with Canada's 1998 proposal for commenting on current events, the 'ImpComs' could then be structured for discussions aimed at agreeing an annual snapshot of relevant events, concerns, progress, obstacles and constructive ideas, taking into account the international and political environment at the time, which will fluctuate year by year. The snapshot could be in the form of a factual report, agreed declaration or a statement from the PrepCom Chair. The purpose would be to provide both a marker against which the following year's progress could be compared, and a mechanism for year-by-year accountability of implementation of the previous RevCon's decisions and objectives. All three snapshots would become documents of the next conference to assist in its review assessment and identification of objectives for the next five years. Where appropriate, the review conference and ImpComs could set up subsidiary bodies and/or facilitators for intersessional work on assisting with the implementation of specific tasks or objectives.

Main Committees

Para 5 decided to retain the structure of three Main Committees, which was started in 1985, principally to appease competing demands from the three different Cold War groupings of states, so that certain ambassadors could be awarded similarly significant posts. Prior to this, the Article III and Article IV issues of safeguards and nuclear energy had been contained in one committee, with a second committee to address nuclear disarmament. Despite the end of the Cold War and the growing stresses within the groups, already apparent in 1995, there was little discussion when this provision was inserted. During the review process, however, the usefulness of this model has come under question, in part because the First PrepCom modelled its clusters on the three Main Committees, seeking to allot the principles and objectives in Decision 2 to the existing allocation of Treaty articles and preambular paragraphs,. In particular, there is a sense that Main Committee I on nuclear disarmament is overloaded, while Main Committees II and III have less on their plates. Canada argued that the Main Committees should be abandoned in favour of addressing the Treaty and P&O more systematically by article and paragraph. This may be too drastic, but the Committee structure and allocation of issues need to be revisited. During the review conferences, at least two Main Committees often meet concurrently, which stretches the smaller, usually non-aligned delegations. This becomes particularly hard if President's Consultations are also being held, since these tend to be regarded as more important that the Main Committees. Therefore some consider that in the interests of more effective participation the Committees should be revised, and that the allocation of time should reflect the weight and number of the issues to be addressed. While some argue that since the 1995 decisions cannot be revisited, the Main Committee structure must stay, others quote 'the review conference is master of its work'. In this case, they mean that the allocation of items should be open for discussion in 2000, with a view to determining the most efficient way of conducting the review. The question of the Main Committees is also linked with the question of 'products of the review conference' (see below) and with concerns about 'balance', according to which the amount of time allocated to a Committee is seen as a reflection of the importance of that subject. On that basis, some want more time to be allocated to nuclear disarmament, while others argue that safeguards are just as much a priority for NPT parties as nuclear disarmament, even if they are less contentious. Similarly, some non-aligned delegations want to ensure that their 'inalienable right' to nuclear energy is not compromised by giving the issue less debating time, even though Article IV issues never use up their allocation of time. Whilst the 2000 Conference is presently required to convene the three Main Committees, the structure should be reconsidered, together with proposals for improving the functioning of the review process.

Subsidiary bodies

Para 6's provision for subsidiary bodies has already been the subject of argument among NPT parties. At the 1998 PrepCom, South Africa sought to amend rule 34 of the draft rules of procedure to reflect the reference to subsidiary bodies in para 6. South Africa had made a comprehensive proposal to the second PrepCom for addressing nuclear disarmament, which included a proposal that a subsidiary body be established at the 2000 Review Conference. Taking as its starting point item 4c of the 1995 P&O, South Africa argued for "a structured opportunity to deliberate on the practical steps" for implementing Article VI and the disarmament provisions and programme of action outlined in the P&O, and proposed that the 2000 Review Conference should establish a subsidiary body to Main Committee 1 and also ensure that time would be devoted at future PrepComs for the practical consideration of nuclear disarmament steps.

