Paul Meyer

There are few objectives in the nuclear non-proliferation and disarmament realm as long- standing and as widely supported as the negotiation of a treaty banning the production of fissile material for nuclear weapons or other explosive devices. As early as 1957, the UN General Assembly in its Resolution 1148 called for the cessation of such production. In addition to UN General Assembly resolutions in favour of negotiating a treaty to ban fissile material production, states parties to the nuclear Non-Proliferation Treaty (NPT) attached high priority to the conclusion of such a treaty. In consensus agreements from the 1995 NPT Review and Extension Conference and the 2000 NPT Review Conference states parties specifically tasked the Conference on Disarmament (CD) in Geneva to commence immediate negotiations on this treaty. Indeed the 2000 Review Conference stipulated that the negotiations should be concluded within five years.

The year 2005 came and went without FM(C)T[1] negotiations in the 65 member state CD having started, let alone been concluded. The CD has been ensnarled in a protracted impasse over approval of a Programme of Work that under its strict consensus rules requires annual renewals and has effectively meant that official work on an FM(C)T ceased in 1998.

In May 2009, there was a short-lived euphoria, when the CD managed to overcome its 11 year gridlock and actually agree on a Programme of Work, which included convening of a Working Group to start FM(C)T negotiations. Subsequent manoeuvring and the generation of spurious procedural objections on the part of a couple of member states (principally China and Pakistan) have prevented any operationalization of the agreed Programme of Work during the CD's 2009 session. Given the CD's procedural requirement for annual renewal of a Programme of Work, the whole enterprise will be subject to new decisions in January 2010 (and thus to the possibility of further diplomatic sabotage in translating a Programme of Work into a functioning work programme).

Even so, after more than a decade of stalemate, an optimist might be excused for taking the formal adoption of the 2009 CD Programme of Work as a politically significant development and a harbinger of progress to come. Certainly the advent of the Obama Administration, with its re-embrace of a verifiable FM(C)T as a goal and its broader commitment to advancing purposefully along the road to a nuclear weapons free world, as expressed by President Obama in his Prague Speech on 5 April, has created an atmosphere more conducive to nuclear disarmament. The renewed commitments to "leading by example" in nuclear arms reduction expressed at the 6 July Obama-Medvedev Summit also sent a positive signal to the international community. This signal of renewed engagement by the two leading nuclear weapons powers is especially significant in the run-up to the May 2010 NPT Review Conference. Within this context, the negotiation (or even the initiation of a negotiating process) of an FM(C)T would have great resonance given its high standing amongst the agreed disarmament priorities of the NPT states.

Given this more propitious international environment and the almost universal support for an FM(C)T in declaratory policy, what is the best way to channel this seemingly positive political will and actually get the negotiations underway? As the "seemingly" qualifier suggests, one of the problems facing an FM(C)T is that the consensus in favour of it is more apparent than real.

Shannon's Report and Mandate

The agreed negotiating mandate for the treaty dates back to March 1995 when the CD adopted it. Generally referred to as the "Shannon Mandate" (named after the late Canadian Ambassador Gerald Shannon who had formulated it), this was the basis for subsequent consensual resolutions in the UN General Assembly and similar agreed decisions in the 1995 and 2000 NPT Review Conferences. The key direction contained in the mandate is for the responsible Ad Hoc Committee of the Conference "...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". What is sometimes overlooked however is that Ambassador Shannon's report also recorded that delegations held differing views as to "the appropriate scope of the convention", specifically whether past as well as future production should be considered and that "it has been agreed by delegations that the mandate for the establishment of the Ad Hoc Committee does not preclude any delegation from raising for consideration in the Ad Hoc Committee any of the above noted issues".[2] In brief, the core issue of the scope of the treaty remains an open question and the external veneer of consensus in the treaty's favour is actually paper thin.

