New Paradigms Forum Proliferation Issues and Much More …

18Apr/11Off

Still Struggling with FMCT

Note:

Below appears the text on which Dr. Ford based his remarks to the conference on “The Obama Administration and the Future of Arms Control” at Boston College on April 15, 2011.

Good afternoon, and thanks to the Political Science Association and the other sponsors and organizers of this event.  It’s a pleasure to be back in Boston.  Since I’m probably here in order to provide a somewhat skeptical perspective on the idea of a Fissile Material Cutoff Treaty (FMCT), let me try to live up to my billing by outlining some of the problems that I think beset this enterprise – and which I suspect need to be fixed, or at least addressed differently, if it is to have a promising future.

I.          The Cutoff Project Itself

The first and most basic question for FMCT is the classic twofold challenge confronting any public policy measure.  Is it substantively a good idea, and, if so, does its pursuit really represent the best use of the limited quantity of political capital, attention, and other resources presently available to the policy community?

In considering this, it’s worth remembering how little an FMCT is actually likely to do.  It would only prohibit parties from any further production of fissile material for nuclear explosive purposes.  Despite the advocacy rhetoric one often hears about how an FMCT is “essential” to keeping nuclear material out of the hands of terrorists, the treaty would not prevent countries from producing as much as they want for any purpose other than making nuclear explosives.

Nor would an FMCT prohibit additional nuclear weapons development, for surpluses of pre-cutoff material could still be fashioned into new devices with no less abandon than before.  (For the United States and Russia, by the way, the quantities of surplus fissile material are truly huge.  A number of other powers have significant stocks too.)  For this reason, the imminence of an FMCT might tend to slow or inhibit efforts to eliminate excess fissile material, or to spur rush production efforts in countries not already having such surpluses.  Such a treaty would create incentives to maintain stockpile buffers as a form of strategic “hedging” – that is, building up and keeping stocks that would permit future arsenal expansion without violating the production cutoff – and might thus actually have the ironic effect of leading to an increase in global fissile stockpiles, especially of material directly usable in nuclear weapons.

Nor, it must be said, would a universal FMCT add in any meaningful way to the substantive obligations of the vast majority of states.  All but five of the nearly 190 States Party to the Treaty on the Non-proliferation of Nuclear Weapons (a.k.a. the NPT), after all, are already obliged not to produce fissile materials for nuclear explosive purposes.

Indeed, an FMCT might even tend, in practice, to weaken nonproliferation controls by further legitimating (and thus encouraging) production for ostensibly “peaceful” purposes, prompting migration to an “alternative” set of weaker global FMCT verification standards to the detriment of the more effective Additional Protocol (AP) being promoted by the International Atomic Energy Agency (IAEA), and both replicating and encouraging states to take greater advantage of a troubling loophole in existing safeguards agreements related to sensitive non-explosive uses.

To put it bluntly, therefore, an FMCT would be interesting, important, or desirable only with regard to the five NPT nuclear weapons states and the four countries that are not presently party to that Treaty at all.  Stripped of all the CD’s symbolic fealty to ideals of massive multilateralism and universalist treaty-making, the FMCT effort is really only about freezing weapons-related fissile production in a mere nine countries – only three or four of which are probably presently producing such material anyway.

Even so, however, the FMCT remains stymied.  Lacking agreement on beginning negotiations – a consensus that is currently blocked, principally by Pakistan – the CD continues the stalemate in which it has languished since negotiating the also long-stalled Comprehensive Test-Ban Treaty (CTBT) in 1995.  The problem lies with the same reasons that have always made “freeze”-type proposals controversial: freezes seek to codify a strategic status quo, and this is only acceptable to states that do not feel threatened thereunder, or who do not for some other reason wish to change that status quoPakistan feels that a freeze on producing weapons material would lock it into a dangerous position of military inferiority vis-à-vis its larger neighbor India.  According to its ambassador to the United Nations in Geneva, an FMCT is “unacceptable” because the treaty “would only accentuate the disparity and imbalance that exists” with New Delhi.