Russia, opposing South Africa (which was backed by the NAM), argued that the term working groups, which was in the rules of procedure adopted in 1995, could just as well cover subsidiary bodies, but South Africa held to its view that the language of the 1995 decisions should be reflected in the rules. In 1999, the proposal for a rule change to denote subsidiary bodies went through on the second day without any fuss. Though some of the NWS reiterated that this was only a cosmetic change, other NPT parties believe that the rule change paves the way for the establishment of subsidiary bodies in 2000. Egypt and South Africa insisted that the 1999 PrepCom report should note in writing that some States Parties had proposed subsidiary bodies on nuclear disarmament and the Resolution on the Middle East. This was in accordance with para 6, the decision of whether to establish a subsidiary body being left to the review conference. As the 1999 PrepCom failed to make formal recommendations to the review conference, noting that proposals on subsidiary bodies were made is an indication of NPT Parties' intentions, but not in any way binding. Since in the view of some NPT parties the PrepCom recommendations could only ever be indicative, it is unclear whether this makes much of a difference.

Establishment, role and function of subsidiary bodies

Apart from saying that subsidiary bodies could be established within the Main Committees, Decision 1 offered little indication of their role, powers or limitations. Again, some states, notably NWS, take a minimalist view, appearing to hold that what was not spelled out is ruled out. They therefore appear to argue that the subsidiary bodies can only be established for the duration of a review conference and in the context of the Main Committees. In that case, what would happen to the provision for subsidiary bodies if the review conference decided to abandon the Main Committee structure? Once again, subject to the agreement of NPT parties, there is no reason why the review conference cannot develop the role of subsidiary bodies to do what it requires. For example, since well before 1995, there has been pressure from some quarters for legally binding security assurances. If these were to be attached to the NPT as a protocol, as Nigeria, South Africa and others have proposed, they would have to be negotiated by NPT parties. Since it would be unrealistic to expect negotiations to be established and completed within the four-week space of a review conference, it would make sense for the RevCon to establish an open-ended subsidiary body of states parties to conduct the negotiations and convene intersessional meetings as required until the protocol was concluded. I am not arguing here for negotiations on security assurances, but showing that the type of work that a subsidiary body might usefully be appointed to carry out might include negotiations and might necessitate intersessional work. Despite the assertions of some NWS, neither of these possibilities is actually ruled out by para 6, providing there is agreement among NPT parties. Indeed, it could be argued that para 6's requirement that subsidiary bodies, if established, should provide for a focussed consideration of specific issues, could be construed as including negotiations, as additional instruments and protocols have at times been proposed as ways of furthering the implementation of the Treaty. For some such purposes, the Conference on Disarmament or an alternative negotiating forum, such as set up through the Ottawa process for landmines, might not be deemed in the best interests of the non-proliferation regime. The 2000 Review Conference will likely have to decide on proposals to establish one or more subsidiary bodies, so some parameters and terms of reference will have to be worked out, which need not be identical for all.

Review Conferences: Powers and Functions

The crucial difference in the pre- and post-1995 powers and functions of the review conferences is contained in para 7 of Decision 1, which states that they should "look forward as well as back". The RevCons are required to "identify the areas in which, and the means through which, further progress should be sought in the future". These obligations have procedural as well as political ramifications. At the 1999 PrepCom, the Chair, Camilo Reyes, encouraged discussion on what agreements, decisions and/or documents the 2000 Conference should aim for. Many delegations had hoped that the Third PrepCom would be able to recommend one of the options, thereby clearing the way for the 2000 Review Conference to be structured to promote agreement on the substance. In particular, there was majority backing for two basic products for 2000, a forward-looking 'P&O' style document and a review and evaluation document for the period 1995-2000.

