Verification and the Nuclear Non-Proliferation Treaty
Trevor Findlay
When considering verification of compliance with the nuclear Non-Proliferation Treaty (NPT) one is immediately confronted with an anomaly in the arms control and disarmament world. Verification in the NPT case is targeted almost exclusively at the states parties that do not have the banned weapons, in this case nuclear weapons, while largely ignoring the states that have them. By contrast, under the Chemical Weapons Convention, verification is applied universally and non-discriminately. In fact, it is more intensive for declared possessors of chemical weapons than declared non-possessors. Another oddity about the NPT is that the treaty parties do not directly deal with verification themselves, but have passed the sordid business (and then only part of it) to a pre-existing organization, the International Atomic Energy Agency (IAEA). The treaty itself has no dedicated body to verify compliance by all parties with all of their NPT obligations. Fiveyearly review conferences do not fulfil this purpose.
For these quirky reasons, much of the discussion of verification of the NPT turns on how to intensify the monitoring of the non-nuclear weapon states, as if that were the only verification challenge facing the treaty. It also tends to focus on compliance with every article except Article VI[1] – the very subject of this conference.
In this presentation I will avoid that tendency. I will say a few words about how to improve verification in respect of the non-nuclear weapon states, since clearly there are remaining difficulties there and the NPT is, after all, a series of grand bargains of which Article VI is only one part. But my overall focus will be verification and Article VI.
Verification and the Non-Nuclear Weapon States
There are several steps that can be taken in respect of the non-nuclear weapon states that would immediately and significantly enhance verification of compliance with the obligation not to acquire nuclear weapons.
The Additional Protocol
The single most important step would be for all non-nuclear weapon states to adopt and fully implement the Additional Protocol. This document, appended to their existing comprehensive nuclear safeguards agreements, increases the verification powers of the IAEA and expands transparency and verifiability in respect of the whole peaceful nuclear fuel cycle – from uranium mining to waste management and disposal. It permits the Agency to certify more states for integrated safeguards, which lessens the verification burden on qualifying states, the ‘serial compliers’, while at least maintaining, but more desirably improving, verifiability in those states. It also allows the Agency to redirect saved verification resources towards states of greater concern. The question of resources is important over the long-haul if the Agency is ever going to be involved in verifying compliance with Article VI.
The Additional Protocol thus needs to become the ‘gold standard’ for safeguards and adopted universally. This can be achieved by IAEA salesmanship and coaxing from interested states, like Canada, but best of all would be a decision by the Board of Governors to make it mandatory, both as a condition of supply for nuclear trade and as a requirement of safeguards generally.
National Implementation Measures
The second most important verification step that could be taken by the non-nuclear weapon states is to ensure that they have the requisite national implementation legislation and other national measures in place to implement the NPT within their territories.
Unfortunately, unlike other arms control treaties, the NPT neglects specifically to require states to do this. Many states do, as a matter of course, but many do not. They either never get around to it or assume that by incorporating the NPT into their domestic law they are covering all bases.
Fortunately, the UN Security Council, in Resolution 1540 of April 2004 adopted under Chapter VII of the UN Charter, has made it mandatory for all states, even the three non-NPT parties, India, Israel and Pakistan, to adopt national implementation measures for all types of weapons of mass destruction, including nuclear, to prevent non-state actors – notably terrorists – from acquiring such weapons. A fully compliant state will, in this regard, have legislation that bans its citizens from any activities that would violate the state’s obligations not to proliferate nuclear weapons, either on its territory or elsewhere, and that imposes appropriate criminal penalties. It will also have secondary regulations to implement the primary legislation, plus the requisite government coordination agency, intelligence, police and customs activities and structures, and procedures that permit the state to cooperate fully with the IAEA. The Canadian Centre for Treaty Compliance is currently conducting a study into how well equipped states are in this respect – starting with six case studies (Brazil, Canada, Fiji, France, Malaysia and Nigeria).
If this doesn’t sound like traditional verification, it’s because it isn’t.
In the wake of 9/11 the verification concept has had to be vastly expanded to take account of the threat of acquisition of nuclear weapons and other WMD by terrorists. These days verification is taken by many to mean any step taken to fulfil a state’s compliance obligations that is measurable and monitorable. In the case of national implementation measures of UN Resolution 1540, all states now have to report annually to the Security Council on the steps they have taken to comply.
