Disarmament DiplomacyIssue No. 79, April/May 2005
The Fissban: Time for Renewed Commitment or a New Approach?
Jean du Preez
The United States' announcement in July 2004 that it has concluded that it was "not realistically possible to verify the treaty in any meaningful way" and that "effective verification of an FMCT would require an inspection regime so extensive that it could compromise key signatories' core national security interests and so costly that many countries will be hesitant to accept it", is widely considered to be a serious - potentially fatal - blow to the achievement of one of the longest standing nonproliferation and nuclear disarmament objectives. It essentially rejects the Shannon Mandate adopted by consensus in the Conference on Disarmament (CD) in 1995, which provided for negotiations on a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices (known variously as a fissile materials cutoff treaty (FMCT), fissban or fissile materials treaty).
At the same time, recent proliferation challenges have increased interest in the dangers posed by weapons-usable nuclear materials that can be produced by means of the civilian fuel cycle, including uranium enrichment and reprocessing. Since the current mandate excludes civilian nuclear materials, future consideration of any fissban is likely to be influenced by the current debate on how to deal with sensitive parts of the civilian nuclear fuel cycle.
The new US position, the result of an interagency review in 2003, stands in stark contrast to US positions during the 1990s, most notably President Clinton's 1993 General Assembly proposal,  that strongly promoted an international and verifiable accord. The US vote (supported only by Palau) against Canada's overwhelmingly-supported FMCT resolution in the 2004 General Assembly opened the door for at least two other CD members to put into question the Shannon Mandate as well, as Israel and the United Kingdom abstained. Pakistan voted in favour of the 2004 GA resolution on the FMCT, though some analysts believe that would prefer as much delay as possible, to enable it to produce enough materials to be in a more favourable position vis-à-vis India. Although the overwhelming majority of UN members voted in favour of the resolution in support of the original Shannon mandate, the new US position compounds the eight year long deadlock in the CD, further placing in jeopardy its relevance as a negotiating body. The US policy also complicates chances to achieve success at the 2005 Review Conference of the Nuclear Non-proliferation Treaty (NPT) since many non-nuclear-weapon States (NNWS) are likely to argue that this is yet another example of how the nuclear-weapon States (NWS) are ignoring their disarmament obligations while pushing for further restrictions on access to peaceful nuclear technologies.
Nevertheless, the US position came as no surprise. When President Bush proposed last February that the production capability of civilian fissile material should be limited to the nations already possessing such capacities, he made no mention of the long aspired US goal to ban the production of weapons-usable material. Similarly, the US delegation to the April 2004 Preparatory Committee (PrepCom) for the 2005 NPT Review Conference did not refer to the treaty at all, despite the fact that the consensus agreement in support of a "non-discriminatory, multilateral and internationally verifiable treaty" reflected in both the 1995 Principles and Objectives for Nuclear Non-Proliferation and Disarmament, played a central role in achieving agreement on the indefinite extension of the Treaty in 1995, and was reiterated in the Final Document of the 2000 Review Conference. Instead, the US was at the forefront of efforts to marginalise reference to the outcome of the 2000 Review Conference in the agenda for the 2005 Conference.
Given the US Senate's rejection of the CTBT in 1999, justified with doubts about its verification, the issue of verifiability has been revived, either as a genuine concern or, more probably, as a tool to undermine arms control treaties. The Bush administration's close strategic ties with India and Pakistan in the war against international terrorism may have also changed its thinking on one of the important objectives of the FMCT - to stop a nuclear arms race in South Asia. Although the United States has not openly acknowledged these countries as "nuclear weapons states", there seems to be a clear acceptance that neither will be willing to give up its nuclear weapons in the foreseeable future. The key objective for the United States has thus shifted from preventing these states from acquiring nuclear weapons, to preventing them from proliferating nuclear technology to other states and non-state actors such as terrorists. If so, the narrowly defined FMCT would no longer be seen as very relevant in addressing the spread of fissile materials to rogue states and terrorist groups.
Background to the Shannon Mandate
A ban on the production of fissile materials for nuclear weapons was on the international security agenda even before the NPT was conceived. In 1946, the United States submitted to the UN Atomic Energy Commission the Baruch Plan, proposing the creation of an International Atomic Development Authority that would be entrusted with "managerial control or ownership of all atomic energy activities potentially dangerous to world security." President Eisenhower's "Atoms for Peace" Speech in 1953 further developed this idea, hinting at a ban on fissile material production by stating that "(t)he United States would seek more than the mere reduction or elimination of atomic materials for military purposes" . US studies conducted at Hanford and Oak Ridge during the 1950s also investigated the possibility of a "cessation of production" of fissile materials. During the 1960s, when the negotiations for the NPT were in progress, a ban on the production of fissile materials for military purposes was included in a group of nonproliferation and arms control measures - together with a comprehensive test ban treaty, reductions in the nuclear arsenals of the nuclear-weapon powers, and the international management, control, and storage of plutonium. A June 1964 US working paper to the Eighteen Nation Committee on Disarmament described "the inspection of nuclear powers under a cutoff of fissionable material for use in weapons". The US then maintained that "inspection of a nuclear power should provide a high degree of assurance that no violation could take place that would result in a significant increase in its existing stockpile of material available for use in weapons." The same working paper contained detailed inspection provisions for a verifiable cut-off treaty.