The debate became politically-charged and no agreement was possible. Four distinct options for the 'products and outcomes' emerged, with some blurring of the edges and nuanced differences:

As no recommendations were made in 1999, the question of products and outcome may be one of the most important considerations for the 2000 Conference. The decision does not have to be taken at the very beginning of the Conference, despite the pressure that may come from some quarters to do so. In an ideal world it might have been better to start with a clear concept of how the forward-looking objectives would be negotiated and adopted, but in view of the unexpected acrimony that this question generated at the 1999 PrepCom, it might be wiser to let the review begin without determining in advance the structure of the products. Consensus may emerge on one, two or three documents as states parties get to grips with the different requirements of the forward-looking and backward-looking tasks. If not, the President will need to have a strategy or two up his sleeve. One way to avoid forcing the issue too early would be for the Main Committees to be requested to distinguish between (and separate) the forward-looking proposals and text from review-oriented text as they begin the process of debating their relevant issues. This could form the basis for either two distinct products or for separate parts of one final document. At some point, however, the President will need to decide whether more focussed negotiations are needed to turn the forward looking elements into a set of principles and objectives for 2000. One determining factor might be the degree of consensus deemed necessary for agreeing certain kinds of document or text.

Principles and Objectives

The Principles and Objectives were at the heart of the 1995 decisions, viewed as a means of giving concrete and up-to-date expression to the often fuzzily-worded obligations in the 1968 Treaty. In addition to questions of substance, which will be considered in Part IV, the central debate concerns the role of the 1995 P&O and whether and how they should be updated, modified or renewed in 2000. The majority view is that the 1995 P&O stand as the principles and objectives agreed in conjunction with the extension decision. There is great resistance to the idea of modifying or amending them as such, as lack of agreement might be construed as weakening the validity of the 1995 decisions. There seems to be general agreement that at the very least the 1995 P&O remain a valid basis for the review process regardless of what is determined in 2000.

A number of states, however, want there to be negotiations at the review conference on a set of similarly-structured Principles and Objectives for 2000, identifying what needs to be done for the next five years, and building on but not supplanting the 1995 agreements. In particular, while maintaining that the 'principles' are enduring, they consider that there should be new or updated language on certain of the objectives. Most often cited are the paragraphs referring to the CTBT, which was concluded in 1996 as required, but has not yet entered into force; the fissban, which has been the victim of deadlock in the CD ever since 1995; Para 4 (c) of the programme of action on nuclear disarmament in the P&O, which some think should identify more concrete steps to indicate what 'determined pursuit' of 'systematic and progressive' nuclear disarmament should look like; and safeguards, following the dismal rate of ratifications of the Additional Protocol agreed in 1997. The 1995 P&O were negotiated in Dhanapala's Presidential Consultations among 25 or so delegations. Some states are assuming that Baali will convene Presidential Consultations along these lines in 2000, while others argue that if P&O are to be a regularly sought or customary outcome of review conferences from now on, they should be negotiated by all the parties, in plenary or in Main Committees. As discussed above, it is not essential that the Principles and Objectives be contained in a separate document from the review, but a separately identifiable decision would be more user friendly and would more closely demonstrate the link with the 1995 decisions. As the P&O need to be action oriented, every effort must be made to adopt them by consensus. By contrast, consensus on all aspects of the review is less necessary. There are likely to be fundamental differences of opinion over what should be said about nuclear disarmament, the ABM Treaty, missile defence and whether a new arms race may be in the making, the CTBT, the fissban, export controls, the Middle East and so on. The review document would be just as valid (and probably more useful) if it reported on these differences, rather than seeking to paper over the cracks and obtain consensus on the basis of the lowest common denominator. The P&O, however, would need to be adopted by consensus.

Some delegations, including France and Russia, take the view that since the 1995 P&O have not yet been fulfilled, they should stand as the guide and yardstick for the next five years too. At the 1999 PrepCom, France broke with EU solidarity, where there was near consensus on having two 'products' (a forward-looking P&O-style document and a backward-looking review document). France was widely understood to be unhappy with how the review process had been developing and seemed to want the 2000 RevCon to revert to the pre-1995 patterns. In particular, France was concerned that the P&O had raised expectations that could not be fulfilled.

