Clandestine nuclear programs have been at the heart of many difficult international conflicts, and that number seems likely to grow. Although the overlap in skills, technologies, and equipment between civilian and military programs is both substantial and well-recognized, the push for the expansion of civilian nuclear power -- even when it makes no economic sense -- has continued unabated. Often, this is justified under the terms of the Nuclear Nonproliferation Treaty (NPT) that came into force in 1970.
The specific issue of whether the rights garned in the NPT on "peaceful" nuclear development are absolute, or constrained by other factors like nearly every other legal agreement in existence, including the US Constitution, is one that has not gotten enough attention.
Henry Sokolski, Executive Director of the Nonproliferation Education Center, has taken this on directly as part of a much longer essay on US mis-steps that contributed to the current Iranian nuclear crisis. His entire essay is worth a read, but I'm grateful for his permission to reprint the section on civilian power and the NPT below:
Exaggerated the value of peaceful nuclear energy and NPT member states’ right to it.
One of the reasons Washington felt so comfortable promoting civilian nuclear energy in the Middle East is that it was a diplomatic path that already was well worn. Back in the l970s, the US endorsed the Shah’s fantastic nuclear plans to assure Iran’s dominate role in the Persian Gulf and its strategic ties to the US. Even after initial plans were dropped to transfer reprocessing technology, Carter subsequently offered the Shah access to this technology again. At the same time, the U.S., Russia, Germany, and France all competed for nuclear sales and political influence in the Middle East by offering nuclear reactors to Jordan, Israel, Turkey, Egypt, Libya, Iraq, Iran, and Algeria. This was the state of play just before the Shah was deposed.
Meanwhile, the US and nuclear supplier states gave up demanding through INFCE that states back off making nuclear fuel and let the market dictate what was safe and dangerous. This meant the US and others winked at Brazil, South Africa, Germany, Holland, Japan as they stood up nuclear fuel making efforts. Finally, when the crisis over Iranian fuel making came in 2002, the US and the EU almost reflexively jumped to affirm Iran’s right to develop “peaceful nuclear energy” in ways that only made Iran’s efforts to make nuclear fuel seem increasingly legitimate.
Thus, the EU was careful in its first offering of incentives to Iran to allow that Iran retained its right to peaceful nuclear energy and to offer it light water reactors. Shortly thereafter, President Bush’s national security advisor conceded Iran had the right to make nuclear fuel for peaceful purposes but suggested that it would be best if Iran could see the wisdom of exercising that right on Russian soil. It was about this time in 2006 that the US backed off its objections to Bushehr as a front for and possible path to acquiring nuclear weapons. Instead, Washington announced that deemed that Bushehr was peaceful and legitimate.
More recently, the U.S and others offered to supply Iran with nuclear fuel enriched to 19.75 percent. When the negotiations for such supplies broke down over differences regarding the swap out of low enriched Iranian fuel, Iran insisted that it must proceed to enrich to 19.75 percent – which technically is on the cusp of being weaponsgrade. Finally, in May of 2010, the U.S. backed countries’ rights to develop peaceful nuclear energy in the final declaration of the NPT Review Conference. This declaration, though, not only iterates all countries’ right to peaceful nuclear energy. It prohibits reinterpreting the NPT’s protection of peaceful nuclear activities under Article IV in any way that would “limit” these rights. It also affirms the importance of all member states availing themselves of Gen IV International Forum efforts and moving toward a “sustainable fuel cycle” – i.e., all code for recycling nuclear fuel and moving toward fast reactors – technologies historically associated with making nuclear reactor fuels that can be quickly converted into nuclear weapons.
These views and actions correspond with the conventional wisdom that any reading of the NPT that might curtail NPT members’ rights to peaceful nuclear energy is simply a nonstarter. Such a view, however, is mistaken about how absolute these rights are. In fact, some of the NPT’s peaceful nuclear energy benefits have already been significantly reinterpreted and effectively abolished.
Consider the Article V of the NPT and its call on nuclear weapons states to share the possible benefits of peaceful nuclear explosives. When Article V was first proposed in the 1960s, most nations, including the U.S. and Russia, believed that nuclear explosives could be employed as “ploughshares” to create canals and to complete other civil engineering tasks, including mining and excavation. To assure nonweapons states the possible benefits of such nuclear applications, the NPT allowed nuclear weapons states to share such benefits by supplying nuclear explosive services to nonweapons states on a turn-key basis.
To date, no state, though, has applied for such assistance nor has any state offered it for two unanticipated reasons. First, the “possible benefits of peaceful nuclear explosives” turned out to be negative: Given the costs of cleaning up the radioactive debris that the use of peaceful nuclear explosives would produce, it became clear that it would be far cheaper to use conventional explosives for civil engineering applications. In short, there were no “benefits” to share.