Although not directly addressed in the articles of the NPT, clear reference to the "cessation of the manufacture of nuclear weapons, the liquidation of all (their) existing stockpiles, and the elimination from national arsenals of nuclear weapons and their means of delivery" is made in the preamble to the treaty. Expressed as a "desire", this preambular reference is further emphasized in Article VI which requires State parties to undertake "negotiations in good faith on effective measures to cessation of the nuclear arms race at an early date and to nuclear disarmament". In achieving the goals of the NPT, the original drafters had the foresight to envisage that control over nuclear weapons materials and the cessation of their production for weapons purposes could lead to a quantitative capping of the number of weapons in existence and to laying the foundation for their eventual elimination.
With the end of the Cold War, President Bill Clinton gave impetus to the cutoff demand by declaring in his 1993 speech to the UN General Assembly that: "We will pursue new steps to control the materials for nuclear weapons. Growing global stockpiles of plutonium and highly enriched uranium are raising the danger of nuclear terrorism in all nations. We will press for international agreement that would ban production of these materials for ever." The same General Assembly for the first time adopted a consensus resolution entitled "Prohibition of the production of fissile materials for nuclear weapons or other nuclear explosive devices", which recommended "the negotiation in the most appropriate international forum of a non-discriminatory multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices." The 1993 General Assembly envisaged the treaty as covering the production of weapon-grade plutonium (plutonium containing more than 93 per cent of the isotope plutonium-239), weapon-grade highly-enriched uranium (uranium enriched to over 90 per cent uranium-235), and uranium-233 for nuclear weapons or other nuclear explosive devices, as well as production outside the international safeguards system. The General Assembly also requested the IAEA to provide assistance for examination of verification arrangements for such a treaty, but it did not specify the Agency's role. Although previous UN resolutions referred to the "production and stockpiling" of fissile materials, the 1993 resolution dropped reference to stockpiles in order to gain consensus. Nevertheless, while not specifically addressing existing stocks of fissile materials, the resolution described the treaty banning production as "a significant contribution to nuclear non-proliferation in all its aspects".
Heeding the General Assembly's call, the CD in 1994 appointed Canadian Ambassador Gerald Shannon as Special Co-coordinator to "seek the views of its members on the most appropriate arrangement to negotiate" a FMCT. When the CD adopted the Shannon report in March 1995, it agreed to establish an ad hoc Committee "to negotiate a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices." Although basing the core negotiating mandate for the ad hoc Committee on the 1993 General Assembly resolution, Shannon's Report also stated that this did not preclude any delegation from raising the issues of scope and verification within the Committee. It is noteworthy that some delegations - NPT NWS and India - supported a mandate that would only permit consideration of future production of fissile material, while many countries argued that the mandate should also include consideration of past production. Another group of states wanted the treaty to relate not only to production of fissile materials (past or future), but also to other issues, such as the management of such material. Several delegations, most notably Egypt, Iran, Pakistan and Algeria, insisted on the inclusion of existing stockpiles in the negotiation mandate. The language in the Shannon Report reflected this diversity of views among CD members, and its 'permission' to raise wider issues was viewed as necessary to get consensus on the mandate in time for the 1995 NPT Review and Extension Conference.
In turn, the agreement to negotiate the FMCT played an important role in the push for indefinite extension of the NPT. Led by the United States, an intensive campaign was waged among key NNWS; central to its success were arguments that linked achieving a CTBT and the reduction of nuclear warheads under the START I and II treaties, and the FMCT to the indefinite extension of the NPT. The package of integral decisions adopted at the 1995 Conference, thus provided a way for all states parties to support the indefinite decision while providing for the ways and means through which progress toward achieving nuclear disarmament and nonproliferation could be achieved. A key element of this package was the "Principle and Objectives for Nuclear Non-proliferation and Disarmament" which explicitly included a call for the "immediate commencement and early conclusion of negotiations" of a FMCT in accordance with the Shannon mandate.
Since then, however, negotiations on a fissban have been held hostage to other issues in the CD, including wider issues of nuclear disarmament and negotiations on a treaty to ban an arms race in outer space, negotiations on a fissile material treaty has since been held hostage. The success of the much heralded 2000 NPT Review Conference was largely hooked onto the unequivocal undertaking by the NWS to accomplish the total elimination of their nuclear arsenals as part of thirteen practical steps for the systematic and progressive efforts to implement Article VI. A key component of these practical steps was the agreement on the necessity of negotiations in the CD on a "non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other explosive devices in accordance with the Shannon Mandate. The 2000 agreement is significant since it solidified the 1995 agreement to immediately start negotiations on the FMCT, and that such negotiations should to take into consideration both nuclear disarmament and nuclear non-proliferation objectives. However, this agreement was also inherently flawed in that it required negotiations to commence in the context of an agreed program of work in the CD. This agreement is a prime example of the consequences of flawed compromises for the sake of consensus and expediency.
Is a basic Cutoff Treaty still relevant?
Measured against both the originals goals of the NPT and the post September 11 security goals exemplified by UNSC resolution 1540, a fissban will only be relevant if it aims to prevent the production, sale, use and transportation of weapons-usable nuclear material, and to close this path permanently to nuclear armaments, proliferation and terrorism. Given the lapse of time since the Shannon Mandate was agreed, it may be appropriate to investigate whether the original mandate for negotiating a fissile material ban treaty need to be revised. In so doing it would be useful to identify and analyze viable alternative options, including its scope and effective ways to verify the implementation of the treaty in a non-discriminatory way. Given the growing risks of nuclear terrorism, and the potential threats posed by radiological weapons, a related question - albeit controversial - is whether the world would be better off with no production of separated plutonium or highly-enriched uranium, while progressively eliminating existing stockpiles.