The risk of failure due to high expectations is a theme likely to be frequently heard in the run-up and during the 2000 Conference, but it is misleading. Distinctions must be made between unrealistic expectations for the NPT to solve tasks beyond its powers, such as peace in regions of tension, and expectations that are appropriate to the NPT's core obligations and within its remit, but which some states do not wish to meet. An important reason for the 1995 P&O was the perception by the NNWS that they needed more reliable ways and means to exert greater leverage on the NWS for more progress on nuclear disarmament. At a time when some of the NWS are reinforcing their nuclear options and pursuing policies that could provoke a new arms race, it is unsurprising that the non-nuclear parties should push for more responsible policies. If the NPT were to disintegrate or collapse, it is those who had forsworn nuclear capabilities who would initially be left most vulnerable, so it is in their interests to ensure that all parts of the NPT bargain are fulfilled. In this regard, it is important to show that there is continuing respect for the 1995 decisions and agreements. One of the most effective ways would be to negotiate a short, focussed and forward-looking set of Principles and Objectives for 2000, identifying the objectives and tasks to be worked on for the next five years. Failing that, a final document which contains separate sections reviewing the treaty and containing objectives for the future would at least provide a yardstick for future work.

Resolution on the Middle East

The Resolution on the Middle East was adopted in 1995 directly after the three decisions relating to the review and extension of the NPT. In 1998, the United States wanted to portray the Middle East resolution as a one-off expression of aspiration, without consequences beyond 1995. Egypt and the Arab states, for their part, pushed hard for the NPT parties to take responsibility for 'implementation' of the resolution. In 1999, Egypt was backed not only by the Arab States, but by six paragraphs of the NAM working paper, and by the EU and Canada, as well as France, which called the Resolution "an integral part of the set of four documents agreed". Seeking to avoid the problems of 1998, the United States told the Third PrepCom that it shared the view that the goals and objectives of the 1995 Resolution "remain valid until those goals are achieved".(7) The US agreed that the PrepCom should request the UN Secretariat to prepare background documentation on the implementation of the Resolution "reflecting developments since 1995 with a view to realising fully the objectives of the resolution". At the same time, the United States has sought to prevent any special privileges being accorded to the Resolution, particularly wanting to avoid any additional responsibilities being assigned to the depositary states who had sponsored the Resolution in 1995.

It is certain that the Resolution on the Middle East will be the main focus for the Arab States in 2000. There will undoubtedly be bilateral talks between the United States and Egypt and possibly also with other states in the region, but much will depend on what is happening with the Middle East peace process at the time of the Review Conference. The Middle East Resolution, as adopted, acknowledges the dangers from the proliferation of all weapons of mass destruction, and endorses the aims and objectives of the Middle East process (something which Iran balked at in 1995, but was persuaded to accept). It calls on NPT parties, especially the NWS, to "extend their cooperation and exert their utmost efforts with a view to ensuring the early establishment by regional parties of a Middle East zone free of nuclear and all other weapons of mass destruction and their delivery systems".

The United States' position is schizophrenic, which is part of the problem. On the one hand, the US wants to be seen to reinforce the NPT and join calls for universality, especially in the aftermath of the South Asian tests and Iraqi and North Korean violations. On the other hand, Israel is a major ally in an unstable region, with the added complications for the US Government of a large and influential domestic constituency. In practical terms, the United States knows that Israel will not give up its nuclear capabilities as long as it regards its national security to be threatened by its neighbours, some of whom may be armed with chemical and biological armaments and missile capabilities. So it views the pressure on the Middle East resolution as mainly designed to isolate, name and shame Israel, and to focus hostility and embarrassment on Israel and the United States. While Washington respects Egypt's long-time advocacy of a zone free of weapons of mass destruction in the Middle East, and recognises Cairo's role in signing up the remaining states in the region to the NPT, the United States is cynical about the motives of some of the other Middle Eastern states. US officials question what, in practical terms, is expected as proof of 'implementing' the Resolution in such a complex political situation. The Resolution is thus portrayed as a particular form of gesture politics, necessary for Egypt and others because of domestic clamour and national politics, but not capable of being constructively worked on within the NPT context. Responding to frequent accusations of having supported and assisted the Israeli nuclear programme, the United States in 1999 declared that "to promote further adherence [to the NPT] the United States, by law and policy, does not engage in nuclear cooperation with non-parties to the Treaty". But what more is required?

