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The Non-Proliferation Treaty Revisited
Published online by Cambridge University Press: 21 May 2009
Abstract
Today, a growing number of states are looking to nuclear power to meet their future energy needs. The technologies involved are also capable of use for military purposes. Hence the global concern to limit the spread of nuclear weapons without, at the same time, impeding the development of peaceful applications of nuclear power. The Parker Report concerning the application by British Nuclear Fuels Ltd to build a reprocessing plant at Windscale highlights the problems, legal, political and moral, that attempts to reconcile these twin aims give rise to. This article, after analysing the Report's treatment of the non-proliferation question, considers the wider international legal implications of the decision to permit the building of the plant, with particular reference to the Non-Proliferation Treaty and the anti-proliferation policies of the Carter Administration in the United States.
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References
1. Presented to the Secretary of State for the Environment on 26 January 1978, [hereinafter cited as the Parker Report]. The Report is in vol. 1, and the Index to the Report is in vol. 2. VoL 3 contains lists of documents and witnesses.
2. The proposed plant is described in the Report as THORP (Thermal Oxide Reprocessing Plant) and is referred to as such in this paper.
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4. Supra n. 1, para. 2.1.
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43. Although some of the “terrorist” scenarios involving blackmail of states with nuclear devices are more akin to a James Bond story, the possibility of ‘proxy’ theft by terrorists acting for a state is by no means far fetched; see generally, Epstein supra n. 9, ch. 19.
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55. Ibid., para. 6.12.
56. Defined in Art. DC.3 as a state “which has manufactured or exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967”.
57. I.e., both are essential stages in the nuclear fuel cycle supra p. 1 and n. 22.
58. Parker Report supra n. 1, para. 6.13.
59. See evidence of A. Wohlstetter, a principal witness for Foe, cited in Conroy supra n. 46.
60. Id.
61. I.e., in respect of transfers of plutonium authorized by those states, see supra n. 46.
62. Paras. 3 and 4 are omitted.
63. Though this expression is not defined in the NPT, the Report, correctly, it is submitted, avers that in view of the reference to IAEA safeguards, it has the same meaning as in the IAEA Statute Art. XX. This specifically refers to both plutonium and enriched uranium.
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68. Id. The Agreement referred to is the NPT.
69. Ibid., para. 6.17.
70. Id. The strict dichotomy of the “letter” and the “spirit” of a treaty is not envisaged by the rules governing the interpretation of treaties established in the Vienna Convention on the Law of Treaties supra n. 52.
71. The Japanese statement is quoted in the Parker Report supra n. 1, para. 6.18.
72. Ibid., para. 6.26.
73. See, 946 H.C. Deb.cols. 1537 (22–23 March 1978); 950 H.C. Deb.cols. 111–179, (15 May 1978).
74. Ibid., c. 1667.
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82. I.e., their spread to additional countries.
83. I.e., the further development, accumulation and deployment of nuclear weapons.
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99. Art. III 1, NPT (emphasis added). This part of Art. III is omitted from the transcription in the Parker Report.
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102. Ibid., pp. 155–156. This unsatisfactory situation was noted at the NPT Review Conference, 1975 supra n. 92; in reviewing Art. III, the Conference urged that “in all achievable ways, common export requirements relating to safeguards be strengthened, in particular by extending the application of safeguards to all peaceful nuclear activities in importing states, not party to the Treaty”.
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113. The third point in this programme is omitted from the text.
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119. Supra n. 1, para. 17.6.
120. Ibid., para. 6.33.
121. I.e., in addition to the Inspector's conclusion based on Art. IV, NPT.
122. Supra n. 1, paras. 6.24; 6.33.
123. Id.
124. Supra n. 1, para. 17.6.
125. Supra n. 111, at p. 777; Nye, supra n. 115, at p. 614.Google Scholar
126. Supra n. 1, para. 6.24.
127. Ibid., para. 6.25.
128. Id.
129. Supra n. 1, para. 6.26.
130. Ibid., paras. 6.30–6.33.
131. Ibid., paras. 6.32, 17.6.
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134. The Report instances the case of spent fuel transferred by Japan to BNFL, para. 6.28.