Depending on its approach, a fissban today would affect individual states differently due to variance in nuclear fuel cycles and inventories of fissile material. States also have different views on the objectives of such a treaty. Differences over the scope and verification of the future treaty remain central in these views.
The scope of the future treaty remains one of the most challenging issues. Positions are probably now more divided than they were in 1998. Differences over the scope of the future relate to how to define fissile material and whether to include past production.
Defining fissile material for nuclear explosive devices
Fissile material for weapons purposes is commonly understood to be highly enriched uranium (HEU) and plutonium (Pu), although certain other transuranic elements are also used in the production of nuclear weapons. However, misunderstandings may arise, since from a technical perspective "fissile material" has different definitions. For fissban purposes, a common understanding will have to be agreed upon. A further complicating factor is that "fissile material" is also associated with materials chain-reacting with slow neutrons, i.e. materials used in power reactors. However, the term includes weapons materials because materials which chain-react with slow neutrons also do so with fast neutrons. In using the word "fissile" in any treaty intended solely to halt the production of fissile material for nuclear explosive uses there needs to be a clear distinction to ensure that a ban on production for nuclear weapons purposes would not also encompass the production of commercial reactor fuel or other uses. Whereas it is accepted that it would be difficult, if not impossible, to change the name of the prospective treaty at this stage, "fissile material" should be defined as addressing nuclear materials that can be made to chain react for the purpose of a nuclear weapon.
Although no agreement exists to include fissile materials for peaceful purposes, HEU for naval fuel reactors, tritium and other transuranic elements, consideration of these elements are likely to influence the negotiations of a fissban:
i. Civilian plutonium reprocessing and uranium enrichment:
Given the "new" proliferation threats arising from the misuse by some states of the NPT's "inalienable right" to peaceful uses of nuclear energy and the dangers that fissile material could fall in the hands of terrorists, some critics of civilian plutonium separation and uranium enrichment have proposed to ban commercial reprocessing and enrichment as part of a global fissile materials ban, while others are suggesting a more moderate approach of imposing a phased-in moratorium on reprocessing and recycling plutonium. In light of the emphasis placed on the proposals to limit access to the nuclear fuel cycle or to institute multilateral control over the sensitive parts of the nuclear fuel cycle - as proposed by President Bush and IAEA Director-General Elbaradei respectively - some consider it an attractive option to include civilian production (and stocks) under one global instrument related to fissile material. However, given the large commercial investments and interests in continuing civilian reprocessing as well as enrichment in some countries, including several NNWS, the inclusion of civilian nuclear programmes into the scope of a treaty would likely lead to a fatal deadlock in negotiations of the treaty.
Tritium is neither a fissile material nor a nuclear material, but its strategic significance in nuclear weapons design would require consideration of whether to include it in a future treaty or not. Although it is all but inconceivable that the NWS would give up the use of tritium for warheads - since this would require new warhead designs - a case can be made in favour of tritium control as a qualitative disarmament measure. For a fissban to be non-discriminatory, it can be argued that there should be reciprocal measures with equivalent impact, especially on the NWS and on the de facto nuclear weapon possessors. A ban on tritium production in the NWS, paired with bans on HEU and plutonium production, would allow a balance between nonproliferation measures addressed to the de-facto nuclear weapon possessors and disarmament measures addressed to the NWS. Whatever its potential merits, however, it seems very unlikely that the NWS would accept this approach. NNWS are also likely to argue that efforts to include tritium in a future treaty would divert attention and efforts from the important issue of existing stocks of weapons grade HEU and plutonium, which they want to address without further delay. The need for tritium in weapons will, in practice, only disappear once nuclear disarmament undertakings are pursued in earnest. Until then, acceptance of a tritium production ban seems remote for both the NNWS and the NWS.
iii. Other Transuranic Elements
The IAEA has in recent years identified the proliferation potential of neptunium (Np) and americium (Am). Np is suitable for making a nuclear explosive device (even a relatively simple gun-type device), so it should logically be covered by a fissban. With regard to Am, opinions differ on whether it could credibly be used for weapons purposes due to its physical (not nuclear) characteristics.
iv. Naval Reactors
The continued use of weapons usable fissile materials in naval military reactors will require special consideration under any future accord. Part of the original bargain when the NPT was crafted was to leave a number of nuclear activities in the category of acceptable uses so as to satisfy the concerns of many NNWS who wished to maintain the widest possible options in return for giving up their right to nuclear weapons. In addition to the "inalienable right" to develop research, production and use of nuclear energy for peaceful purposes, other "allowed" uses included so-called "peaceful nuclear explosions" (PNEs) and the operation of naval propulsion reactors (NPRs) for commercial shipping. PNEs have now been rejected under the CTBT, but naval propulsion creates a potentially dangerous loophole as a possible source of fissile material for explosive or other non-peaceful purposes.
While it is possible to design naval reactors that do not rely on weapon-usable enriched uranium, there is little enthusiasm for converting existing HEU naval propulsion reactors to run on LEU fuel, especially for submarines. Resistance to restrictions will therefore continue as long as naval vessels using these reactors exist. Given the increase in technological capabilities among states other than the NWS, and the prestige and tactical advantage associated with nuclear propelled submarines, ownership of this technology will likely expand beyond the states with nuclear weapons. There are currently approximately 170 nuclear propelled vessels at sea: some 150 are submarines, 135 of which are owned by the United States or Russia, with the remaining 35 in the navies of China, the United Kingdom and France). Both the United States and the United Kingdom use weapons-grade HEU as fuel, while Russia uses a lower-enriched uranium for its submarines and up to 90% enriched uranium for its icebreaker fleet. France uses both LEU and HEU for its existing submarines (depending on the type), but future designs will uses only LEU. China's submarines are reportedly powered by LEU reactors.