Verification and the Nuclear Weapon States
But what of verification in respect of the obligations of the nuclear weapon states (NWS)? They do of course participate in the nuclear safeguards regime and to that extent in verification. They voluntarily offer nuclear facilities to be safeguarded as a way of demonstrating their goodwill and willingness to shoulder a verification burden. But the IAEA is reluctant to ‘waste’ safeguards resources on this and has only taken up the offer in a few cases. All of the nuclear weapon states have also concluded Additional Protocols. Again, however, these are largely symbolic, varying widely in the extent to which they oblige the NWS to provide the IAEA with additional information and certainly not permitting the Agency to seek access to undeclared sites and materials, as in the case of the non-nuclear weapon states.
All of this is cosmetic. The real nub of verification in respect of the NWS relates to their Article VI obligations. And here their collective record is poor, even given the fact that disarmament measures directly attributable to Article VI have not yet emerged – notwithstanding the attempts of the NWS to portray their unilateral or bilateral steps as being inspired by Article VI.
True, the US and the Soviet Union were verification pioneers in their Strategic Arms Limitation Treaties (SALT I and II), Strategic Arms Reduction Treaties (START I and II) and Intermediate-range Nuclear Forces (INF) Treaty, producing creative and workable verification regimes that enhanced confidence. These regimes have in fact outlived the mistrust that gave rise to them and that made them so stringent and intrusive. But the START I verification regime expires in 2009, if nothing is done about it, and START II has never entered into force.
Even worse, the purported successor agreement, the 2002 Treaty on Strategic Offensive Reductions (SORT), contains no verification provisions whatsoever, despite the desire of Russia to include them. While the administration of George W. Bush argued during the SORT negotiations that verification was unnecessary due to the improved relationship with Russia, this misses the point: verification is not there for the easy times but for the hard times, when the relationship might deteriorate and trust needs bolstering. Verification is also there to demonstrate to the rest of the world that compliance is taken seriously by both sides. Maintaining and indeed improving the bilateral strategic nuclear verification regime of the two leading nuclear powers would help them retain the capacity and experience that will be needed if verified nuclear disarmament is ever to occur.
It is also true that the various Cooperative Threat Reduction (CTR) programs involving the United States and other Western states on the one hand, and Russia and other former Soviet states on the other, is helping not just to reduce nuclear weapon delivery systems, such as submarines, and weapons-useable materials but is also producing greater information about the extent and nature of the former Soviet arsenal. But this is agonizingly slow and subject to too much resistance by the guardians of such nuclear remnants, not to mention legal and financial barriers, to be of much use in increasing transparency, especially beyond US and allied officials. So the CTR, the Global Partnership and associated programs are all well and good, but do not take us fast enough or reliably enough along the transparency and verification road.
If the NWS were really taking their Article VI obligations seriously they would be at least making a more credible show of preparing for the day when verification would be required for its complete fulfilment. What then should they be doing?
- SORT Verification: The US and Russia should give SORT a verification regime, retroactively. The treaty already provides for a Bilateral Implementation Commission that could be used to negotiate such a regime; the two parties could presumably, by simple bilateral agreement, also extend the START I verification measures indefinitely. Because SORT deals with warheads, not missiles, verification of this type of treaty would be a necessary precursor and model for future nuclear disarmament verification.
- Transparency: All of the NWS need to devote serious energy and resources to hastening the mutual nuclear transparency process that will be necessary if nuclear disarmament is to ever be achieved; for a start, the NWS should account for their production to date of fissionable material. The British and Americans have attempted this, but admit that it is a difficult exercise and aspects may be flawed, among other reasons because of inherent uncertainties and poor bookkeeping in the early decades of the nuclear era. The Russians and Americans have also made attempts to exchange data on past production but have run up against concerns about confidentiality. The challenges in accounting for past production indicate that a start should be made immediately by all NWS so that this does not become yet another excuse for procrastination about nuclear disarmament. Such transparency will, depending on the scope of a future Fissile Material Cutoff Treaty (FMCT), be more or less essential for that treaty’s verification.
- Tactical Nuclear Verification: The US and Russia should negotiate a verifiable treaty on tactical nuclear weapons that, for the first time, would reveal how many they have and their locations and which would facilitate verification of reductions and eventual elimination. Many of the verification lessons that will undoubtedly be learned from this effort will be useful for nuclear disarmament verification.
