June 18, 1994

STATEMENT BY MR. THOMAS GRAHAM, JR., ACTING DEPUTY
DIRECTOR U.S. ARMS CONTROL AND DISARMAMENT AGENCY
BEFORE THE U.S.-JAPAN STUDY GROUP ON "NONPROLIFERATION
AND ARMS CONTROL AFTER THE COLD WAR"

"1995 NPT Extension Conference"

Thank you for inviting me to address this distinguished group on a topic that during my career at ACDA, and most especially this last year, I have come to know extremely well: the Nuclear Nonproliferation Treaty, or NPT. In only 10 months the NPT parties are to meet in New York to decide on the future of this essential nonproliferation instrument. Last year, I was designated by ACDA Director John Holum to head the U.S. effort to prepare for the 1995 NPT Conference and to achieve the extension of the NPT at that Conference. I took on this responsibility with great pleasure, but with a keen awareness of the challenges involved in working to ensure a successful extension outcome in 1995.

Article X.2 of the NPT explicitly provides that, 25 years after its entry into force, the parties will meet "to decide whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period or fixed periods." For many states, including the United States, this conference will be the most important event in the life of the NPT and will determine not only that Treaty's future, but the future of the entire international nuclear nonproliferation regime. This is the one opportunity the parties will have to make the NPT a permanent part of the international security framework, the one and only opportunity to extend the NPT and give it the same duration that all other international arms control treaties and conventions enjoy. I will try to demonstrate here why the United States believes the parties should take such a decision.

The Importance of the NPT

We all have witnessed over the past several years the tremendous changes that have swept the world. The former Soviet Union collapsed bringing an end to the Cold War; Germany reunited; Iraq mounted an unsuccessful bid for regional hegemony; Israel and the Palestinians signed a peace agreement; apartheid collapsed in South Africa and a new, majority regime came to power; to mention only a few. The pace and nature of these changes could not have been predicted just a few years ago.

What is clear now, however, is that the old East-West competition no longer dominates the geostrategic landscape. Rather, regional rivalries and instability constitute the major threat to international security. Given the potential for the proliferation of weapons of mass destruction, particularly nuclear weapons, these regional rivalries have become significantly more dangerous.

The threat of nuclear proliferation is certainly not new. In the early 1960s there were predictions that there could be 30 nuclear weapon states by the 1980s and 50 by the 1990s if the international community took no action to prevent the spread of nuclear weapons. But the international community did take action, negotiating the NPT and taking other steps; and the very limited spreading of nuclear weapons capabilities over the past 30 years is testimony to the efficacy of the intemational nuclear nonproliferation regime established as a result of concerted policy efforts by a large majority of the world's states. One can scarcely imagine how dangerous the post-Cold War world would be had these efforts failed.

The NPT, first and foremost, is the cornerstone of the international nuclear nonproliferation regime. It has stood for nearly twenty-five years as the primary legal and political barrier to the further proliferation of nuclear weapons. The NPT is the only nuclear nonproliferation instrument that is global in scope, and as such it reflects an international norm of nonproliferation that has helped to isolate states outside the regime which have persisted in their efforts to acquire nuclear weapons. Its entry into force in 1970 transformed the acquisition of nuclear weapons from an act of national pride to one contrary to international law. The Treaty codifies a standard of acceptable international behavior against which the actions of those states outside the regime are measured and it provides a basis upon which the international community can act when faced with direct challenges to the NPT and to the nonproliferation norm.

The NPT has helped create a framework in which to address regional proliferation problems and promote regional security and stability, thereby irrefutably enhancing the national security of its respective states parties. In addition, the NPT provides a solid foundation on which regional nonproliferation arrangements can be negotiated, as in the case of Africa, or further strengthened, as in Latin America.

In this role, the NPT can be seen as an essential contributor to peace and stability in Northeast Asia. You need no emphasis from me on the dangers inherent in a North Korean nuclear weapons program. It is the NPT that offers the legal basis for our attempts to assure safeguards are adequately maintained on North Korean nuclear activities, and, perhaps even more importantly, it is the NPT that provides the normative foundation for our efforts to bring together the international community in pressing North Korea to abide by its nonproliferation obligations.