Concerns over whether or not to include the production of weapons grade material in naval reactors are not limited only to the NPT nuclear weapons States. India - not covered by the IAEA comprehensive safeguards agreement - is also trying to develop an indigenous nuclear submarine fleet and reports suggest that it might be able to do so by 2010. Reports regarding Brazil's earlier concerns over the Additional Protocol and that it reportedly refused to allow IAEA inspectors to examine an enrichment facility under construction at Resende near Rio de Janeiro further highlighted this weakness in the NPT safeguards system which would allow production and use of HEU for non-explosive purposes. Brazil has, however, since entered into negotiations with the IAEA on the Additional Protocol, and allowed IAEA inspectors access to its enrichment facilities, including those controlled by the Brazilian Navy.
The obvious conclusion is that military naval reactors should be included under a fissban. There is, however no common view to this end. Agreement on verification measures needed to include propulsion reactor fuel in a fissban would be difficult - some would say impossible - to achieve. However, if HEU for naval propulsion remains unsafeguarded, any fissban would contain a significant and dangerous loophole, enabling such materials to be diverted for explosive purposes. One possible solution would be to place naval propulsion fuel under international safeguards. This would require a change in the existing INFCIRC/153 safeguards, which allows withdrawal of materials for non-explosive purposes from safeguards. Exempting naval reactors from Additional Protocol (INFCIRC/540) safeguards would not enable the IAEA to provide an assurance of absence of undeclared nuclear material/activities - the main purpose of the Additional Protocol. A decision by NPT State parties to require the Additional Protocol as the standard of compliance under the NPT should capture naval propulsion fuel as well as facilities to enrich and process such material. Problematically for many, however, such a standard would only be applicable to NNWS.
The inclusion of past production, in particular excess stocks
Although general agreement exists on the need to deal with future production of HEU and plutonium for weapons purposes, the diplomatic debate over scope mostly concerns whether to include past production. It is estimated that globally between 1200 and 2000 tons of fissile materials are kept in stockpiles, including some 50 tons of civilian HEU and 240 tons of Pu. This figure does not include weapons grade material declared as excess. Depending on the weapon design and size, it is estimated that the equivalent number of warheads that could be produced from this material would exceed 50,000. It is further estimated that as of July 2004, some 700 tons of weapons grade material or the equivalent of an additional 25,000 warheads were declared as excess, mainly by the United States and Russia.
Given that all nuclear materials and facilities in the NNWS are already subject to full-scope safeguards, it is the NWS and the de facto nuclear weapon possessors that will be affected by the inclusion of existing stocks. Those in favour of including existing stocks argue that such a treaty should
(a) have a nuclear disarmament objective as provided for under Article VI of the NPT, particularly in terms of transparency, accountability, and irreversibility;
(b) further strengthen nonproliferation by preventing the transfer of existing materials from the NWS or de facto nuclear weapons possessors to any NNWS;
(c) be "non-discriminatory" and equalise the safeguards burden between NWS and NNWS;
(d) solve the question of asymmetric stocks in South Asia and the Middle East;
(e) avoid a loophole for declaring military fissile material produced after treaty's entry into force as past stocks; and
(f) prevent those materials from falling into the hands of terrorists.
Those (mostly the NPT NWS) who are against inclusion of existing stocks point to the technical difficulties of accounting for all historical stocks, and argue that focusing on future production is the only practical option. They also raise questions about the cost and verification implications of making the scope wider, giving rise to concerns that the inclusion of stocks would likely make NWS support for a treaty difficult, thereby complicating and prolonging negotiations. Moreover, if past production of weapons grade material is to be included in "fissile material stocks", a wholly accurate, full/complete declaration of such stocks may not be feasible, politically or practically, though this problem could probably be solved with transparency and confidence-building measures, as have been developed in conjunction with the cooperative threat reduction (CTR) approaches. Another politically problematic argument is that including existing stocks - even just declaring existing military stockpiles - could recognise and codify the right to have such stocks, legitimating the nuclear status of those states outside the NPT.
Judging from the scope of undertakings by the United States and Russia in terms of the HEU Purchase Agreement and the Plutonium Management and Disposition Agreement , disposition of excess military stocks may be the furthest point the NWS can go at this stage. Thus, a fissban should, in addition to prohibiting future production, also aim at the safe, secure and irreversible disposal of excess military stocks. It should, however, not be unrealistically ambitious in trying to go beyond that. Furthermore, a fissile material ban should take account of the financial and technical problems faced by the United States and Russia in their own initiatives.
This touches on practical problems which were also experienced in the South African case. During the IAEA's "completeness investigation" in South Africa, the existence of a discrepancy could only be accepted on the strength of other supporting data (i.e. other than nuclear materials accounting), such as operational records, electricity consumption, reports on chemical losses, etc. Even though South Africa produced a relatively small quantity of HEU over a period of about years, the practical problem of giving an accurate production figure for tens and hundreds of tons of material produced over half a century presented significant practical problems. Declarations of nuclear material in weapons or directly associated with nuclear weapons, without the ability to verify the declaration, would not contribute to confidence building. A multilateral framework for disposition of stocks under a fissban needs to offer solutions rather than complicate problems, offering incentives to the NWS, especially the United States and Russia.