There is an urgent necessity for the countries directly concerned to work out how to address Israel's nuclear weapons and Arab security concerns in the context of the NPT in ways that are appropriate to the powers and limitations of the review process. The United States needs to do more to convince NPT parties that it is not operating a double standard, providing Israeli nuclear forces with special protection while condemning India, Pakistan and NPT parties such as Iran, which is in good standing as far as the IAEA safeguards system is concerned. The Arab States, for their part, need to re-examine the ways in which they are using the Middle East Resolution simply as a stick to beat the United States and Israel, without having any real intention to engage in finding ways to reduce regional tensions, nor of altering their own rhetoric, military ambitions and behaviour to help create the conditions under which the Resolution could begin to be implemented.

Managing Decision-making in 2000 and Beyond

In addition to questions surrounding the products and outcome of the 2000 Review Conference, there are several potential problems relating to managing decision-making which will have to be addressed:

·the role of President's Consultations, if any;

·redundant or dysfunctional Cold War groupings, newly emerging 'like-minded' groups, and representation in formal and informal consultations and decision-making.

·voting and consensus

Since 1995 suggestions have also been canvassed that the NPT would benefit from some form of executive council, standing committee or representative body to liaise with States Parties and have responsibility for overseeing procedural questions, implementation of the Treaty and review decisions, compliance ambiguities and complaints about non-compliance.

President's Consultations

In 1995, Dhanapala successfully harnessed meetings among a small group of around 25 key states to deal with some of the trickier issues of the Review and Extension Conference, most notably for negotiating on the Principles and Objectives and enhanced review decisions. The group included the NWS, South Africa, Mexico, Algeria, Australia, Canada, Colombia, Egypt, Germany, Hungary, Indonesia, Iran, Japan, Malaysia, Netherlands, Nigeria, Poland, Romania, Senegal, Sri Lanka, Sweden and Venezuela. This was larger and more representative than the Bureau, but smaller than the 38-member General Committee, both of which are formally constituted to assist the President in running the Conference and facilitating information exchange and consensus. Restricting the numbers enabled Dhanapala to keep the negotiations tight and focussed, and where possible to build some cross-border alliances.

Patokallio adopted a similar structure at the First PrepCom, but encountered difficulties as some states with ideas (and also some diplomats with egos) objected to being excluded. At the second PrepCom, Wyzner started with a closed group, but then made it open-ended. In practice, only a half dozen additional delegations actually wished to spend long hours in a badly ventilated room poring over the nuances and details of text, but the question of whether Presidential Consultations should be closed or open-ended raises a fundamental principle of participation. In considering setting up President's Consultations, there is a need to balance the competing requirements of efficiency in negotiations with representation, inclusive participation and democracy, particularly the principle that all States Parties have an equal vote.

Dhanapala's President's Consultations were generally accepted as necessary in the special circumstances of 1995. If, as some suggest, President's Consultations are to be established as the norm for negotiating important documents, such as P&O, the question of representation and participation will have to be resolved more satisfactorily.

Groupings

During the Cold War, decision-making and appointments were managed and distributed by means of three groupings: the Western group and others, centred on US allies; the Eastern European group and others, centred on the Soviet bloc; and the non-aligned states and others, which were mostly developing countries, but included Sweden, which wanted to demonstrate its independence from the East-West bloc system. China generally acts as a 'group of one', although in some contexts, it joins in NAM meetings.