- Implement the Trilateral Agreement: The Trilateral Agreement between Russia, the US and the IAEA, which seeks to involve the Agency in verifying disposal of excess fissionable material, should be implemented, at least beginning with a trial period. After prolonged negotiations on the agreement between 1996 and 2002 the text is essentially ready. The role that the arrangement envisages for the Agency would be a vital one for a multilateral verification organization in any serious global nuclear disarmament process. On the assumption that the IAEA would eventually transmogrify into that organization, the Trilateral Agreement would provide it with invaluable experience. The agreement’s implementation has been stymied by the fact that no material has been offered by the US and Russia for the purpose; continuing disagreement over whether IAEA monitoring would continue on such material indefinitely; and squabbling over who will pay the monitoring costs.
- Intensifying Verification Research: All of the nuclear weapon states need to begin or intensify their research into and cooperation on outstanding challenges in verifying nuclear dismantlement. This would include monitoring and verifying the destruction of declared weapon components and production facilities and disposition of declared nuclear explosive materials. The US and the UK have been leaders in this area and have also shared information on the results. The UK has conducted a five year program at the Atomic Weapons Establishment at Aldermaston using the actual dismantling of their Chevaline warheads to study and trial potential methodologies for a future nuclear disarmament verification regime. Unfortunately this program has concluded and not been renewed, presumably because the British feel it has been taken as far as it can be in the present circumstances. All of the nuclear weapon states need to begin similar programs, especially as their nuclear arsenals differ and may require bespoke verification measures. Even more important than researching verification relating to declared items is work on verification measures to detect undeclared weapons, facilities and materials.
The 2005 National Academy of Sciences Report Points the Way
Numerous political and technical questions remain, of course, about how to achieve effective verification of nuclear disarmament down to very low levels or zero. The US National Academy of Sciences’ Committee on International Security and Arms Control has done us an enormous service in this respect by publishing in 2005 a comprehensive assessment of current and foreseeable methods for monitoring nuclear weapons and nuclear explosive materials in a disarming world.[2] Their conclusions are worth analyzing.
- Verifiability: The Committee concluded that current and foreseeable technologies exist to support verification of declared weapons at declared sites, based on transparency and monitoring, for all categories of nuclear weapons – strategic and nonstrategic, deployed and non-deployed. Current and foreseeable technologies also exist for verifying declared nuclear explosive components and materials. These techniques could be applied to existing bilateral and multilateral treaties, the Committee said, without the need for further negotiated agreements; in other words, in terms of declared nuclear capabilities we either already have the verification problem solved or can envisage it being solved.
- The trade-off between transparency and confidentiality: While there are some tensions between transparency and confidentiality, the use of available and foreseeable technologies, according to the Committee, can substantially alleviate this problem.
- The degree of uncertainty: The Committee noted that the nature of nuclear explosive material production and of nuclear materials and nuclear weapons places some fundamental limits on the capabilities of any system of monitoring and transparency to provide assurance of compliance. Accordingly, a degree of uncertainty is inescapable. This implies that high-level political decisions need to be made about verifiability. But clearly we are a long way from reaching the point where that decision will be necessary.
- Breakout: The biggest challenge to cooperative verification, the Committee reiterates, arises if a state tries to give the appearance of cooperation while covertly retaining undeclared stockpiles or nuclear weapons or nuclear explosive materials and/or production programs (the ‘breakout problem’). The risk of undetected non-compliance can be reduced, the Committee says, through the synergistic effect of multiple technical and management measures, supported by increased transparency and robust national technical means of intelligence collection.
- The need for formal treaties: While formal treaties take time to negotiate, the Committee argued that they provide more durable assurance that verification measures will be sustained over time and across changes in government. This challenges the approach of the current US administration, which rejects negotiated cooperative verification for SORT and FMCT, among other arms control and disarmament agreements.
- The Russian stockpile: The sheer size and age of the Russian stockpile, notes the Committee, presents a particular ‘breakout’ challenge where current uncertainties amount to the equivalent of several thousand weapons. While uncertainties surrounding other countries like China would be fewer, they are still problematic. The Committee argued that certainty could be increased in all cases by the “successful operation of a monitoring program over a period of years in an environment of increased transparency and cooperation.”
