The Obama Administration yesterday released its Nuclear Posture Review Report (NPR), which establishes “U.S. nuclear policy, strategy, capabilities, and force posture for the next five years to ten years.” The 2010 NPR becomes the third official high-level review and the first one to be entirely declassified. The NPR’s key objectives emphasize prevention, no new nuclear weapons, no new nuclear testing, and strategic options for deterrence. For the first time, prevention is given top priority. One of the key elements of prevention, identified in the Review, is the strengthening of international law and its institutions to ensure nuclear security worldwide. The Review calls for bolstering the Nuclear Non-Proliferation Treaty (NPT) as the centerpiece of the nuclear nonproliferation regime; pursuing ratification and early entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT); seeking negotiations on a verifiable Fissile Material Cutoff Treaty (FMCT); and creating new frameworks for treaty noncompliance enforcement and international nuclear energy cooperation. The NPR states the International Atomic Energy Agency (IAEA) must be given additional financial resources and stronger verification authority to deter and detect safeguards violations.

The release of the NPR occurred two days before the signing of a new U.S.-Russia arms reduction treaty and six days before President Obama’s Nuclear Security Summit in Washington, D.C. on April 12-13, 2010 during which 43 heads of state will address the clandestine proliferation of nuclear material and nuclear material trafficking. It also comes less than one month before the next five-yearly NPT Review Conference of the States Parties, to be held at the UN Headquarters in New York on May 3-28, 2010.

Special Event Notice – If you are in Washington, D.C., please join us for a luncheon on May 13 from 12 noon to 2 pm at ASIL’s Tillar House to discuss U.S. nuclear policy. Speakers will include Ambassador Tom Pickering, former U.S. Ambassador to the United Nations, and Frank Gaffney, former U.S. Assistant Secretary of Defense and President of the Center for Security Policy. David Birenbaum, a Woodrow Wilson Center Senior Policy Scholar, will serve as the moderator. The event is co-sponsored by the American Society of International Law and the United Nations Association.

For readers unfamiliar with the treaties or the relevant international institutions, I have included background information and additional treaty resources on nuclear nonproliferation at the end of this posting.

Nuclear Non-Proliferation Treaty (NPT)

In the NPR, the Obama Administration announces its commitment to “pursue rigorous measures to reinvigorate the Nuclear Non-Proliferation Treaty (NPT)” and outlines U.S. expectations for the ‘grand bargain’ of the NPT. The Administration also calls for consequences for non-compliance and emphasizes the need for effective verification measures. These statements bode well for a successful upcoming NPT Review Conference, in contrast to the 2005 NPT RevCon, which began without an agenda and ended without consensus because the parties could not agree on any substantive issues. In fact, the States Parties in 2005 could barely agree on which substantive issues to discuss. The blueprint of the NPR and the provisional agenda of the 2010 NPT RevCon demonstrate positive momentum and serve as harbingers of the likely adoption of some type of final resolution by the State Parties at the end of May. Yet, optimism is tempered by the reality of the historically divisive issues, which have been hotly debated ever since the first NPT Review Conference in 1975.

The Grand Bargain and Multilateral Fuel-Supply Assurances: A New International Framework

One of the main issues likely to arise is whether the United States is willing to commit to
legal guarantees for nuclear fuel supply – uninterrupted, in perpetuity, and at a reasonable price – as part of the “grand bargain.” The NPR broadly describes the Obama Administration’s vision of a new framework for international nuclear energy cooperation, including international fuel banks, multilateral fuel-supply assurances, and spent-fuel repositories. Yet, it is unclear whether multilateral fuel-supply assurances, as envisioned by this Administration, would create legal obligations. For example, according to a Congressional Research Service Report by Paul K. Kerr in 2008, the U.S. State Department characterized fuel-supply assurances in the U.S.-India Nuclear Cooperation Agreement as political, rather than legal, obligations. Further, Kerr noted that the U.S. commitments under the fuel-supply provisions in the U.S.-India Agreement were unclear. Moreover, at the 2005 NPT Review Conference, the Bush Administration introduced a proposal that asserted Article IV does not require the transfer of nuclear material as part of the grand bargain with non-nuclear weapons states without fuel cycle production facilities. Rather, according to that proposal, such transfer would be voluntary and subject to approval or denial as determined by the nuclear-supplier states. Thus, the Bush Administration’s proposal guaranteed neither continued access to nuclear fuel supplies by the non-nuclear weapon states nor reasonable pricing.