When considering whether to include existing stocks under the scope of a future treaty, the following major options should be considered:
The most extreme (and, at this time, unrealistic) option would require disposition of all existing military materials. Such a treaty would virtually serve as a comprehensive nuclear disarmament treaty, whose acceptance by NWS is impossible at this stage. Instead, a fissban could require that all existing stocks be subject to international safeguards, or at least require states parties to declare all those materials. To make NWS acceptance easier, such declarations could focus on aggregate stocks and not require details on the materials, which might contain sensitive military information. However, in terms of military requirements, technical difficulty, and cost implications, the NWS and threshold states are still likely to reject any attempt to include all military stockpiles.
Nuclear disarmament is a long-term process that requires a combination of unilateral, bilateral plurilateral and multilateral measures. If a fissban is to be judged on its own merit, even a treaty that only addresses future production would be a valuable step forwards. Thus, instead of addressing all military fissile materials, the treaty could target only those materials which the NWS are willing to have addressed. A better approach might be for a fissban to include weapons material which has been transferred from military use to peaceful nuclear activities (declared as excess) as a starting point. This excess material would be included in a starting inventory of such a state upon entry into force of the fissban (without an obligation to declare its "completeness and correctness" from a production point of view). It would be subject to the verification machinery provided for in the treaty. Further material declared as excess in the future would continuously be added to the starting inventory. Irreversibility is the key benefit of this option: the control over fissile materials would be steadily increased, serving both disarmament and nonproliferation objectives. This approach would, however, require an agreement that NWS and the de facto nuclear weapons possessors could keep appropriate quantities of materials by classifying them as "necessary for maintaining the stockpile." This exemption could itself become a complicating factor, since it would by implication recognise the right of non-NPT states to have such stocks, thereby potentially codifying or legitimating the nuclear status of those states.
With this option, a treaty will not address the issue of stocks immediately, but will spell out steps to be taken at a later stage for more substantial consideration. One way would be to include appropriate language in the preamble of a treaty referring to the possibility of future undertakings on stocks. Such language could range from a general recognition of the importance of the stocks issue to more specific exhortations or undertakings. In light of recent US resistance to verification, some would argue that a similar approach could be used to establish a verification system. The advantage of this 'evolutionary' option is that it would specify and reconfirm the international community's interests in getting a fissban. Critics of this option argue that it will allow the NWS and the de facto nuclear weapons possessors to buy time, and that there is no guarantee that any initiative will be actually taken unless there is consistent and strong political pressure on those countries. In addition, if existing stocks were left completely outside a treaty, the NNWS will likely continue to aspire to a new treaty that specifically aims to reduce, and eliminate existing nuclear-weapons-usable stockpiles. Given the NWS' sensitiveness to multilateral negotiations on nuclear disarmament, just agreeing on such a negotiating mandate would take a long time. Therefore, a situation should be avoided where a separate treaty on stocks needs to be negotiated on its own. A fissile material ban should at least be a starting point to deal with existing stocks in a multilateral framework. In other words, a cutoff treaty could serve as a transitional measure, whereby the NNWS can see genuine progress in the nuclear disarmament process, thereby making the NWS accountable to their undertakings.
If existing stocks cannot be dealt with in a treaty per se, the NPT NWS and the de facto nuclear weapon possessors could be urged to take confidence building measures or voluntary transparency measures. Through unilateral, bilateral and plurilateral initiatives, they could work on specific issues such as declarations of excess weapons materials and enhancement of physical protection of fissile materials, including stocks. As a first step, all the NPT NWS as well as the three de facto nuclear weapon possessors should implement and maintain moratoria on fissile material production. There are, however, drawbacks to this approach. Given its voluntary nature, there is no guarantee that any further measure would actually be taken. Moreover, the large amounts of military direct-use materials existent in those states would remain unsafeguarded.
Another possible way to reconcile the discrepancy between the NWS' perception of a fissban as purely a nonproliferation tool and the views of much of the rest of the world that it should also have a nuclear disarmament orientation, is to separate the two goals into different, but mutually reinforcing international efforts. Such a separation can ensure that the discrepancy in perceptions and intention will not hamper the entry into force of a cutoff as has been the case with the CTBT.
Under the Trilateral Initiative (a framework agreement between the United States, Russia and the IAEA for placing excess nuclear materials from dismantled weapons under a collective monitoring system), the two largest NWS and the IAEA have been working on a verification regime which would allow the IAEA to monitor excess materials removed from their nuclear arsenals. If implemented, this Initiative could become the first development of a concrete approach to international verification of nuclear disarmament. A model legal framework has already been agreed and is available to be used in new verification agreements between the IAEA and the two states. However, due to unresolved disagreements over costs, materials to be covered, and a terminating point of verification, the Initiative has not yet been put into practice.
The Trilateral Initiative should be expanded to include all NWS and de facto nuclear weapon possessors. As such, the expanded Initiative would:
(i) incorporate an inventory of excess weapons- usable material in a starting inventory upon entry into force of each state's participation;
(ii) include legally binding agreements between the IAEA and each state;
(iii) set a timetable for the inclusion of pre-existing stocks of fissile material; and
(iv) establish a source of funding, such as the G-8 Partnership Against the Spread of Weapons of Mass Destruction.
Similar to the Trilateral Initiative, the Cooperative Threat Reduction (CTR) is a framework through which the United States and others, such as the EU, lend financial and technical assistance to states of the Former Soviet Union to dismantle, destroy, and safeguard nuclear warheads and associated fissile material. In the context of fulfilling the objectives of a fissban, an expanded CTR could provide the financial means to not only secure weapon-grade fissile material from theft or diversion, but also reduce, and destroy stocks of such material in the states in which it is implemented, thereby serving both a nonproliferation and disarmament objective.