Scope

The position taken by states on the scope issue is a function of their perception as to what is in their best strategic interest. It is also reflected in the relative weight states have given respectively to the non-proliferation and disarmament goals of the NPT (at least for those 190 states party to this treaty). Roughly speaking, those states that wish to limit an FM(C)T to a cessation of future production consider the non-proliferation objectives as primary, whereas those that wish to include past production (stocks) put a higher priority on making progress on the disarmament aims. Related to this is also the issue of equitable commitments, as the five NPT-recognized nuclear weapons states have all ceased production of fissile material for nuclear weapons and all but China have officially affirmed a moratorium on such production. A ban on future production, while codifying and making legally binding these moratoria, would not actually move beyond the status quo for these states while foreclosing growth possibilities for states such as India and Pakistan, which are still perceived to be developing their nuclear weapons arsenals.

In addition to these broad considerations related to the NPT purposes, some states are primarily motivated by regional security factors, particularly when related to strategic competition with regional rivals. The situation of India and Pakistan, two non-NPT nuclear weapon possessors with a history of bilateral conflict, is a case in point. Pakistan perceives its larger neighbour as having a strategic advantage in terms of existing nuclear weapons and related fissile material stocks and is not prepared to allow its own inferior status to be permanently embedded through a treaty that only bans future fissile material production. Moreover, the existing strategic imbalance has recently been exacerbated by the opening up of new external supply opportunities available only to India, as a consequence of its bilateral nuclear cooperation deal with the United States. In connection with this deal, the Nuclear Suppliers Group also lifted its long-standing constraints on nuclear trade with India.

Pakistan's perceptions of the strategic implications of this development have been recorded in several recent CD statements. Most recently, Ambassador Zamir Akram told the Conference on Disarmament: "As regards the Fissile Material Treaty (FMT), the CD Membership is fully cognizant that existing and future stocks has assumed greater significance for Pakistan in the light of the nuclear cooperation arrangements in our neighbourhood. These upset the strategic balance in the region. Unless the equilibrium is re-established, the fashioning of an appropriate FMT appears to be a difficult challenge. A treaty which would merely legalize national moratoria of nuclear-weapons-states and freeze the asymmetries will undermine the international community's vision of a nuclear weapons free world as well as Pakistan's national security."[3]

In contrast, India insists that an FM(C)T "would focus on the future production of fissile material for nuclear weapons or other nuclear explosive devices" and its CD ambassador warns that "We will not accept obligations not in keeping with or prejudicial to our national security interests or which hinder our strategic programme."[4]

With regard to the views of other states (to the extent that they are known), it would appear that only a small minority (in effect, the five NPT-nuclear weapons states plus India) wish to limit the FM(C)T to future production while the majority favour addressing stocks in some fashion. In a working paper submitted to the 2005 NPT Review Conference, the 110-member Group of Non-aligned states party to the Treaty stated that: "The group is also concerned by attempts to limit the scope of the negotiations on a fissile material treaty, as contained in the statement of the Special Coordinator in 1995 and the mandate contained therein."[5]

Many states may simply not want to pronounce on the issue pending commencement of work on a treaty. Most would prefer to get FM(C)T negotiations underway without preconditions and let the actual process of talks determine what scope would eventually be acceptable as a basis for an agreed treaty. That said, a few CD member states (notably Australia, Canada, Germany, Japan and South Africa) have submitted working papers in the past decade indicating their national views on how the scope of an eventual FM(C)T should be delineated. These have tended to avoid an "either/or" approach to the scope issue and have explored ways in which stocks could be subject to some form of transparency or control arrangements.

One of the most recent and innovative proposals for making progress on an FM(C)T was set out in a working paper submitted by Germany to the 2008 NPT Preparatory Commission (PrepCom) held in Geneva.[6] The German paper envisaged a "phased" approach consisting of three parts: i) an initial political declaration committing to a fissile material cut-off, necessary control measures on weapon-usable materials and the entering into negotiations on an FM(C)T; ii) a framework treaty enshrining the basic norms and including provisions for transparency measures and possibly other voluntary steps; and iii) additional implementation protocols covering verification and broadened scope, including specific issues such as the use of fissile material for naval nuclear propulsion. The German paper also called for the establishment within the CD of a Group of Scientific Experts to examine technical aspects of an FM(C)T akin to what was done prior to (and during the course of) negotiations on a CTBT. Finally, the German proposal embraced Robert Einhorn's concept of a Fissile Material Control Initiative (FMCI) "conceived as a voluntary, multilateral arrangement open to any country possessing fissile material." Germany viewed such an FMCI as a possible element of its proposed initial political declaration stage. Germany re-affirmed its preference for the FM(C)T negotiations to take place in the CD, but used a formula implying that alternatives could also be considered: "Political will permitting, such negotiations should best be conducted within the CD."