The NPT is also a necessary support to the worldwide regime for the development of peaceful uses of nuclear energy under effective international safeguards. The NPT requires all non-nuclear-weapon state parties to conclude a full-scope safeguards agreement with the IAEA. Moreover, by law, the U.S. may not engage in nuclear cooperation with any country that does not have in place a full-scope safeguards agreement with the IAEA. This policy has been adopted by all major nuclear supplier states. Were the NPT to end, the basis for such safeguards agreements would also end, and a fundamental basis for peaceful nuclear cooperation would be severely undermined, if not destroyed.

Finally, one of the most important benefits of the NPT is that it serves as a foundation upon which other vitally needed measures of nuclear disarmament can be built. This is also one of the most compelling reasons to extend the Treaty indefinitely. The progress ongoing in the arms control arena is unprecedented and is due, in no small part, to the stable international environment which has been facilitated by the NPT. The NPT's call for an end to the nuclear arms race has been met. The United States and Russia are now pursuing arms reductions as rapidly as is technically possible. The U.S. is destroying nearly 2,000 nuclear weapons a year and Russia is pursuing a similar policy.

The NPT remains a living, dynamic document. There are currently 163 parties to the NPT, including all five declared nuclear weapon states -- U.S., U.K., Russia, France and China. More countries have joined the NPT than have joined any other arms control treaty in history; this reflects the widespread and consistent appeal of the goals and objectives of the NPT. The newest adherents are Kazakhstan, which joined on February 14, and Georgia, which did so on March 7. They joined Belarus, Armenia, Azerbaijan, Uzbekistan and the Baltic States from the former Soviet Union in becoming Treaty parties.

The Extension Decision

Given its centrality to global peace and security, it is important that the NPT parties understand the constraints built into the Treaty and the parameters within which the extension decision in 1995 must be taken. As I noted in beginning my remarks, the Treaty explicitly provides that parties in 1995 will meet to: "decide whether the NPT shall continue in force indefinitely or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty" The decision taken by a majority of the parties in 1995 is immediately legally binding on all parties no matter how they voted and without reference to national parliaments. This is possible because the decision mechanism is built into the Treaty. A review of the Treaty's negotiating history suggests that the treaty negotiators deliberately formulated the language of Article X.2 to restrict the extension to three options, and when states joined the NPT, they accepted the 1995 provision and are bound by it, but are bound by nothing more.

Despite the Treaty's precise language, some have suggested that the decision in 1995 is a political one and that the parties should thus be allowed to take whatever decision they like in 1995, regardless of whether it conforms to the options set forth in the NPT. While political views will certainly play a role in 1995, it is irresponsible -- even dangerous -- to suggest that treaty parties could ignore the very real legal aspects of the NPT. When an important new legal obligation is imposed on the parties pursuant to a Treaty provision, but without further ratification by national parliaments, that provision must be narrowly construed. This is a fundamental rule of legal construction. In 1995, NPT parties must choose one of the three options pursuant to Article X.2 in order to extend the Treaty. The conference is not authorized to take some other extension option.

One extension proposal that has been mentioned within the NPT community would have the parties in 1995 decide to extend the NPT under the same conditions as those governing the 1995 NPT Conference, that is, for another 25 years followed by another extension conference at which the parties would consider the three options available in 1995. This amounts to extension for a single fixed period to be followed by an extension conference. However, the 1995 conference is not authorized to choose this extension option, as the Treaty makes no reference to the convening of another conference like that which must be convened in 1995. just as the negotiators did not authorize the Conference to condition the extension decision on some other development such as the conclusion of a Comprehensive Nuclear Test Ban Treaty (CTBT) or the elimination of nuclear weapons, the conference is not authorized to adopt another open-ended extension mechanism.

The only way to accomplish any of this sort of proposal would be to amend the Treaty. The Treaty states that any amendment to the NPT must be approved by a majority of all states to the Treaty, including by all five nuclear-weapon states and all other parties which are then-members of the IAEA Board of Governors. At a minimum, given that there are 163 parties to the Treaty, this would require ratification by eighty-two countries. Eventually, all states parties would have to submit the amendment to ratification procedures for it to take effect for them. Given these unusually cumbersome constraints, it is not realistic to consider amendment as an option in discussing the future of the NPT. Even with the best intentions, to collect the ratifications of more than half of the parties could take years; this in turn could seriously undermine the entire international nonproliferation regime which is based so fundamentally on the norm established by the NPT. And even if all Treaty requirements were met to bring the amendment into force, the extension amendment would only apply to the states which actually ratified it, giving many states an easy out.I do not believe that serious NPT supporters should consider any option requiring amendment of the Treaty as a practical or acceptable outcome.