The establishment of the Global Threat Reduction Initiative (GTRI) in May 2004 is in effect an expansion of the CTR. The purpose of this Initiative is (a) to repatriate all Russian-origin fresh HEU fuel; (b) to implement agreed steps to accelerate and complete the repatriation of all US-origin research reactor spent fuel under existing US programs from locations around the world; (c) a worldwide push to convert the cores of civilian research reactors that currently use HEU to utilise low enriched uranium fuel instead; (d) to identify other nuclear and radiological materials and related equipment that are not yet covered by existing threat reduction efforts; and (e) to rapidly address the most vulnerable facilities first, to ensure that there are no gaps that would enable a terrorist to acquire these materials for malevolent purposes.
Although not included in these options, ways to address civilian materials, HEU for naval fuel reactors, and tritium need to be examined as well.
Credible and Nondiscriminatory Verification
Key to the success and future credibility and relevance of a fissban would be how to ensure that it is "effectively verifiable". Although verification would be a political challenge, "it is technically feasible to establish the means to effectively monitor and verify compliance with the treaty in order to detect and deter clandestine nuclear bomb production efforts". This longstanding conclusion by many leading technical experts in the United States and worldwide has now been challenged by the Bush administration's interagency review. In stark contrast with its previous positions, the United States now appears to believe that "even with extensive verification measures, we will not have high confidence in our ability to monitor compliance with an FMCT."
It is not yet clear what led the Bush administration to this conclusion. In an echo of the administration's position on the CTBT and the draft verification protocol to the Biological Weapons Convention (BWC), it seems that they have concluded that the intrusive inspections that would be required to uncover possible covert nuclear material production facilities would compromise the nuclear weapons programmes of the US (and perhaps also allies such as Israel). Since inspections under a verifiable treaty are likely to also include some form of challenge inspections, the administration may believe that such inspections could potentially also damage US commercial propriety interests. Given the administration's generally critical disposition towards verifiable international agreements, it may also have concluded that an intrusive inspection regime might not be able to provide the "high degree of assurance" it demands. Perhaps cost considerations also weighed in on this conclusion. An additional consideration may have been the administration's emphasis on a cutoff of civilian nuclear fuel cycles, with the aim of finding some kind of a compromise between a cutoff and a ban on further civilian production of weapons-usable fissile materials.
Whatever the outcome of the current debate over whether the treaty could be verifiable, any re-evaluation of the original negotiating mandate needs to consider whether verification should apply to all states, or only to states currently possessing nuclear weapons, including the three non-members of the NPT. Since the obligation not to produce nuclear weapons would be similar to the current full-scope safeguards in NNWS, the most effective approach would be to place the entire civilian fuel-cycle of NWS and the three non-NPT States under an agreed level of IAEA safeguards. The IAEA has consistently argued that from a technical perspective, the application of verification arrangements to anything other than a state's entire fuel cycle could not give the same level of assurance of non-production of fissile material for nuclear weapons purposes as is provided under the IAEA's comprehensive safeguards agreements with NNWS.
Even so, consideration needs to be given to whether a fissban verification system should closely resemble the current IAEA safeguards systems for NNWS, or whether a completely separate regime should be developed for NWS and NNWS respectively. Such an approach would have the advantage that it would reduce the discrimination that currently exists in the verification requirements imposed on the NWS and NNWS under the NPT and address complaints by some NNWS that their facilities are subject to more intrusive inspections than those of the NWS. For these very reasons, it would also be likely to be rejected by the NWS and de facto nuclear weapon possessors. Another option that could potentially be significantly cheaper would be to target only enrichment and reprocessing that could produce HEU or separated Pu, as well as tracking fissile material produced for civilian purposes after a fissban enters into force.
For a fissban verification system to be effective, it should include components
(i) to deal with facilities which had previously produced fissile material for nuclear explosive purposes;
(ii) suitably adapted to weapons-grade materials, declared as excess and placed under the supervision of the verification organization (preferably the IAEA) while this material is still in a sensitive geometrical and compositional form; and
(iii) to deal with materials once they have been re-worked into non-sensitive forms and for the production of materials for non-proscribed military uses allowed by the treaty. The latter will be similar to or the same as IAEA safeguards. While declarations of historical production could be seen as a political gesture of goodwill, the practical difficulties regarding completeness will need to be acknowledged. In addition, the production of tritium in civil power reactors for use in nuclear explosive devices and the production of nuclear material for naval reactors will require special consideration in a fissban verification system.
A fissban verification system should have as a basic requirement declarations within a specific timeframe of all material covered under the treaty upon its entry into force. The scope and any definitions or descriptions will of course be subject to negotiation, but some form of declarations will be necessary, and may need to result in appropriate safeguards under the IAEA or other designated organisation. To close the potential loophole of using naval propulsion reactors as fissile material sources for weapons, the treaty - while recognizing the right of states to produce and employ fissile material for non-explosive military applications - should require some form of declaration of existing stocks as well as future production. Given the highly secretive nature of naval fuels, appropriately specialised verification arrangements would undoubtedly be required.