The thoughtfulness, creativity and practical guidance of the German Working Paper contrasts with the working paper submitted by the EU at the May 2009 NPT PrepCom. Containing the revelation that "The negotiations on an FMCT are overdue", this rather pedestrian EU paper sets out in somewhat convoluted fashion the EU policy line: "The EU attaches a clear priority to the negotiation, without preconditions, in the Conference on Disarmament, on an FMCT, including verification provisions as a means to strengthen disarmament and non-proliferation."[7] The EU paper at least attempted to set out some parameters for the treaty negotiations, which is more than the NAM working paper for the 2009 NPT PrepCom, which just contained the general exhortation to conclude a treaty: "banning the production of fissile material for nuclear weapons and other explosive devices, taking into account both nuclear disarmament and non-proliferation objectives."[8] . Such vague declaratory stances on the part of groupings of states however, convey more the air of an article of faith, affirmed for purposes of internal cohesion, than any meaningful policy guidance as to how to bring about this desired objective. It is clear that it will require leadership by individual concerned states to initiate any real action on the matter.

Now that the Obama Administration has restored the long-standing US position in favour of a verifiable treaty, the United States should be expected to provide leadership within multilateral arms control fora and set out a strategy for starting work on an FM(C)T. Such US engagement is necessary to overcome five years of drift after the Bush Administration broke with the prevailing consensus around the Shannon Mandate and claimed that an FMCT could not be verified.

At present, US representatives have not gone beyond reaffirming that an FMCT is a top priority for the United States and expressing the hope "that its renewed flexibility on this issue will enable negotiations to start soon in Geneva".[9] While this represents an understandable "holding line" as the new administration consolidates its policy capacity on non-proliferation and disarmament issues, it would be useful for the FM(C)T endeavour if Washington could help "prime the pump" for diplomatic action on this long-standing goal.

Recently President Obama spoke of his intention to host a conference on nuclear security in 2010 in advance of the NPT Review Conference in May. Such a conference conceivably could be used as a springboard for initiating some form of work on an FM(C)T, even if just to seek some common understandings amongst key participating states as to the parameters of an eventual treaty negotiation.

Other leading nuclear states with fissile material holdings could also focus on the FM(C)T project and impart some momentum and direction. British Prime Minister Gordon Brown has put forward a "Road to 2010"[10] plan with proposals on a variety of nuclear non-proliferation and disarmament issues, including fissile material security. The UK has also announced that it will hold a meeting in September of experts from the five NPT-recognized nuclear-weapon states to address the technical issues associated with nuclear disarmament and verification. While the initial indications are that the British proposals will focus on the protection of existing fissile material holdings, there is certainly room to incorporate a diplomatic component that would look at how best to jump-start FM(C)T negotiations.

Non-governmental organizations (NGOs) also have a role to play in re-energizing negotiations on an FM(C)T. The International Panel on Fissile Materials (IPFM - an independent group of arms-control and non-proliferation experts from sixteen countries) has for several years been making a great contribution to the professional examination of key aspects of the FM(C)T project. The IPFM's 2008 report on the Scope and Verification of an FM(C)T[11] and its draft treaty text released in March 2009[12] provided high quality, scientifically grounded analysis of the challenges posed by an FM(C)T and some practical suggestions as to how these challenges might best be met.