Even if the fuel-supply assurances would create legal obligations, it is unclear whether such assurances will appease some non-nuclear weapon states who see any restrictions on their ability to develop domestic fuel cycle production facilities as an effort by the greater nuclear powers to place the “have nots” at a perpetual security and economic disadvantage and an impingement on their “inalienable right” to peaceful energy under Article IV. Notably, the 2010 Provision Agenda includes debate on how the “inalienable right” of states to nuclear energy for peaceful purposes under Article IV relates to Article III and the preambular paragraphs 4-7.

The United States is one of the sponsors of a Working Paper on the Multilateral Nuclear Supply Principles of the Zangger Committee, submitted for consideration at the 2010 NPT RevCon. At the time of this posting, the link to the Working Paper on the NPT Revcon website was not working. I also could not find the Working Paper on the Zangger Committee’s website. The NPR does not mention the Zangger Committee, which was formed after the NPT entered into force and includes all five nuclear weapon states recognized by the NPT.

Consequences for Treaty Noncompliance and Withdrawal

“It is not enough to detect non-compliance; violators must know that they will face consequences when they are caught,” states the NPR. This language likely is directed in the immediate to Iran and North Korea; the United States asserts they have defied UN Security Council directives related to their nuclear activities and have pursued missile delivery capabilities. The legal tools to deal with noncompliance, however, are limited because the NPT contains no enforcement provisions. As such, violators’ conduct largely must constitute actionable violations within the jurisdiction of the UN Security Council under the UN Charter or enforceable provisions of other treaties to which they are parties. In the absence of legal consequences under the NPT, can nuclear deterrence succeed?

The NPR also states, “Moreover, states that violate their obligations must not be able to escape the consequences of their non-compliance by withdrawing from the NPT.” North Korea controversially withdrew from the NPT in 2003 and has been the only state to do so. For a good overview, read “North Korea’s Withdrawal from the Nuclear Nonproliferation Treaty” by Frederic L. Kirgis (ASIL Insights, 2003). Article X of the NPT currently requires States Parties to provide 3 month notification before withdrawal and imposes no specific penalty for noncompliance with this provision. The notification period is intended to allow the parties time to negotiate a solution and prevent the State from withdrawing. Still, the perceived consequences were sufficient enough to prompt North Korea to defend its withdrawal as consistent with Article X. North Korea argued that the 3 month period does not need to be continuous and can be satisfied by aggregating the days from multiple notification time periods.

For more on noncompliance, read the statement on “NPT Articles I and II: The Threat of Noncompliance” from U.S. Ambassador Jackie W. Sanders, Special Representative of the President for the Nonproliferation of Nuclear Weapons, at the 2005 RevCon. In the statement, Amb. Sanders identifies the need for export controls, the criminalization of WMD development and its delivery systems under domestic laws pursuant to UN Security Council Resolution 1540 adopted in 2004, affirmation by States Parties to report instances of noncompliance to the Security Council, and agreement by States Parties that Article II’s prohibitions apply to precursors of nuclear weapons, including mock-ups.

“Negative Security Assurance”

The NPR reiterates the United States’ position with respect to a “negative security assurance” to non-nuclear weapons states. In exchange for those states forgoing the acquisition or development of nuclear weapons, the United States promises not to use nuclear weapons against them, provided that they are compliant with their NPT obligations. Essentially, the United States will not nuke compliant non-nuclear weapons states. Yet, the political motive is greater than deterrence. The assurance is meant to create an incentive for states to meet their obligations to report non-compliant states and to assist in the disruption of illicit trade and trafficking in nuclear technologies, materials, and their delivery systems. Such incentives seek to identify violations – by governments, within the private sector, and by individuals – such that appropriate responses may be implemented.

Comprehensive Nuclear Test-Ban Treaty (CTBT)

According to the NPR, the Obama Administration will pursue U.S. ratification and early entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT). The CTBT requires States “not to carry out any nuclear weapon test explosion or any other nuclear explosion.” It also establishes a verification mechanism with an international monitoring system. The NPR notes that U.S. ratification could encourage ratification by China and other states required for the entry into force. The treaty requires the 44 states with nuclear reactors to ratify the treaty before it enters into force. To enter into force, the treaty must still be ratified by the following nine states: the United States, China, Egypt, India, Indonesia, Iran, Israel, North Korea, and Pakistan.

Another benefit, as identified in the NPR, is the potentially persuasive force of the CTBT on non-NPT Parties, such as India, Israel and Pakistan, not to conduct testing. If all the NPT-recognized nuclear weapon states would prohibit testing, non-NPT nuclear weapon states may be dissuaded from testing based on political considerations.