At the end of the Cold War, the divisions began to break down. Sweden and Argentina joined the Western group, South Africa and some former Eastern-bloc countries joined the NAM, while half the former Soviet states applied to join NATO or the EU. Some of these remained nominally within the Eastern group, but routinely backed whatever the US, France or Britain wanted. Consequently, the Eastern group has virtually ceased to function, which leaves some states, such as those of Central Asia without an effective means of participating in decision-making and receiving information from the Bureau. The Western group has its own tensions, which are particularly noticeable in fora such as the Conference on Disarmament and the Ad Hoc Group negotiating a verification protocol for the Biological Weapons Convention. The EU tries to decide common positions and nominations before-hand, which distorts Western-group decision-making, to the frequent frustration of non-EU members, such as Canada, Australia and New Zealand. There are also tensions between positions advocated by the three NWS within the Western group – who often push for NATO solidarity to bolster their positions and avoid becoming isolated – and those of the more disarmament-oriented states, such as Ireland, Sweden and New Zealand, who (partly as a consequence, perhaps?) joined the New Agenda Coalition in 1998.

The NAM has also had serious internal problems, not least in contending with the conflicting positions of India and Pakistan, increasingly vociferous nuclear weapon possessors. Although India and Pakistan are non-NPT members, they can have influence on common positions through NAM Heads of State meetings which issue common declarations (e.g. the Cartagena Summit in 1996 and the Durban Summit in 1998). Within the NAM the Arab states frequently act as a bloc, thereby ensuring a magnified backing for their positions on Israel. Just as the Western group shies away from criticising the Western NWS, the NAM has tended to avoid criticising India and Pakistan, even within the NPT context (although some NAM countries did express consternation at the May 1998 nuclear tests and formulation of nuclear doctrines). Many NAM countries do not participate in decisions, and among those who do there are significantly different and sometimes conflicting approaches, ranging from the Myanmar/Burma tradition of calling for a time-bound framework for nuclear disarmament to the more pragmatic approach of Chile and South Africa. In 1995, the NAM were fragmented and ineffective, and several commentators predicted the group's collapse. They were also late in coordinating their positions for the First PrepCom, but since then – in part due to the leadership of South Africa, which assumed the Presidency of the NAM in 1997 – NAM participation in the review process has proved to be more coherent and prepared than that of the Western group.

In addition to the problems with the formal groupings, a number of other, 'like-minded' groups are growing in influence. Some have a regional focus, such as the European Union, the Group of Arab States or the Association of Small Island States (AOSIS). Others, like the New Agenda Coalition, are issue-based. At the Third PrepCom, the New Agenda Coalition gathered the support of nearly a quarter of the NPT's parties for its working paper, ensuring that they would have to be taken seriously in their calls for an unequivocal commitment to the full implementation of the Article VI obligation on nuclear disarmament and for a subsidiary body to consider the practical steps to further progress towards eliminating nuclear weapons.

As the Cold War groupings diminish in relevance and like-minded groups grow, some consideration will need to be given to how such groups can be represented more effectively and democratically in the mechanisms established for exchanging information and managing decisions, including the Bureau, General Committee, and, importantly, the President's consultations.

Voting and consensus

The First PrepCom applied the rules of procedure from the 1995 Conference, which with a couple of important amendments were adopted by the Third PrepCom for the 2000 Conference. Rules 28-30 govern voting. Every state party has an equal vote, with the provision that "decisions on matters of procedure and in elections shall be taken by a majority of representatives present and voting". The intention is that "every effort should be made to reach agreement on substantive matters by means of consensus" with voting as a fallback if "all efforts to achieve consensus have been exhausted". The rules then describe the procedures to be followed in the event of a vote having to be taken.

In 1995 there were deep divisions regarding aspects of the voting procedure which were not set out in the rules, such as whether ballots should be open or secret. The rules state only that elections should be held by secret ballot. The non-aligned delegations in 1995 wanted a secret ballot also for the extension decision, whereas the United States and others argued for open voting, as is the practice in most UN meetings, including the General Assembly. This dispute was never resolved, and the desire to avoid forcing the issue contributed to the support for Dhanapala's device of obtaining consensus that a majority existed for the extension decision. Previous review conferences and, more recently the 1998 PrepCom preferred to close without agreement when consensus was lacking, rather than embark on taking votes. While the same approach may well be taken in 2000, if the non-nuclear weapon states become frustrated by stonewalling from the NWS or the threat of a return to a minimalist approach to reviewing the Treaty, calls for voting on particular issues cannot be discounted.