To some extent the work of the IPFM is making up for the absence in the CD of a Technical Experts Group able to address the substance of an FM(C)T. This form of expert contribution is all the more important at a time when the professional capacities of many of the national delegations to the CD have been reduced in the decade-plus period the Conference has not been engaged in actual negotiations. Many of the diplomatic representatives filling the seats at the CD lack substantive knowledge of the items on the CD's agenda and prior experience with arms control negotiations. Alas, part of the penchant for procedure in the CD is that its representatives are no longer comfortable with addressing the substance of its agenda. Whatever forum is eventually activated to initiate FM(C)T negotiations, it will be necessary to ensure that solid subject matter expertise is available to the negotiators. The freely available products of the IPFM take on a new significance in this light.

Given the diversion risk represented by existing stockpiles which could jeopardize both nuclear non-proliferation and nuclear disarmament purposes, the general conclusion is that stocks need to be addressed in some manner. The solution to the scope problem advocated by the IPFM is to have states separate out their military and civilian fissile material stocks and put the excess not required for nuclear weapons or other military purposes under international safeguards. This approach tracks well with the views set out in most of the working papers on an FM(C)T submitted in the CD context.

The Japanese working paper advocates banning diversion of stocks for non-proscribed military uses for nuclear weapons purposes as well as any reversion back to nuclear weapon purposes of stocks declared as excess. It also favours "examining the addition of transparency enhancing measures such as voluntary declarations based on state accounting and control, as well as the realization of physical protection obligations".[13] A Canadian working paper suggests that "An objective for NWS [NPT-recognized nuclear weapons states] and non-NPT states should be to undertake a process that would complement a ban on production by declaring the broadest possible fissile material inventories, accepting the application of verification provisions to the highest degree possible, ensuring that fissile material deemed to be in excess of military needs is made subject to international control, and working to ensure that overall fissile material stockpiles are reduced to the lowest possible levels".[14] The bottom line seems to be that stocks of fissile material are simply too important for the ultimate integrity of an FM(C)T to be left out of the equation completely. At the same time, there appears to be considerable room for customizing arrangements regarding stocks that would complement the core prohibition on further production of fissile material that would be at the heart of any FM(C)T.

Verification

If scope remains a challenging issue, but one amenable to creative solutions, verification should arguably be an easier matter to address as part of an FM(C)T. At least there is now renewed consensus in favour of the Shannon Mandate's exhortation for "an internationally and effectively verifiable treaty". As noted earlier, this consensus was for a few years challenged by the Bush Administration's conclusion that verification of an FM(C)T was impossible and should hence be dispensed with, but the Obama Administration's decision to restore the previous US position in favour of a verifiable treaty has now reaffirmed the view that verification of an FM(C)T is both desirable and do-able.

However, how this verification should be constructed and who should be responsible for implementing it, are two questions that remain to be debated in the course of negotiations. What constitutes "effective verification" is like "beauty" in the eye of the beholder, and subject to a myriad of interpretations. A key factor in determining the appropriate verification regime is deciding on what exactly is to be verified. Most importantly, the choices on scope of an FM(C)T, particularly with regard to the coverage of past as well as future production, or civilian as well as military production, will have an impact on verification requirements. Similarly the inclusion of non-proscribed military uses of fissile material (such as for naval nuclear propulsion) would complicate the verification equation far more than if a decision were taken to prohibit all forms of military fissile material production.

In this context, negotiations on the verification regime may have to wait for clarification of the scope or indeed the definitions of key terms like "fissile material". As one thoughtful observer of the FM(C)T enterprise has noted: "Without at least a prior general understanding of the scope of an FMCT and without the definitions put into tune with existing or at least feasible, practical and affordable verification techniques, such an approach to FMCT negotiations would lead to a dead-end."[15]

In addition to the triangular and interconnected relationship between definitions, scope and verification, there is also the practical consideration of costs. The criterion of "affordability" may prove as much a driver as the criterion of "effectiveness" in determining the verification provisions of an FM(C)T. This reality was already flagged by the Head of Verification and Security Policy of the International Atomic Energy Agency (IAEA) in a presentation to the CD in 2006, which noted: "Notwithstanding the fact that technically a comprehensive system of verification under an FMCT would appear to be the best alternative, States might opt for a less resource-intensive alternative, with a trade-off regarding the non-proliferation and disarmament benefits of a comprehensive approach against the reduced costs of more focused nuclear-facility-targeted approaches."[16]