Verification of each state party's obligations under a fissban should be based on a set of legally binding agreements. There are two alternatives for verification agreements: (i) expanding the NPT model, providing for bilateral agreements between each acceding state and the organisation, which may or may not be the IAEA as presently constituted; or (ii) multilaterally coordinated verification, along the lines of the CTBT. In addition to these variants, there is a further important choice for negotiators to make: whether all states should be subject to identical obligations in a nondiscriminatory way, but with some provisions modified or suspended to reflect the restrictions required in states with nuclear weapon programmes; or whether to establish a new approach, with selective verification and inspection powers. Though it may be necessary to discriminate between the safeguards required of nuclear weapon possessors and those imposed on the non-nuclear weapon states parties to the NPT, this is a sensitive issue particular with regard to non-NPT nuclear weapon possessors. Therefore, it will be important not to give the appearance of institutionalising another discriminatory condition that unnecessarily or counterproductively privileges states possessing nuclear weapons. A complimentary verification agreement specific to the treaty could set out obligations and responsibilities of each state and the IAEA for the exclusive purpose of verifying the fulfilment of its obligations under the treaty. In order to address concerns over discriminatory obligations, a possible option would be for the treaty to provide a mechanism by which a Conference of States Parties could take steps to bring about convergence over time with the nondiscriminatory goal of removing special safeguards provisions allowed for States with nuclear weapons.
Unlike in the case of the NPT, where the IAEA Board of Governors and ultimately the UN Security Council, are required to act on concerns over noncompliance, a more relevant and effective approach for a fissban would be to provide for a Conference of States Parties to have authority to consider any suspicions or cases of possible noncompliance. Such a Conference would offer opportunities to present the allegations and hear the responses of the suspected party (or parties). The Conference would liaise with and receive data or reports from the IAEA or other verification authority. It should have plenipotentiary powers to decide whether to refer allegations and evidence to the UN Security Council or to take other measures, such as appointing a special panel or judiciary to determine the merit of the allegations and the remedies to be effected.
Although the IAEA has the skills and abilities to take-up the responsibility for fissban verification, certain proliferation and resource constraints would have to be addressed. Even though a cutoff treaty would be targeted at constraining those few states that produce or possess fissile materials for weapons purposes, the cost of IAEA verification could mean a two to three fold increase in the Agency's safeguards budget because of the extended nuclear activities of these states and the need for more trained inspectors. If not handled carefully, this could create problems amongst the IAEA Member States. On the other hand, creating a new verification organisation may duplicate the IAEA's expertise and be even more costly. In this regard it is worth raising the question of whether the additional cost burden should be covered by only those states that produce fissile material for weapons purposes, or by all states parties based on the UN scale of assessments.
In any case, given the large quantities of new material and number of additional facilities to be covered it is unavoidable that the costs of IAEA safeguards implementation would have to be fundamentally reviewed. This can be done through (i) the legal rights that the IAEA always had but never exercised; (ii) new rights acquired by the Agency in terms of the Additional Protocol; and (iii) the use of new technological advances. The adoption of the Integrated Safeguards System under the umbrella of Strengthened Safeguards already provides for the reduction of traditional safeguards verification activities under certain conditions. This could be even further developed in view of the possible additional burden of the fissban, the main focus being on the verification of nuclear materials which are of real proliferation concern.
An alternative approach might be to contract the IAEA for its verification services, which would avoid the traditional problem of linkage between the Safeguards and Technical Cooperation budgets in the IAEA. Either way, however, to implement a fissban verification system effectively will require more inspectors than currently employed by the IAEA and could take several years to be established.
Conclusion and policy options
Despite US objections to the verification requirement in the original Shannon mandate, the conclusion of a "non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices" remains a very high priority for the vast majority of NPT states parties, including many close US allies, who view this treaty as a way to make progress on both nuclear nonproliferation and disarmament. A large group of influential states, including the New Agenda Coalition states and others such as Germany, Canada, Norway, Japan and the Netherlands - have become increasingly critical over the failure to pursue a fissban. In addition to the very critical position by the states parties belonging to the Non-Aligned movement (NAM), these concerns could prove to be a serious point of controversy - if not a deal-breaker - at the 2005 Review Conference.
For these states, an unverifiable treaty as envisaged by the United States would clearly be far less effective and do far less to strengthen the nonproliferation regime than a verified agreement. In addition, such a treaty will do nothing to contribute towards nuclear disarmament, as it will essentially only codify the existing moratoria by four of the five NPT NWS, and perhaps capture China, India, Pakistan and Israel. Moreover, India, Pakistan and possibly China are likely not to agree to a revised mandate that would prevent them from increasing their nuclear arsenals, while allowing the state with the largest nuclear weapons arsenal and stockpile of unused nuclear grade fissile material not to be subject to international verification.
The cutoff treaty objective has been a longstanding goal of the international community, in particular the United States. The deadlock in the CD resulted in many innovative initiatives in and around the multilateral system to promote these objectives through parallel dialogue and expert studies. All possible options for different kinds of fissban have been analysed by experts and several versions of draft treaties are available. Most states take the view that the 1995 Shannon report protects national positions concerning the scope and verification of a future treaty, giving all CD members the opportunity to put forward arguments and concrete proposals in relation to the treaty's scope and verification, ranging from maximalist to minimalist, and they believe the outcome should be determined through negotiations on these proposals rather than dictated by one or a few states before negotiations can even begin. The positions of delegations are well known and sufficient resource material is available to start serious negotiations. What is lacking is the political will by a few states. These states seem to believe that their interest would be at such risk if negotiations are started in the CD (or elsewhere), despite the protection provided by the consensus rule and a state's sovereign right not to sign any resulting treaty.
The US statements in the CD in July and August 2004 did not specify that the Shannon mandate no longer applies, but their voting in the General Assembly indicates that they are likely to block attempts to start negotiations without some revision to the negotiating mandate.
NPT states parties and members of the CD are faced with a difficult choice: to start negotiating a non-verifiable measure "far faster than would be the case with an FMCT that sought to achieve effective verifiability," or further delay negotiations in CD while considering other options or mandates. Instead of starting and concluding negotiations on an inherently flawed treaty for sake of expediency, this may the price to pay.