Through this prism, it would appear that the FMCT faces a classic problem of arms control: the nature of arms competitions as being phenomena in large part derivative of problems in underlying political and strategic relationships, and which cannot in most cases be meaningfully addressed without attending to these deeper dynamics.  All too often, arms control efforts seem to get this backwards, assuming that if particular capabilities can be controlled, the underlying relationships will themselves heal.  Unfortunately, this often tends to leave arms control and disarmament efforts just tinkering around the margins, condemned to a basic degree of ineffectiveness while waiting for strategic relationships to change in ways that could make serious reductions possible.  In this regard, the FMCT’s basic substantive problem is not that it is necessarily a bad idea, but merely that it runs itself aground by trying to address symptoms without speaking to the underlying disease.

In this context, it is worth asking ourselves whether continuing to pursue an FMCT at the CD – as that body has tried to do with no result since 1995 – is the best use of whatever political capital, attention, and expendable effort is presently available to global leaders eager to make the world a safer place.  Staying the course in Geneva may be a fine way to pay one’s respects to the ideal of a global fissile cutoff, and to demonstrate politically-correct disarmament bona fides by continuing to support the venerable CD, but if one’s priority is to prevent nuclear arms races and promote international peace and security, there may be better ways to proceed.

II.        Disarmament Politics and Process

This leads me to a second problem, which one might describe as being the risk of pursuing arms control and disarmament process at the expense of its substance.  The CD agreed on a new work program in 2009 for moving FMCT discussions forward, along with discussions on outer space, security assurances, and disarmament.  With Pakistan (and to a lesser extent Iran) continuing to impede FMCT talks, however – and with plans to proceed with those other linked issues apparently also starting to unravel – the CD may now be settling in for another period of paralysis.

In light of the frustrations of this continuing impasse, there is more and more talk of pulling the plug on the CD as a means for pursuing FMCT.  Japanese diplomats have suggested trying to pursue it in some other forum, while Mexico urges making some kind of “ultimatum” to break things loose.  Canada’s Foreign Minister has urged the CD to drop its consensus requirement, and suggests developing “alternative routes to reach agreement on arms control instruments.”  Even some NGO activists now describe pursuing FMCT elsewhere as a “reasonable” idea.

U.S. officials now also seem to be threatening to pursue an FMCT elsewhere.  Assistant Secretary of State Rose Gottemoeller, for instance, says that allowing the deadlock to continue indefinitely is “not a viable option,” and that “[i]f we cannot find a way to begin these negotiations in the Conference on Disarmament, then we will need to consider options.”   Secretary of State Clinton has similarly noted that if the stalemate continues, Washington is “determined to pursue other options.”

But whereas he has voiced the opinion that “[w]e need to consider an alternative mechanism” for pursuing the CTBT, U.N. Secretary-General Ban Ki-Moon still resists taking FMCT out of the CD because “[s]uch a parallel mechanism risks weakening the CD’s relevance and credibility.”   Many participants seem to share his worries, fearing what would it mean for the credibility, and the future, of the U.N.’s disarmament body for it officially to have “failed” with an FMCT.

If the CD really isn’t the best way to make progress on a fissile material cutoff, however, the disarmament politics of the contemporary CD process may now be imperiling the substance of the issues with which that body is supposed to concern itself.  To put it bluntly, some seem to care more about the ideological “optics” of supporting the hapless Conference – that is, about not undermining the ideal of global, universal treaties as the way to pursue disarmament – than they do about actually getting a cutoff.  This is a challenge with which diplomats will have to struggle in trying to move things forward, for it is not hard to imagine that we will actually have to make a choice between getting a cutoff and “saving” the CD.

III.       Verifiability

A third issue that bedevils the FMCT – or rather, that would again bedevil it if negotiations ever started – is that of verification.  Today, verification may be something of a “forgotten” problem, but it has not gone away.