135. Ibid., para. 6.29.
136. Id.
137. Supra n. 1, para. 6.33.
138. Ibid., para. 17.4.
139. I.e., it would fall within the terms of Art. 62, of the Vienna Convention on the Law of Treaties 1969. Art. 62 states:
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
…(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
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141. This would be a matter to be established by reference to the relationship of the clause to other clauses, the preparatory work and the circumstances of the conclusion of the treaty.
142. Supra n. 139, para. 2.6.
143. I.e., the NPT being a multilateral treaty, the breach would fall within the terms of Art. 60 of the Viennna Convention on the Law of Treaties, which defines a material breach as a “violation of a provision essential to the accomplishment of the object and purpose of the treaty” (para. 3).
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146. Art. VIII. Admittedly, the amendment procedures are so cumbersome as to preclude any real likelihood of their being put into practice.
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149. See editorial in 272 Nature
149. See editorial in 272 Nature (23 03 1978) p. 297.Google Scholar
150. Evidence of Dr. Thomas Cochrane to the Windscale Inquiry, quoted in Conroy, supra n. 12, at p. 61.Google Scholar
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152. Supra n. 1, paras. 9.19, 17.4, 17.7.
153. BNFL did in fact make this one of its principal contentions at the Inquiry, Parker Report supra n. 1, paras. 5.6 – 5.7.
154. Ibid., para. 17.7.
155. Ibid., para. 17.4.
156. Ibid., para. 9.19.
157. Ibid., para. 9.18.
158. The summary is reproduced in Conroy supra n. 12, in Appendix 3.
159. The Times (London 25 May 1978).Google Scholar Shortly after this announcement a much smaller contract, worth 540 million, for reprocessing spent fuel from the Netherlands, was announced by BNFL: Financial Times (10 06 1978).Google Scholar The French reprocessing industry has contracts with seven countries involving a total of 5,660 tonnes of spent fuel. Financial Times (25 08 1978).Google Scholar
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161. The communique is reproduced in BULL. E.C. 718–1977.
162. The final report is now expected in February 1980: Financial Times (18 September 1979).
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164. Supra n. 1, para. 6.21.
165. Ibid., para. 6.35.
166. Dr. Owen, having adverted to the expressed wish of the US Government that the UK defer a decision on reprocessing until the result of INFCEP was known, stated in Parliament that “there is no obligation under the terms of our participation … for us to defer a decision on nuclear projects … it is not realistic just to assume that the participating Governments… will come to an agreement that reprocessing, which many of them have long anticipated is not now necessary and should be abandoned”. 946 H.C. Deb. c.1550 (22 March 1978).
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169. Ibid., c. 1665.
170. See Art. II of the Agreement between the US and EURATOM, 1958, as amended. The rationale for this exception is that EURATOM is recognized by the US as a single entity for the purpose of transfers with the Community and as having an effective safeguards system of its own. See generally, Gilensky, supra n. 151, at p. 375Google Scholar; Power supra n. 13.
171. Art. XI of the US-EURATOM Agreement makes it clear that prior US approval is required for the transfer to or retransfer from EURATOM of nuclear material supplied by the US to a non-EURATOM country.
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174. For a general appraisal of the Nuclear Non-Proliferation Act 1978, see Power supra n. 13.
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178. Id.
179. Gilensky, supra n. 151, at p. 381.Google Scholar
180. Ibid., at p. 379. These problems include: the establishment of safe storage sites for both plutonium and radioactive wastes; the determination of rules for transportation of same; and, most crucial of all, selection of the criteria to govern when and to whom plutonium may be transferred.