To make progress, members of the CD and NPT parties at the Review Conference need to be prepared to consider the following:
 Statement by Ambassador Jackie Sanders, US Representative to the Conference on Disarmament, July 29, 2004.
 The so-called "Shannon mandate" adopted by the Conference on Disarmament March 24, 1995 (CD/1299).
 US President Bill Clinton's September 27, 1993 address at the UN General Assembly.
 General Assembly resolution 59/81 "The Conference on Disarmament decision (CD/1547) of 11 August to establish, under item 1 of its agenda entitled "Cessation of nuclear arms race and nuclear disarmament", and ad hoc committee to negotiate, on the basis of the report of the Special Coordinator (CD/1299) and the mandate contained therein, a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices". UNGA 59/81 was adopted by 179-2-2 votes in the GA. See Rebecca Johnson's analysis in this issue of Disarmament Diplomacy.
 David Fischer "History of the International Atomic Energy Agency: The First Forty Years"
 President Dwight Eisenhower, 'Atoms for Peace' speech at the United Nations General Assembly on 8 December, 1953
 Working paper by the United States of America on inspection of a fissionable material cutoff (ENDC/134 of 25 June 1964).
 US President Bill Clinton's September 27, 1993 address at the UN General Assembly.
 "The achievement of the following measure(s) is important in the full realization and effective implementation of article VI, including the programme of action as reflected below: The completion by the Conference on Disarmament of the negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear-Test-Ban Treaty no later than 1996. Pending the entry into force of a Comprehensive Test-Ban Treaty, the nuclear-weapon States should exercise utmost restraint" (1995 Principles and Objectives, paragraph 4)
 "The necessity of negotiations in the Conference on Disarmament on a non-discriminatory, multilateral and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices in accordance with the statement of the Special Coordinator in 1995 and the mandate contained therein, taking into consideration both nuclear disarmament and nuclear non-proliferation objectives. The Conference on Disarmament is urged to agree on a programme of work which includes the immediate commencement of negotiations on such a treaty with a view to their conclusion within five years". (Article VI and preambular paragraphs 8-12, Para 15, sub-para 6, Final Document of the 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2000/28 (Vol 1, Part I and II), May 25, 2000.)
 Randy Rydell, "Fissile Nuclear Materials and the Future of Nuclear of Nuclear Disarmament and Non-Proliferation", in Conference on Nuclear Proliferation - Addendum (Athens, Greece: Ministry of Foreign Affairs, Centre for Policy Analysis and Planning, 30-31 May 2003), available at http://www.reachingcriticalwill.org/ legal/fmct.html.
 Frank Barnaby "The FMCT Handbook: A Guide to a Fissile Material Cut-off Treaty", Oxford Research Group, February 2003.
 It should be noted that although France, and supposedly China, have developed technology to operate naval propulsion based on LEU, other NWS, including the United States, have chosen not to go down this route. The United States and Russian have however, started to convert HEU research reactors to LEU. Nuclear Threat Initiative, "China's Nuclear Submarine Program" http://www.nti.org/db/china/wsubdat.htm#Fuel
 Slevin, Peter, "Brazil shielding uranium facility", Washington Post, 4 April 2004
 Larry Rohter, "Brazil Agrees to Inspection of Nuclear Site," New York Times, October 20, 2004
 Under the HEU Purchase Agreement, the United States pledged to purchase 500 tons of Russia's HEU recovered from nuclear weapons. The United States is blending down much of its own excess HEU. Although these HEU disposition programs are technically simple, they have faced significant financial obstacles. Regarding disposition of plutonium, which is far more difficult than disposition of HEU, the United States and Russia signed the Plutonium Management and Disposition Agreement in 2000. According to the Agreement, both countries must dispose of at least 34 metric tons of excess military plutonium. Although both countries agreed to begin disposition by the end of 2007, it seems that the first disposition would be delayed for several years due to high costs and implementation uncertainties. The IAEA has also not yet been approach to carry out the verification requirements under the agreement.
 Lewis A. Dunn, "A FMCT: Can We Get from Here to There?" Disarmament Forum, UNIDIR, 1999:2.
 Schaper, op. cit.
 Dunn, op. cit.
 See John Carlson, "Can a Fissile Material Cutoff Treaty be effectively verified?", Arms Control Today, January/February 2005
 Nuclear Threat Initiative, "IAEA Monitoring of Excess Nuclear Material", op. cit. http://www.nti.org/e_research/cnwm/monitoring/trilateral.asp (December 3 2003).
 Former science advisor to President Clinton, Dr Frank von Hippel quoted in an Arms Control Today press release, July 30, 2004.
 US Department of State, "Fissile Material Cut-Off Treaty Policy" July 2004. The original statement to the Conference on Disarmament was made by Ambassador Jackie W. Sanders on July 29, 2004.
 ENDC/134 of 25 June 1964.
 A group of seven states (Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden) who with the NWS negotiated the "13 practical steps" at the 2000 Review Conference.
 A particularly interesting article entitled "The Fissile Material Cut-Off Treaty: A Venue for Future progress in Arms Control, Non-Proliferation and the Prevention of Nuclear Terrorism", by Tom Shea from the IAEA also contains the text of a draft treaty.
 Statement to the First Committee of the 59th session of the UN General Assembly by Stephen G. Rademaker, US Assistant Secretary of State for Arms Control, October 8, 2004.
Jean du Preez, a former South African diplomat, is the Director for the International Organizations and Nonproliferation Program at the Monterey Institute's Center for Nonproliferation Studies.
© 2005 The Acronym Institute.