Under the original negotiating plan – the so-called “Shannon Mandate” adopted in 1995 – the CD was committed to seek a “non-discriminatory, multilateral and internationally and effectively verifiable” FMCT.  The Bush Administration concluded that such “effective verification” was unachievable, and in May 2006 opted instead to pursue an FMCT without any specific requirement for verification.   The U.S. proposal did not prejudge the ultimate question, for nothing in the American position precluded agreeing upon “effective” verification if it turned out during such negotiations that this was possible.  (American diplomats welcomed discussion of this question during treaty negotiations; they just did not think it wise to bind the CD to achieving what might well prove unachievable.)  This U.S. position was widely interpreted as an attack upon the CD and upon the idea of multilateral arms control, however, and even though the Obama Administration apparently has yet actually to rebut the arguments presented in 2006, the United States re-endorsed the Shannon Mandate in 2009.

An FMCT pursued through the Conference on Disarmament, therefore, is again required to be “effectively verifiable,” and this is sure to lead to many headaches if negotiations resume.  So is there some combination of verification measures that would enable parties to an FMCT to detect noncompliance in time to convince a violator to reverse its actions, or to take such steps as may be needed to reduce the threat presented and deny the violator the benefits of its wrongdoing?

For my part, I am still skeptical.  Let me give a few examples of the challenges.  One of the most basic problems for an FMCT relates to the difficulty of crafting a “one-size-fits-all” verification rule.  It is not clear how an FMCT verification regime would provide “effective” insight into the world’s ongoing nuclear weapons programs, nor provide adequate safeguards in non-weapons states, under a system built around the leniencies that weapons programs would seem likely to require.

The Nonproliferation Treaty handles this problem by the simple expedient of not asking to get inside the weapons programs of the NPT-recognized nuclear weapons states at all.  The Shannon Mandate, however, decrees that an FMCT must be “non-discriminatory” – presumably meaning that it cannot follow the NPT’s two-tiered approach, which is indeed often decried as being “discriminatory.”  This, in turn, means that an FMCT would probably have to adopt a “dumbed-down,” lowest-common-denominator verification standard, for it would be difficult to ensure that any measures sufficiently non-intrusive to be permitted inside weapons programs would provide a useful degree of insurance against cheating there or elsewhere.

An additional problem is that there may exist non-explosive uses that would be permitted by the FMCT, but which possessors would still consider too sensitive to be subjected to much, if any, verification.  (Naval nuclear propulsion comes to mind, but there may be others.)  The necessity of leaving such “holes” in the system would certainly reduce its “effectiveness.”  This is already the case for certain uses of fissile materials under IAEA nuclear safeguards – an exception spelled out in “INFCIRC/153” agreements, and clearly potentially subject to abuse – and an FMCT would likely highlight and generalize this weakness.

While we’re on the subject of security sensitivities, moreover, it bears mention that states may be reluctant to give international inspectors access to the particular isotopic ratios of naval reactor fuel and/or material produced for use in nuclear weapons.  This could put additional stocks of fissile material, and the details of their production, “off limits” for the verification regime.

Additionally, an FMCT regime would face many of the same political and institutional challenges that confront contemporary IAEA efforts to find undeclared nuclear activity in the NPT non-nuclear weapons states.  At present, many states reject IAEA efforts to make the Additional Protocol (AP) the standard for safeguards verification.  Nor is the AP itself all that great a solution to the problem of undeclared activities.  (The IAEA has admitted that confronted with a determined violator such as Iran, the Agency would need “transparency measures … beyond the formal requirements” of the AP in order to do its job properly.)  If we cannot win general acceptance even of the Additional Protocol, however, what chance is there of negotiating anything for a global and “non-discriminatory” FMCT that would not amount to a dilution of standards and a near-guarantee of verification ineffectiveness?

