Published by the Nonproliferation Policy Education Center
June 1, 2009
by Christopher Ford
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In diplomatic circles associated with the Nuclear Nonproliferation Treaty, it is today widely believed that Article IV of the Treaty unquestionably protects non-nuclear weapons states' "inalienable right" to any sort of nuclear technology they wish, short of actual nuclear weapons, provided that it is subjected to IAEA safeguards and used only for "peaceful" purposes. This belief, however, is false. The text of Article IV, itself, does not preclude that interpretation, but such a rightsprivileging reading is in no way required either by the text or the negotiating history of the NPT, and is in fact inconsistent with this history and with the structure of the Treaty.
The meaning of the Treaty's peaceful use provisions has been debated for many years between (a) those who advocate per se technology-access rights and (b) those who read the NPT as reflecting a strong commitment to sharing nuclear benefits but as treating specific claims to technology access as policy questions to be determined on a case-by-case basis, informed by considerations such as the ability of safeguards to provide timely warning of misuse. Of these two camps, the latter, "safeguardability" school offers the stronger argument.
The policy-focused, benefits-sharing approach of "safeguardability" theorists is not only more consistent with the Treaty's text and negotiating history, but also quite consonant with longstanding themes in the international community's struggle with nuclear technology issues since the dawn of the nuclear age. By contrast, theories of per se access rights would require concluding, against the evidence, that these longstanding themes were suddenly and utterly repudiated during the NPT's drafting. Worse, per se access rights would turn Article IV into a mechanism for undermining the rest of the Treaty by facilitating the spread of the (fissile material production) technologies that are critical to making nuclear weapons. This is not merely unwise and untenable as a matter of public policy; it is, in fact, an inferior answer as a matter of legal interpretation. The "safeguardability" approach, however, reconciles the text of Article IV with the rest of the Treaty, with its negotiating record, and with longstanding international approaches to nuclear technology. While both views of Article IV may be "legally available," the policy-privileging "safeguardability" interpretation is far superior, both substantively and legally.
Significant consequences follow from properly understanding "safeguardability" as the best framework for understanding nuclear technology "rights" under the peaceful use provisions of the NPT. First, IAEA nuclear safeguards must be the focus of great attention and detailed study, particularly with regard to their ability to provide warning of misuse sufficient to permit the international community to mount an effective response. This factor is critical, for upon considerations of effective safeguardability will hinge whether claimants in fact possess the "right" to nuclear "benefits" in any particular technological form. Second, the international community must develop a rational and defensible standard for assessing the real economic and developmental benefit offered by nuclear technologies – not merely in their own right but also vis-à-vis non-nuclear alternatives – in order to make possible the exercise of informed policy judgment in assessing the form in which "benefit"-sharing should take.
Christopher A. Ford was formerly Senior Fellow and Director of the Center for Technology and Global Security at Hudson Institute.
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