Executive Council

The NPT was not set up with an implementing organisation, such as the Organisation for the Prohibition of Chemical Weapons (OPCW) or the CTBTO. As pointed out by Jayantha Dhanapala, the President of the 1995 NPT Conference, and now Under Secretary-General of the United Nations, in charge of the Department for Disarmament Affairs, the IAEA existed before the NPT; while suited to perform the functions outlined in Articles III and IV, the IAEA was not constituted or empowered to oversee other important aspects of the Treaty. Dhanapala proposed that NPT parties "consider the possibility of electing a governing council for the NPT to act as an ombudsman to receive complaints about non-compliance and difficulties which States Parties may be experiencing in the Treaty regime". He recommended that the 2000 Review Conference should consider electing a body comparable to the Executive Councils in the OPCW and CTBTO, which would oversee implementation and compliance and could "make recommendations to the general membership and, if necessary, to the Security Council". Noting that "there is a grave danger that persistent suspicions without verifiable proof to substantiate them and to justify the withholding of NPT benefits may drive some States out of the NPT regime instead of keeping them within it and under the constraints of international law", Dhanapala argued that setting up an Executive Council would not require an amendment to the Treaty, and that it would help to strengthen the regime and provide a more even-handed approach to problems within the Treaty, including allegations of non-compliance.(8) The Tokyo Forum recommended something similar, calling for "a permanent secretariat and consultative commission" to deal with questions of compliance and to consider strengthening measures for the Treaty.(9)

Non-governmental Organisations

Over 700 representatives of 195 non-governmental organisations (NGO), research institutes and interested groups attended the NPT Review and Extension Conference in 1995. More than a hundred NGOs attended part or all of the three PrepComs in New York and Geneva. While a few NGOs represented the nuclear industry or regional interests, the vast majority opposed nuclear weapons, with a significant majority also critical of nuclear power.

During 1995, NGOs were permitted to observe the Conference plenaries and the initial few days of each of the Main Committees, until the Main Committee Chair decided (often at the request of one of the governments) that proceedings had become too sensitive for public ears. To the dismay of NGOs, however, Patokallio set the precedent in 1997 for the PrepComs to exclude NGOs and press from all the cluster debates. This was taken to a ludicrous extreme at the 1999 PrepCom when NGOs were barred from observing the meeting for all but the first day and about five minutes at the end of the final day, kept out of the conference room even when the PrepCom report was being considered and adopted. On the other hand, two useful precedents were put in place during the review process: at the first PrepCom, Patokallio established an informal session at which NGOs could address the NPT delegations on a range of Treaty-related subjects; and at the third PrepCom, in addition to the informal session for NGO statements, Reyes initiated a 'round-table' between NGOs and government representatives, which took place in the margins of the meeting, but was attended by around 20 NGOs and representatives from some 15 delegations, including the ambassadors of France and Britain.

NGOs have far fewer rights of access and participation in disarmament fora than in comparable meetings under the UN system, such as human rights, despite (or perhaps because of) civil society's consistent interest and concern regarding the non-proliferation of weapons of mass destruction, disarmament, environmental safety and international security. A number of NGOs have made considerable contributions to discussions, ideas and planning, also engaging in informal information exchange with their governments and in New York and Geneva. From shaky beginnings, the informal NGO sessions established during the PrepComs are now fairly well attended by delegations, many of whom have expressed support for greater NGO participation and interest in the ideas and expertise put forward by the NGOs. NGO statements and materials have encompassed the full range of NGO-related issues: universality; steps towards further deep cuts and nuclear reductions and measures to delegitimise nuclear weapons and reduce their salience in military postures; the abolition of nuclear weapons, including approaches to achieve a nuclear weapon convention; regional security; NWFZ; safety controls; nuclear production, testing and modernisation; weapons-usable nuclear materials, nuclear energy and waste; and the health and environmental impact of nuclear policies, especially on indigenous peoples.