There is also a debate taking place regarding the Conference's authority to attach conditions to the extension decision. For example, there are some who suggest that the extension decision be linked to the completion of specific arms control measures or to other actions that would amount to new substantive commitments on the part of the treaty parties. There are obvious dangers to such an approach and the precedent it could set.

By no means do I wish to suggest less than full support for other arms control efforts now in progress. We are pursuing a comprehensive test ban with great vigor; we are working to create a fissile material cutoff agreement; we are seeking ways to strengthen confidence in the security assurances provided the Treaty parties by the nuclear weapons states; and we remain committed to nuclear disarmament by Article VI of the very NPT I am speaking of today. But I firmly believe that the NPT must be considered on its own merits and not be held hostage to some other arms control measure. During the negotiation of the NPT, the issue of such linkage was considered and rejected as inappropriate. While treaty parties will certainly consider a number of factors in deciding which extension option to support, they must not attempt to expressly condition the extension decision. Nor can the conference adjourn itself for a lengthy period of time in lieu of taking a decision on extension, as this would amount to a circumvention of Article X.2.

Another proposal that draws on the "series of fixed periods" extension optionrecommends that the Treaty be extended for a series of X year periods with some transition mechanism agreed to move from one period to the next. For example, it is suggested that the decision could stipulate that the periods would succeed one another automatically unless a majority of parties agreed otherwise. In my view, this proposal could conform with the provision in Article X.2 for extension for additional fixed periods. Without some mechanism, however, to move from one period to the next, the "series of fixed periods" option would be no different from a single fixed period extension. While there does exist some ambiguity as to what would constitute an acceptable transition mechanism, even here it is possible to determine the parameters of what would conform with the negotiators'intent. Renewal absent a decision by a majority of the parties to terminate could conform. Convening another extension conference which would offer a range of extension options, or any other mechanism which would be open-ended and which would not provide the definitive decision in 1995 contemplated by Article X.2, would not.

Indefinite Extension

The United States strongly favors an indefinite extension of the NPT in 1995 as the best way to ensure the continued viability and dependability of the international nonproliferation regime. Given the important and irreplaceable role the NPT plays in facilitating and enhancing global and regional security, the U.S. strongly believes it should be extended indefinitely and unconditionally. In addition to ensuring that the NPT's contributions to global and regional security continue, a strong and permanent NPT would be an important source of leverage over those states outside the nonproliferation regime to join the NPT or adopt other measures to conform with established nonproliferation norms. The nearly universal support that now exists for the NPT is a formidable political force against parties that have not complied with their NPT obligations.

Further, by making the NPT a permanent part of the international security structure we would ensure that it continue to serve as a stable foundation upon which other vitally needed measures of nuclear disarmament can be built. Progress in other areas of arms control can only be achieved in a stable world; nuclear nonproliferation is essential for stability; and a permanent NPT is essential to the viability of the nonproliferation regime.

I would like to conclude my remarks here today by emphasizing a critical aspect of the extension decision: its singular nature. 1995 offers, as a practical matter, the one and only chance for NPT parties to take a decision on extension which will be legally binding on all NPT parties, whether or not they support the decision, and that will not require ratification by national parliaments. A new extension decision taken sometime after the 1995 Conference could only be accomplished through treaty amendment, which as I have noted is highly impractical. It is worth noting that it took nineteen years for the original ninety-eight signatories of the NPT to ratify their decision. It is likely that any effort to amend the NPT, even for such a necessary purpose as extending its life, would fall victim to the processes by which such amendments would need to be agreed to by national parliaments.

We are, therefore, at a crucial point in the history of the nonproliferation regime. If we achieve indefinite extension next year we will have the NPT as a tool of peace and stability to help us through the post-Cold War period. If we do not, the treaty could be lost forever, and we could face the most disturbing consequences imaginable for global and regional security.