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The Non-Proliferation Treaty is Failing: What Now?
by Richard Falk and David Krieger, March 2006

For several decades now the world has been living with the illusion that the Non-Proliferation Treaty (NPT) established a functioning treaty regime that has spared the world from nuclear danger. It is an illusion partly because three nuclear weapons aspirants (Israel, India, Pakistan) have kept clear of the treaty, and suffered no adverse consequences when they developed nuclear arsenals.  On the contrary, President Bush’s proposed nuclear deal with India must be understood as a major diplomatic reward in spite of India’s crossing the nuclear weapons threshold.  And Israel has been allowed to develop a formidable nuclear weapons arsenal while the West kept completely silent.

But this is not the only concern. The NPT has generated a new set of pretexts for launching aggressive war. The invasion of Iraq in 2003 was mainly justified, in public at least, because of Baghdad’s purported stockpile of weapons of mass destruction and covert nuclear weapons program. The reality that such a stockpile did not exist, nor the program, conveys the perverse message that a country hostile to the United States might be better off with the weapons than without. Iran and North Korea certainly heard this message! And now, shifting course, the United States is leading a second charge toward aggressive war, this time against Iran, and in so doing approaching the nuclear precipice. Rumors abound that the only sure way to disable Iran’s nuclear capabilities is by attacking and destroying protected underground facilities.

And there is more to worry about. The NPT promises in Article IV as a matter of “inalienable right” full access to peaceful forms of nuclear technology for non-weapons states. Several countries, including Germany and Japan, parties to the NPT, have the technology and a complete nuclear fuel cycle, including enrichment phases, which make it possible for them to develop nuclear weapons in a matter of weeks or months. While the world is turning a blind eye to Brazil’s new uranium enrichment facility, Iran is being threatened with military attack and UN sanctions if it moves in a similar direction. This appears to be such a blatantly discriminatory application of a vital provision of the NPT as to give Iran grounds for regarding itself as free from any duty to comply. It is elementary treaty law that if an important provision is violated this constitutes a material breach that allows other parties to declare their unwillingness to remain bound by the treaty.  In any event, the treaty allows for parties to withdraw, and North Korea has already exercised this option.

If this were not trouble enough, there is another cluster of difficulties with the NPT. The nuclear weapons states, starting with the United States, have failed to uphold their obligations in Article VI to pursue in good faith negotiations on nuclear disarmament and, beyond even this, to seek general and complete disarmament. In 1996, the World Court in The Hague unanimously called upon nuclear weapons states to fulfill their Article VI obligations for nuclear disarmament.  Most non-nuclear weapons states have been upset for years about the failure of the nuclear weapons states to do so. It is time for a group of governments, as many as possible, to step up and say that we have waited long enough. It is time to say that the NPT was based on mutual commitments, and is failing as a result of the inaction of the nuclear powers.  The nuclear weapons states appear to need shock therapy.

This is not a plea for proliferation.  It is an urgent plea for phased nuclear disarmament based on a negotiated agreement, reliable monitoring and verification, and a commitment to the total prohibition of the threat or use of these weapons. Only the United States has the stature and capacity to take such a momentous step toward safeguarding its own security and contributing to the realization of a nuclear weapons free world. It also bears the responsibility for doing so. 

It is absurd to believe that we can have an arrangement whereby some states acquire and continue to develop nuclear weapons while others are punished with war for doing the same thing on a miniscule scale. This logic of the NPT in practice is to endorse double standards of the worst possible sort. It would have been treated as absurd if such an approach had been taken with respect to the treaties renouncing the right to develop or possess chemical and biological weapons. Even though some states had huge stockpiles of these weapons, the treaties were based on the equality of obligations binding on all states. Why should nuclear weapons be treated differently?

The approach of the NPT to nuclear power is also flawed. There is no way to allow this access to countries without giving them the status of being latent nuclear weapons states. The only solution at this stage is to impose a worldwide moratorium on the production of weapons-grade fissionable materials, and those materials already produced should be placed under strict international controls in all countries including our own. Additionally, an International Sustainable Energy Agency should be immediately established and generously funded to extend aid to poorer countries to develop various types of sustainable energy (solar, wind, geothermal, tidal). Such a step would both ease the prospects of a global energy crunch, and would contribute to environmental protection.

In effect, we are calling for two new treaties: a Treaty to Eliminate Nuclear Weapons and a Treaty Establishing an International Sustainable Energy Agency. These are the only initiatives that have a reasonable chance of moving us back from the terrifying edge of the nuclear precipice.   

Richard Falk is Milbank Professor of International Law Emeritus, Princeton University, and Chair of the Nuclear Age Peace Foundation.  David Krieger is the President of the Nuclear Age Peace Foundation (www.wagingpeace.org).