The CTBT has been under consideration for advice and consent by the U.S. Senate since September 23, 1997. It is identified as treaty document 105-28. The United States became a signatory of the CTBT on September 24, 1996. As a candidate, President-elect Obama supported the ratification of the CTBT. It has been lingering in the Senate Foreign Relations Committee. There is no requirement that the treaty be re-submitted to each new Congress, so the CTBT could stay in Committee indefinitely absent political will and commitment by the Senate to ratify it.

Under President George W. Bush, the United States honored a moratorium on nuclear testing but did not want to preclude the option of future testing. One of the concerns is whether the United States can rely on the safety and readiness of its nuclear weapons stockpiles through science-based stockpile stewardship, without pragmatic and periodic field testing. For more information, read (a) CRS Report 97-1007, Nuclear Testing and Comprehensive Test Ban: Chronology Starting September 1992, by Jonathan Medalia, and (b) CRS Report RL34394, Comprehensive Nuclear-Test-Ban Treaty, updated November 15, 2006, by Jonathan Medalia.

Fissile Material Cutoff Treaty (FMCT)

The Fissile Material Cutoff Treaty (FMCT) was a proposal before the Conference on Disarmament (CD) to end the production of fissile materials used for nuclear weapons. The United States tabled draft text in May 2006, but opponents criticized the lack of verification mechanisms. At the 2007 Conference, delegates agreed to continue to pursue discussions on an FMCT treaty proposal, but little action has been taken. Thus, negotiations for the FMCT have yet to begin in the Conference on Disarmament.

Strengthening International Institutions

The Obama Administration seeks to strengthen the International Atomic Energy Agency (IAEA). According to the NPR, the IAEA “currently lacks sufficient resources and authorities necessary to carry out its mission effectively.” p. 4. Obama promises to expand financial support for the IAEA’s regular budget and will encourage other States to do the same. The NPR also calls for stronger IAEA safeguards and their enforcement.

Looking Ahead – Implementation of the NPR 2010

As with any national policy review, the strategic vision outlined in the U.S. Nuclear Posture Review 2010 will see some uncertainty during its implementation and follow-up studies. It is unclear whether the Senate will ratify the CTBT. Moreover, even if the United States ratifies it, an additional 8 nuclear states must ratify it before it can enter into force and become legally binding: China, Egypt, India, Indonesia, Iran, Israel, North Korea, and Pakistan. The FCMT similarly will require significant multilateral effort, substantial political will, and lengthy negotiations.

Further, implementation of many of the objectives in the NPR largely presumes deterrence. Yet, the 2010 NPR calls for improved U.S. conventional forces, and thus it seemingly creates incentives for adversarial States to pursue nuclear and other weapons of mass destruction.

Implementation also depends on Congressional budgetary approval to build an infrastructure to respond to emergent threats, to maintain remaining warheads over time, and to balance deployed and undeployed forces as consistent with U.S. and allied security interests.

The strategic posturing of offensive deterrence through improved conventional weapons could include increased use of drones to provide strike capabilities against terrorists armed with, or threatening to use, weapons of mass destruction. The 2010 NPR does not mention drones, but Harold Koh recently outlined the U.S. position on the legality of the use of drones under domestic and international law. Their use arguably could enhance a key Administration initiative identified in the Review: “Enhancing national and international capabilities to disrupt illicit proliferation networks.” (p. vii).

The new U.S.-Russia arms reduction treaty to be signed April 8, 2010 also demonstrates confidence-building commitments to nuclear nonproliferation.

Nuclear Threat Level

• Doomsday Clock (provides ongoing articles on nuclear nonproliferation and energy)

U.S. Nuclear Posture Reviews

• U.S. Department of Defense Nuclear Posture Review Website
• Nuclear Posture Review Report (NPR) 2010
• Nuclear Posture Review Report (NPR) 2002 – press release summary by U.S. Department of Defense
• Nuclear Posture Review Report (NPR) 1994

United Nations

• UN and Disarmament
• UN Security Council Resolution 1540: Non-Proliferation of Weapons of Mass Destruction (28 April 2004)
• UN Security Council Resolution 1887: Nuclear Security (24 September 2009)
• International Court of Justice (ICJ) advisory opinion on nuclear weapons (8 July 1996)
• International Court of Justice (ICJ) advisory opinion on nuclear weapons approved in First Committee (4 November 1999)
• International Atomic Energy Agency (IAEA)
• International Maritime Organization (IMO)

Resources Related to Nuclear Nonproliferation

There are numerous treaties. Below are a few resources to get you started.