It is to be expected that NGOs will be out in force again at the 2000 Review Conference, although probably not in as large numbers as in 1995. Civil society has played a crucial role in bringing about the CTBT and in supporting the NPT and related measures. The continued interest from NGOs will be vital in ensuring support, accountability and implementation of the NPT, thereby contributing to its credibility and effectiveness. It is high time that NGOs concerned about international security and disarmament were granted the same rights of access, address and participation as those working on human rights. A number of NPT delegations had been surprised that NGOs were entirely excluded from the cluster debates during the PrepComs and from consideration of the final agreements. There is growing support for establishing more open norms for NGO participation in disarmament fora, consistent with the quality of expertise and the constructive work of NGOs on behalf of nuclear non-proliferation and disarmament, but there are notable opponents, particularly among the nuclear weapon states.

The 2000 Review Conference should at the very least establish one or two plenary sessions for NGOs and civil society representatives to address the States Parties. In addition, it might be useful for NGOs to address the Main Committees early on, with more specific arguments and proposals relevant to their subject matter. Regardless of whether a session will have summary records, appropriately registered NGOs and press should be automatically permitted to observe all plenary and Main Committee sessions unless the President or Chair requests them to leave. Upon receiving the request from the Chair, the NGOs, for their part, should undertake to depart from a session quickly and without fuss. However, the presumption should be access rather than exclusion, with NGOs not asked to leave when national positions and statements are being made, but only when negotiations are deemed sensitive. In view of the enormous difficulties experienced by NGOs in obtaining documents from NPT meetings, despite the best efforts of the Secretariat, it should be agreed that registered NGOs and press have a right to receive copies of all statements that are circulated on the floor in plenary and Main Committee sessions and copies of all Conference documents and working papers on the same day as they are received by Conference delegates. In addition, NGOs should be permitted to make their publications available to Conference delegates throughout the NPT meetings on a table near the entrance to the relevant meeting rooms (this practice has been the case for the past few meetings, but needs to be established as a right, not a discretionary privilege). States parties to the NPT are representing their peoples. Civil society, largely in the shape of NGOs, is an important partner in international democracy and security-building. It is not acceptable for NGOs to be systematically excluded from the major dealings of States on these important human issues, as has been the norm with past NPT conferences.

Notes

(1)See Jayantha Dhanapala, 'The NPT Review Process: Identifying New Ideas to Strengthen the Regime' in The Enhanced Review Process: Towards 2000, UNIDIR Newsletter 37, United Nations, 1998, pp 9-14.

(2)Thérèse Delpech, 'The Nuclear Weapon States and the 1998 PrepCom' in UNIDIR 37, op.cit. pp 24-26.

(3)Mark Moher, Permanent Representative of Canada to the Conference on Disarmament, to the first PrepCom of the 2000 Review Conference, New York, April 8, 1997.

(4)Rebecca Johnson, ACRONYM 7, op. cit.

(5)John Simpson, Process and Mechanisms for Making the Enhanced Review Process Work, in UNIDIR 37, op.cit. pp 14-18.

(6)Joint Ministerial Declaration by Brazil, Egypt, Ireland, Mexico, New Zealand, Slovenia, South Africa and Sweden, entitled 'A Nuclear-Weapons-Free World: the Need for a New Agenda', published 9 June 1998. Since then, seven of the countries (Slovenia was forced by US pressure to withdraw in October 1998) have put forward common positions at several fora, including the 1999 PrepCom, and are known as the 'New Agenda Coalition'.

(7)From R. Johnson, NPT Briefing 6, The Acronym Institute, May 17, 1999. The quotations are taken from statements made to the Third NPT PrepCom. (8)Dhanapala, op. cit. UNIDIR 37, p 11.

(9)Key Recommendations #1, 'Facing Nuclear Dangers: an action plan for the 21st century', The Report of the Tokyo Forum for Nuclear Non-Proliferation and Disarmament, Tokyo, July 25, 1999, p55

© 2000 The Acronym Institute.

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