Finally, an FMCT verification regime might have technical problems as well.  Whether or not one has produced any given quantity of uranium or plutonium for one “purpose” versus another, for instance, is largely unverifiable.  A verification regime might aspire to determine whether there had been some kind of production, but except where a violator proves stupid or careless, bare claims that any and all material had indeed been produced for legitimate purposes would be hard to rebut.  And since no one imagines that a treaty would go so far as to prohibit any further use of HEU for civil power generation or reprocessing of plutonium for breeder reactors – both of which steps, by the way, might actually do more good for international nuclear security than adopting an FMCT – such verification of “purpose” would have to occur in a context in which countries would consider themselves still permitted to produce what is in effect directly weapons-usable material.

It is also my understanding that technical problems exist in dating fissile materials – problems that could impede verification efforts to determine whether material had been produced before or after an FMCT cutoff.  Generally, both uranium and plutonium are dated by measuring the proportions of isotopes that are present, on the assumption that decay products appear at predictable rates as material ages.  Fissile materials, however, can be purified or “recycled” long after their original enrichment or reprocessing.  (Indeed this may not be uncommon in weapons programs, because the short half-life of some plutonium isotopes can lead to problems if “pit” material is not chemically “recycled” to remove decay products.  It is my understanding that certain other legal and often necessary processes can also involve such cleanup, with the result that for either uranium or plutonium, re-purification could conceivably occur a number of times after the point of original production.)  This removal of decay products removes the way to ascertain the material’s date of original production, so after each cleanup, the material might look “new,” but it could in fact be much older.

This could present problems for determining whether weapons-related material (lawfully) predates or (unlawfully) postdates a cutoff.  The verification regime would thus presumably have either to prohibit all such cleanup – thus banning measures that possessors might consider essential – or to live with a system in which a violator could conceal the production date of new material by claiming that it was really older material that had just been recycled.  Particularly given uncertainties about past material production in the weapons states and the amount of material that goes missing each year through “normal” losses even in modern plutonium reprocessing, it would be very hard to know whether or not one was looking at new or old material.

FMCT proponents have for years assumed that these last two technical problems could be dealt with by imposing a general system of safeguards on all nuclear material, and simply deeming any material found outside this system to be violative of the FMCT without looking to specific details of its actual age or the “purpose” for which it was produced.  Technically, treating undeclared possession as a proxy for unlawful production might seem like an adequate answer, but this argument misses a broader political point about safeguards.

Anyone who has tried to work compliance diplomacy issues in an international setting will know that not all violations are created equal – or should be.  As U.S. arms control officials have acknowledged in past discussions of IAEA safeguards and NPT Article II compliance standards, not all things that are technically violations do, or should, raise first-order diplomatic concerns.  (For the uninitiated, by the way, Article II is the provision of the NPT that prohibits a non-weapons state from trying to develop nuclear weapons.)  Most obviously, some violations of safeguards might be inadvertent or unavoidable.  I’d imagine, for example, that one shouldn’t expect the power plants at Fukushima to be in 100 percent compliance with IAEA safeguards any time soon.

Even where improper actions are deliberately taken by someone, however, the level of concern appropriate to a violation can vary.  Both Egypt and South Korea, for instance, were found several years ago to have violated their IAEA safeguards agreements by undertaking a series of laboratory-scale uranium enrichment and plutonium reprocessing experiments.  In the absence of indications that such work formed part of a covert nuclear weapons program, however, the international community has not been too concerned, being satisfied once officials in Cairo and Seoul admitted the lapses, were scolded by the IAEA, and returned their laboratories to compliance.  The reaction was appropriately more severe with the discovery of Iran’s nuclear work, or that of North Korea a decade earlier, precisely because that work was undertaken on a huge scale and clearly is part of an ongoing effort to develop nuclear weaponry.  Details, therefore, matter: not all violations of IAEA safeguards indicate huge problems, and there is a difference between a safeguards failure and an NPT Article II violation.