Essentially the message from the NAS is that existing and foreseeable verification techniques, technologies and methodologies would provide significant reassurance of compliance in a world that was moving toward nuclear disarmament. It is also clear that the process should begin immediately to accelerate transparency and cooperation and in further researching verification improvements. Imagine if a small portion of the billions of dollars being spent on the Iraq war could be diverted to this ultimate security challenge. For a start, one could imagine a full-scale study of the possibility and implications of ‘breakout’ in a nuclear weapon free world, something that no government has yet apparently commissioned, perhaps due to disbelief that it would ever be needed.
Strengthening the IAEA
More immediately, a start needs to be made on equipping the IAEA to eventually fulfil a much greater role than it currently does in nuclear disarmament verification. Giving it responsibilities through the Trilateral Agreement would be a good start, as would sorting out the legal options available to expand the mandate of the Agency into this area. Along with this needs to come a significant increase in IAEA verification capacity.
The IAEA Board of Governors has recently established a Special Committee on Safeguards and Verification to examine further improvements, but it has gotten off to a slow start. It should not only be tasked with considering further improvements in nuclear safeguards but also improvements to the Agency’s generic capacities. For instance, the Agency’s examination of environmental and other samples from Iran has not been as speedy as it might have been due to a lack of capacity at its analytical laboratory. The Agency has recently been freed from the constraints of zero real growth and member states, notably the US, and even a non-governmental organization, the Nuclear Threat Initiative, have provided additional helpful funding. But, bearing in mind the need to keep an eye on all UN-type agencies for lapses in effectiveness and efficiency, the Agency needs to be more generously funded: in terms of global security it is cheap at half the price. Part of this funding could go towards the Agency itself conducting research into advanced nuclear verification techniques.
A fundamental question that needs to be addressed is whether the Agency could be involved in verifying nuclear disarmament without its personnel acquiring knowledge of nuclear weapons and contributing, either inadvertently or deliberately, to proliferation. Ways and means have been found to get around this dilemma to date, principally by using personnel from the existing nuclear weapon states in delicate verification tasks such as those involving South Africa and Libya. As the nuclear weapon states fade away, however, the question arises as to who should be the repository of the knowledge necessary to sustain effective verification of compliance with a universal ban on nuclear weapons.
The Broader Context of Nuclear Disarmament Verification
There can probably never be a foolproof multilateral verification regime for total nuclear disarmament. Verification must be seen in the broader context. For a start a nuclear weapon free world would need an effective, universal organization to help implement a global nuclear disarmament treaty, along with robust compliance arrangements, specifically designed for such a treaty. As the likely final arbiter in any compliance dispute and therefore a vital component of any compliance system for a nuclear weapon free world, the UN Security Council would need to be reformed.
A disarmed world would also likely need, in addition to the multilateral mechanisms, arrangements between pairs and groups of former nuclear weapon states, established to give them additional reassurance as the nuclear disarmament process proceeded towards zero. These could have their own verification regimes and be designed to endure indefinitely or only until the multilateral system proved its effectiveness. Such arrangements could emulate those for the Russia/US nuclear reduction treaties from START I onwards and could include arrangements between, for example, China and the US, India and Pakistan and Israel and its neighbours. National technical means would also need to be not only sustained but protected and supported by the international regime as an inherent right of all states in a nuclear weapon free world.
Conclusion
Complete nuclear disarmament implies not just a significant evolution in verification, but an evolution of the international system. States will have to change their attitudes towards the limits of sovereignty, the rule of international law and governance of the international system, particularly in regard to enforcement, if nuclear disarmament is ever to be negotiated. Indeed, the attainment of a nuclear weapon free world is so dependent on such changes that we will only be able to judge fully and accurately its verifiability as we become seriously engaged in moving towards that goal. In the meantime we need to ponder whether a world with seven declared, one undeclared and one vacillating would-be nuclear weapon state (North Korea), along with numerous potential ones, is safer than a denuclearized world with a strong international verification system and a remote chance of nuclear breakout.
This presentation was given to the third meeting of the Article VI Forum, “Responding to the Challenges of the NPT”, held September 27-29, 2006, in Ottawa, Canada (for details, see www.middlepowers.org).
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[the editors:] Article VI of the NPT says that “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.”
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Committee on International Security and Arms Control of the National Academy of Sciences, Monitoring Nuclear Weapons and Nuclear-Explosive Materials: An Assessment of Methods and Capabilities, Washington DC, 2005.