181. Cmnd. 6615 (September 1976). For the Government's response to the Report, see Cmnd. 6820 (May 1977).
182. A term that the Parker Report considers “emotive and inaccurate” supra n. 1, para 7.9.
183. Supra n. 181. at pp. 74–76.
184. The Times (London 19 05 1978).Google Scholar See also, Nuclear or not? Choices for our energy future supra n. 147, at p. 198Google Scholar, where in response to a question on the international management of Windscale, Sir John Hill, Chairman of the UK Atomic Energy Authority, expressed the view that “the British Government would be very reluctant to give up control of what goes on at … Windscale. However if we look ahead we might buy an island somewhere, internationally, or make an agreement that an international reprocessing plant would be built”. The notion that reprocessing be brought under the auspices of multinational or regional fuel cycle arrangements was not considered by the Parker Report. For an exposition of the case for such arrangements see Smith, and Chayes, , Institutional Arrangements for nuclear fuel reprocessingGoogle Scholar, Chayes, and Lewis, eds. 1979.Google Scholar The Ford-Mitre Report expressed scepticism about multinational reprocessing supra n. 20, at pp. 381–82.
185. See 946 H.C. Deb. c. 1550.
186. 272 Nature (23 03 1978) p. 301.Google Scholar
187. The phrase used by Anthony Wedgewood Benn, Secretary of State for Energy in the Callaghan Administration, to describe the well-organized scientific and industrial lobby for nuclear power: 940 H.C. Deb. c.972 (2 December 19701.
188. See Marshall, , Nuclear Power and the Proliferation IssueGoogle Scholar, (Lecture given at the University of Glasgow, February 1978), reprinted in 258 Atom (1978) p. 78.Google Scholar See also reported remarks of the Secretary-General of the IAEA at its 1978 General Conference, Financial Times (19 09 1978).Google Scholar Compare Epstein, supra n. 9, at p. 17Google Scholar: “… in the case of France and India … the development of nuclear explosives followed and was made possible by the development of rather advanced peaceful programs. It is quite likely that the latter experience will become the pattern of the future”.
189. Dr. Walter Marshall, (Deputy Chairman of the United Kingdom Atomic Energy Authority) supra n. 188, at p. 2.
190. Id.
191. For affirmation of the view stated in the text see, Report of the Acheson-Lilienthal Committee on the International Control of Atomic Energy 1946 supra n.12; and Feld, , “Plain Talk about Nuclear Proliferation”, 35 Bulletin of the atomic scientists 4 (01 1979).CrossRefGoogle Scholar
192. Gilensky, supra n. 151, at p. 384.Google Scholar
193. See Greenwood, supra n. 24, at pp. 174–75.Google Scholar
194. Seen. 93 supra.
195. Quoted in The guardian windscale supra n. 97, at p. 91.Google Scholar
196. For example, in 1979, Iran and India underwent a change of government. In the former case it produced a shift towards anti nuclear energy policies involving cancellation of contracts for the construction of nuclear reactors by France and the Federal Republic of Germany: The Guardian (18 04 1979) (31 July 1979).Google Scholar In the case of India, the fall of the Desai Administration, which was committed to a strict policy of non-military uses of nuclear energy, has led to speculation that this policy may well be reversed should Pakistan detonate a nuclear device: The Guardian (16 08 1979).Google Scholar
197. New, cheap and therefore less-proliferation proof methods of enriching uranium to weapons-usable levels are, according to recent reports, not far away from being realized. Examples are enrichment by laser and the “jet nozzle” process being developed by South Africa: see Fishlock, , “A cottage industry nuclear bomb”, Financial Times (10 05 1978)Google Scholar; Cervenka, Z. and Rogers, B., The nuclear axis, (1978).Google Scholar
198. See jeports of the covert methods used by Pakistan to acquire the “know-how” and technical components necessary for the construction of a uranium enrichment plant: The Guardian (22 06 1979)Google Scholar; Financial Times (22 08 1979).Google Scholar The United States has applied several counter-measures against Pakistan including the cutting off of all economic development aid: Financial Times (11 04 1979)Google Scholar; The Guardian, (13 08 1979).Google Scholar