Treaty Databases

• United Nations Treaty Collection serves as a centralized system for locating the text and status of UN and multilateral treaties deposited with the UN. A few nuclear-related treaties may be found in the Status
  of Multilateral Treaties Deposited with the Secretary-General under "disarmament,"
  but most treaties are located in the United Nations Treaty Series, searchable by
  keyword.
• IAEA Legal Agreements provides quick access to key agreements on nuclear cooperation, waste management, and nuclear accidents. IAEA serves as a depository for multilateral treaties and bilateral safeguards agreements and additional protocols. The website offers the full text of treaties, ratification status, and reservations/declarations. Country Factsheets provide an overview for each member state listing the date of IAEA membership and status across all IAEA-related treaties.
• ECOLEX is a free environmental law database offering full-text retrieval of select multilateral treaties. It is operated jointly by FAO, IUCN and UNEP and contains several treaties on nuclear liability and nuclear weapons free zones.

Major Nuclear Nonproliferation Treaties

Treaties in Force

• Treaty
  on the Non-Proliferation of Nuclear Weapons (NPT) is the most important nuclear nonproliferation treaty because of its near universality. The treaty opened for signatures on June 12, 1968 and entered into force on March 5, 1970. Nearly every UN member state is a party to the NPT. Only India, Israel, and Pakistan are not parties to the NPT. North Korea controversially withdrew from the treaty in 2003 and has been the only state to do so. The treaty prohibits proliferation and empowers the IAEA to implement safeguards. A review
  conference is held every five years, with the next NPT Review Conference in 2010. The UN Office for Disarmament Affairs maintains archives of past review conferences.
• The NPT’s export controls gave rise to informal arrangements by states to harmonize obligations. The Zangger Committee was formed after the NPT entered into force and includes all five nuclear weapon states. The Australia Group focuses on transshipping, and its scope includes nuclear, chemical, and biological weapons. The Wassenaar Arrangement promotes greater transparency in transfers of dual-use technologies, but its membership does not include China.

Treaties Open for Signatures / Proposed

• Comprehensive Test Ban Treaty (CTBT) opened for signatures on September 24, 1996. Its purpose is to eliminate all nuclear explosions. The treaty requires all forty-four countries identified as using nuclear materials for civilian or military purposes to ratify the treaty before its entry into force. The website provides a countdown for entry into force on the home page and provides a quick search function to identify the remaining required countries. Legal resources, treaty text, and documents related to the preparatory work are available online.
• International Convention on the Suppression of Acts of Nuclear Terrorism was adopted on April 23, 2005 by general consensus of the UN General Assembly and opened for
  signatures on September 14, 2005. If ratified by at least 22 countries, the Convention will become international law as the 13^th UN treaty on terrorism and the 23^rd international legal convention on terrorism adopted at either the global or regional level. It also will become the first
  international legal instrument to address the prevention of terrorism rather than the response to it.
• Fissile Material Cutoff Treaty (FMCT) is a proposal before the Conference on Disarmament to end the production of fissile materials used for nuclear weapons. The United States tabled draft text
  in May 2006, but opponents criticized the lack of verification mechanisms. At the 2007 Conference, delegates agreed to continue to pursue discussions on an FMCT treaty proposal.

Regional Agreements

Nuclear Weapons Free Zone (NWFZs) Treaties

• Antarctic Treaty – adopted in 1959, the Antarctic Treaty was the first treaty to prohibit nuclear weapons in a region.
• Latin America and Caribbean – the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean, also known as the Treaty of Tlatelolco, opened for signatures on February 14, 1967 and entered into force on April 25, 1969. The Agency for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (OPANAL) is responsible for ensuring parties meet their obligations under the Treaty of Tlatelolco.
• South Pacific – the Treaty of Rarotonga created the South Pacific NWFZ in 1985.
• South-Asia – the Bangkok Treaty
  opened for signatures on December 15, 1995 and entered into force on March 27, 1997 to create the South-Asia NWFZ.
• Central Asia – Mongolia
  in 1992 declared itself as a nuclear-free region, giving rise to the possible creation of a NWFZ of surrounding areas.
• Africa – the Pelindaba Treaty was created after the first French nuclear test in the Western Sahara. Tt
  opened for signatures in 1996 and entered into force on July 15, 2009.

Outer Space and Sea Treaties

• Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, known as the Partial Test Ban Treaty (PTBT), is related to the NWFZs treaties in its purpose to ban nuclear weapons within a specific area, but it is not a complete ban. It was adopted on August 5, 1963 and entered into force
  on October 10, 1963.
• Treaty on Principles Governing the Activities of States in the Exploration and Use of
  Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) of 1967
  prohibits the installation or use of nuclear weapons in outer space.
• Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of
  Mass Destruction on the Seabed and Ocean Floor and in the Subsoil Thereof
  (Seabed Treaty) opened for signatures on February 11, 1971 and entered into force on May 18, 1972. It prohibits placing nuclear weapons beyond a 12-mile territorial limit.