Cost factors could also dictate the choice of organization for carrying out agreed verification under an FM(C)T. The IAEA is frequently seen as the natural candidate for taking on this role, especially as the existing verification requirements for non-nuclear weapons states under the NPT and related IAEA safeguards agreements are likely to suffice for this category of states under an FM(C)T. Although such a new tasking for the Agency would require a reinforcement of its safeguards operations with attendant costs, these would seem to pale against the costs of establishing a separate organization for conducting FM(C)T verification. The IPFM reached a similar conclusion in proposing that the IAEA take on responsibility for verification. The IPFM in the introduction to its draft treaty, states that "The IAEA has extensive experience in inspecting nuclear installations and nuclear materials, including in the NPT nuclear-weapon states under their voluntary safeguard agreements. The obligations of nuclear-weapon states under the FM(C)T will overlap strongly with the obligations of non-weapon states under the NPT and will become more similar as nuclear disarmament proceeds."[17]

Clearly one attractive feature of an FM(C)T and its associated verification arrangements is the promise of an integrated safeguards regime that would cover all fissile material and reduce the current discrepancy between the verification burden on the nuclear and non-nuclear-weapon states. For proponents of non-proliferation and disarmament alike, there is an allure in such a comprehensive accord governing all fissile material, both as a cost- effective approach to fissile material control and as a necessary complement to eventual nuclear disarmament arrangements.

Conclusion

This brief survey of some of the issues surrounding the scope and verification of an FM(C)T suggests that these points, while posing challenges, are not insurmountable obstacles to concluding an effective treaty. These questions are all amenable to answers once negotiations are underway. The principal diplomatic challenge facing an FM(C)T remains how to initiate negotiations and bring them to a timely conclusion. As suggested earlier, diplomatic options are not limited to a real breakthrough at the CD, but could embrace other fora or formulas, from initiating negotiations under NPT or IAEA auspices, to commencing dedicated work amongst a sub-set of states possessing fissile material. The chief gap that remains to be bridged is that of leadership on the part of influential states in the international nuclear field. What the FM(C)T project urgently needs, after years of neglect, is a champion prepared to launch this undertaking and to challenge its nuclear peers to either get on board or get out of the way as progress is made.

Notes

[1] I have adopted the acronym FM(C)T - Fissile Material (Cut-off) Treaty used by the International Panel on Fissile Materials, which in its very useful draft treaty text of 16 March 2009 explains that this name makes explicit the unresolved issue of the treaty's scope. See www.fissilematerials.org.

[2] CD/1299 24 March 1995 (CD and NPT working papers and statements accessed via www.reachingcriticalwill.org).

[3] Statement to the CD by Ambassador Zamir Akram of Pakistan, 4 July, 2009.

[4] Statement to the CD by Ambassador Hamid Ali Rao of India, 29 May, 2009.

[5] Contained in CD/1752, 27 June, 2005.

[6] "Creating a new Momentum for a Fissile Material Cut-Off Treaty" Working paper submitted by Germany. NPT/CONF.2010/PC.II/WP.21, 30 April, 2008.

[7] Working paper submitted by the European Union, NPT/CONF.2010/PC.III/WP.35, 13 May, 2009.

[8] Working paper submitted by the Group of Non-aligned Member States, NPT/CONF.2010/PCIII/WP.30, 6 May, 2009.

[9] Statement to NPT Prep Com by Rose Goettemoeller, Assistant Secretary of State for Verification, Compliance and Implementation; New York, 5 May, 2009.

[10] UK Cabinet Office, 'Road to 2010: Addressing the nuclear questions in the twenty first century', July 2009, available at www.acronym.org.uk/docs/0907/roadto2010.pdf.

[11] International Panel on Fissile Materials, Global Fissile Material Report 2008: Scope and Verification of a Fissile Material (Cutoff) Treaty, available at: www.fissilematerials.org/ipfm/site_down/gfmr08.pdf.