The problem with the “deem it a violation if you find something outside of safeguards” answer to the technical difficulties of FMCT verification is that it pretends that such real-world distinctions don’t matter.  Under such a system, finding unsafeguarded nuclear material could indeed simply be declared a violation.  But as we have seen, not all violations are created equal.  If the system cannot provide some insight into whether that material was in fact produced after a fissile cutoff and for the “purpose” of being used in nuclear explosives, the recipients of this information will have trouble deciding what to make of it, and what do about it.  The technical difficulties of FMCT verification make it hard to distinguish a comparatively minor safeguards problem – which presumably should simply be remedied by properly accounting for newly-discovered material and taking steps to ensure against future oversights – and the grave substantive violation of materially breaching the FMCT’s core provision against producing fissile material for nuclear weapons.

At any rate, the overall FMCT verification picture seems troubling, especially if “effective” verification is again an obligatory objective.  If such challenges are not taken seriously, and adequately addressed, one could end up with an empty shell of a treaty that seems to meet an important global security need but in fact does not.  (This is why Bush officials, myself included, warned against letting the assumption that effective verification is possible create a “false sense of security.”  Better, they reasoned, to admit what verification weaknesses there turn out to be, and allow states to adjust their security planning accordingly.)  The CD’s return to the Shannon Mandate makes these problems worse, even if we do restart negotiations.

IV.       Conclusion

As you might suspect, therefore, I am not convinced that the FMCT – in its present form, at least – is an appropriate “next step” as the world struggles with the challenges of insecurity, conflict, proliferation, and disarmament.  We should not let ideologically-colored visions of the “proper” multilateral and universalist ways in which disarmament must be pursued blind us to the virtues of actually producing results, even if by less politically-correct means.  The CD’s FMCT program may not be the best way to spend scarce diplomatic and political capital.

We might get more disarmament “bang for the buck,” as it were, from spending that time and energy on trying to address the various regional or bilateral security dilemmas that affect the various nuclear weapons possessors, including by building and expanding webs of transparency and confidence-building relationships around the world.  This is often thankless work, and not always a good way to produce easily-identified documentary “deliverables” of the sort diplomats like to display in congratulating themselves on a job well done.  In the long run, however, such patient, step-by-step efforts to change relationships may do more good for international security, peace, and disarmament.

Even if we were to decide that some kind of fissile cutoff is required, moreover, we might do better to seek it in a different way.  As I noted earlier, an FMCT would be useful or interesting only to the extent that it applies to a mere nine states: the five NPT weapons states and the four non-parties.  Why make things more complicated by chasing one-size-fits-all global rules in a consensus-hobbled multilateral institution of 65 parties – especially if this could end up diluting verification standards for non-weapons states?

A couple of years ago I wrote an article in Arms Control Today exploring an alternative approach, pursuant to which FMCT would be removed from the CD and worked instead on a more improvisational basis involving as many of the FMCT “target” states as possible.  With the CD still paralyzed notwithstanding the Obama Administration’s concessions on the Shannon Mandate, this route seems to me more promising than ever.

If we could free ourselves from the ideological straightjacket of the Shannon mantra of a “non-discriminatory” and “internationally … verifiable” treaty, there would be no reason not to explore ways to limit or end weapons-related production of fissile materials by stringing together “islands” of bilateral or regional arrangements, each one tailored to the peculiar circumstances and needs of its own participants, and each deal caveated or perhaps time-limited in case some rival state refuses to “play.”  (One does not necessarily have to drag all nine of the FMCT target states to the same table at the same time, especially at first.)  Or we could begin with a simple normative text – such as the one the United States introduced at the CD in 2006 – and leave details of implementation and potential verification to be worked among the successive adherents through supplemental arrangements or separate protocols.

I’m not wedded to any particular recipe, but we should permit ourselves to be creative.  There is no law that requires us to pursue a single standard for everyone all at one time.  No matter what happens with a fissile cutoff, moreover, there is much to be said for having today’s nuclear weapons possessors do more amongst themselves to negotiate terms of mutual transparency and strategic predictability.

Don’t get me wrong.  It may be that a legally-binding fissile cutoff isn’t achievable even outside the CD.  Anyone who wants to see a reasonable chance of such a cutoff, however, may have to show more conceptual flexibility than just insisting that diplomats “try again, harder” in Geneva.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford served until December 2016 as Chief Legislative counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.
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