Challenges afoot for the NPT


With the next round of discussions of the open-ended working group (OEWG) on nuclear disarmament imminent, it may seem premature to look ahead twelve months to the first preparatory meeting for the new review cycle of the nuclear non-proliferation treaty (NPT). But a thoughtful article just published by Robert Einhorn, suggesting some improvements to NPT procedures, provides good cause to do so.

By Tim Caughley

Describing the current review process of the NPT as unsatisfactory, Einhorn writes that it ‘produces high drama and intense diplomatic activity, but rarely contributes to the strengthening of the NPT regime. All NPT parties are frustrated with it’. It is time, he believes, to try something new.

While NPT parties continue to support the treaty’s three central goals—promoting nuclear disarmament, preventing nuclear proliferation, and facilitating the peaceful uses of nuclear energy—they frequently differ on ‘priorities and the means of advancing those goals’. The cost of consensus—the traditional decision-making approach—has often been a ‘watered-down document with little prospect of having a real-world impact after the four-week conference concluded’. This is all too true: it cannot be to the advantage of either the nuclear weapons-possessing parties or the non-nuclear ones.

Rather than question the consensus rule (see later), Einhorn suggests that the next RevCon (in 2020) should still produce a final report, but of a different kind. A key portion of the report would be forward-looking and cover recommendations for strengthening the NPT and the non-proliferation regime in general. Arguments both for and against those recommendations would be summarized in the report. Individual recommendations and proposals supported by consensus would take ‘pride of place’ in the report, but those not achieving consensus would also be addressed. Specific recommendations and proposals, whether or not they enjoyed consensus, would be appended to the report, together with lists of parties that supported them.

Einhorn acknowledges that some governments will be reluctant to abandon the nothing-is-agreed-until-everything-is-agreed approach. ‘For example, a number of non-nuclear weapon states believe that the requirement for consensus helps them hold the nuclear weapon states’ “feet to the fire” on nuclear disarmament’. They assume that in order to have a consensus final document ‘the nuclear weapon states would make concessions and undertake commitments on nuclear disarmament that they would not otherwise make’. But in Einhorn’s view, this assumption is not borne out by the record. Nuclear weapon states have not compromised on their national security interests for the sake of a consensus conference outcome. Or, I would add, their record of fulfilment of some final reports—expressing hard-won consensus outcomes—suggests belated emergence of second-thoughts about impacts on those interests.

The approach suggested by Einhorn of listing supporters opens up the possibility for parties publicly to demonstrate wide approval, akin to a heavily sponsored United Nations General Assembly resolution. On the other hand, as Einhorn observes, some governments may ‘prefer no outcome document to one that includes proposals they strongly oppose, even if it were made clear that those proposals did not enjoy a consensus’.

Intriguingly, Einhorn then offers the following remark: ‘So, for example, some nuclear weapon states might not wish to see a proposal to outlaw nuclear weapons included in the final report, especially if it were included with a large list of supporters’. This reference to ‘outlaw’ brings to mind the allergic reaction of nuclear-armed states and a number of their allies to the idea of a prohibition or ban on nuclear weapons as a framework for the ultimate elimination of nuclear armaments. (As conceived by its proponents, such a framework might leave open certain details of implementation of some prohibitions for later agreement). The notion of a ban is one of a range of proposals being discussed in the OEWG under that group’s mandate to ‘substantively address concrete effective legal measures’ needed to attain and maintain a world without nuclear weapons, (a mandate that echoes the obligation in the NPT to pursue negotiations on ‘effective measures relating to … nuclear disarmament’ (article VI)).

Yet, as Einhorn himself points out, it is not clear why recording non-consensus proposals in a NPT review conference report should be viewed as problematic. Such proposals already exist: witness, it could be said, recent widely supported UN resolutions that refer (among other things) to prohibiting nuclear weapons—the humanitarian pledge, for instance. Simply noting non-consensus proposals in the outcome report of the RevCon would ‘hardly increase the likelihood of their success; nor would denying them inclusion…through failure to achieve an all-or-nothing final consensus make them go away’.

I should mention here in the context of listing strength and breadth of support for on-consensus proposals that, although the NPT rules of procedure permit voting on a proposal when all efforts to achieve consensus on it have been exhausted, the longstanding practice of Treaty parties has been strictly to avoid voting. Any efforts to challenge that custom would be strongly resisted by the nuclear-weapon states, and at a stretch Einhorn’s suggestion could be interpreted by them to be a slippery slope—a potential erosion of the consensus approach. In any event, Einhorn accepts that the tendency of diplomats to be ‘creatures of habit’ may stand in the way of reforms of the kind that he has suggested.

But the conclusion of Einhorn’s article is a salutary one. No-one, he says, can persuasively argue that current NPT RevCon procedures are serving the interests of the parties or the NPT regime.

What next? Of course, it is open to the NPT parties to refine their own procedures. I would add that if and when they do so, they may be responding not only to agitation to strengthen the Treaty’s review process, but also—if the OEWG is an accurate barometer—to growing pressures to urgently develop effective measures to promote and secure its nuclear disarmament objectives. If the inability or unwillingness of the Conference on Disarmament these past two decades to resolve conflicting security priorities, including nuclear disarmament, has been a catalyst for the emergence of the OEWG, then the NPT review process should surely also be on notice.