Second and closely related, the few states that insisted on conducting their own “peaceful nuclear test explosions” – India and Russia – were strongly suspected of using Article V as a cover for nuclear weapons testing. Certainly, the U.S. and most nuclear supplying states sanctioned India for its 1974 test of a “peaceful nuclear device” by depriving it access to most controlled civilian nuclear supplies and, in time, any nuclear explosion, “peaceful” or not, was seen as a violation of a norm against any form of nuclear testing.
This example of Article V’s reinterpretation speaks directly to several of the NPT’s most pressing current difficulties. As already noted, the prevailing view of the “inalienable right” to “peaceful nuclear energy” recognized by the NPT is that this right automatically allows states to participate in any nuclear activity, no matter how uneconomical or dangerous, so long as it has some conceivable civilian application and the materials or activities in questions are occasionally inspected by IAEA inspectors or their equivalent. This is Japan’s view, and that of the Netherlands, Germany, South Africa, Brazil, Iran, and the US.
Yet, how Article V is now read suggests that there is another more sensible way to interpret Article IV. This interpretation recognizes the explicit qualifications made in the NPT on exercising the inalienable right to peaceful nuclear energy. This right, the NPT notes in Article IV, must be implemented “in conformity” with the treaty’s clear strictures in Articles I and II. These two articles, in turn, prohibit nuclear weapons states “in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices,” and ban nonweapons states from seeking or receiving “any assistance in the manufacture of nuclear weapons.”
Properly understood, being “in conformity” with Articles I and II implies also being in conformity with Article III, the NPT requirement that all nonweapons states accept the imposition of international nuclear safeguards on all of their civilian nuclear activities and materials to prevent their military diversion to make bombs. Certainly a nonweapons state refusing such safeguards would be an implicit violation of Article II. Thus, the final statement of the 2000 NPT Review Conference refers to the need for nonweapons state members to exercise their Article IV activities in conformity with Articles I, II and III.
Technically, this condition is difficult to meet. Not all nuclear activities and materials can in fact be safeguarded to prevent their diversion to make bombs. Some activities, e.g., nuclear fuel making and operating large nuclear programs in hostile, noncooperative states (e.g., North Korea or Iran), cannot be inspected in a fashion that can reliably assure detection of a possible military diversion early enough to provide sufficient time to intervene to prevent the production of a bomb. Similarly, some nuclear materials are so weapons usable (e.g., highly enriched uranium, separated plutonium or plutonium based fuels) that reliable and timely detection of their diversion to make bombs is simply not possible.
This, then, raises the question: If a nuclear activity or material is so close to bomb making that it cannot be safeguarded against military diversion, is it protected as being “peaceful” under Article IV of the NPT? In the 1970s, it was hoped that nuclear fuel making in Japan, Brazil, South Africa, the Netherlands, and Germany could be safeguarded. Yet, recent discoveries of nuclear weapons usable materials unaccounted for (MUF) in Japan and the UK raise serious questions as to whether or not these assumptions were ever sound. We also know from experience in Iraq, Libya, Iran, Syria, and North Korea that the IAEA inspections system cannot be relied upon to find covert nuclear weapon related activities in states that refuse to cooperate fully with IAEA inspectors.
Many less developed states would answer, as Iran has, that the NPT’s preamble explicitly stipulates that all of peaceful nuclear energy’s benefits, including “any technological by products which may be derived from the development of nuclear explosives” should be “available” for civilian purposes to all states. This would suggest that the NPT recognizes and protects a per se right of all states to get to the very brink of making bombs.
Yet, if The NPT is dedicated to sharing the “benefits” of peaceful nuclear energy, these benefits presumably must be measurably “beneficial” and be distant enough from bomb making or the risk of being easily diverted to that purpose so that inspections could reliably detect their military conversion in a timely fashion (i.e., well before any bombs might be made). At the very least, what is protected ought not to be both dangerous and unprofitable. That, after all, is why the NPT bans the transfer of civilian nuclear explosives, only allowed the sharing of civilian nuclear explosive services on a turn key basis, and why ultimately this offer was never acted upon.
In the first term of the Bush administration, the State Department went out of its way to point out just how uneconomical Iran’s nuclear power program was. It, questioned the need for nuclear power in gas rich nations, such as Iran and Saudi Arabia. Economic analyses were conducted to determine just how uneconomical such nuclear programs were when compared to making power with readily available natural gas. This line of inquiry, however, was hardly allowed to proceed very far and was almost entirely shut off in Bush’s second term.