Radioactive Decay

In a recent Foreign Policy piece Mark Hibbs offered a unique "fly-on-the-wall" perspective into the Byzantine internal machinations of the International Atomic Energy Agency as it seeks to update its safeguards procedures for nuclear materials in various countries. Though well intentioned, it appears such ad hoc tinkering with the architecture of the Nuclear Nonproliferation Treaty safeguards system is fast running into a brick wall: many member states, citing the prerogative of national sovereignty, do not wish to extend the scope of the safeguards to which they have already agreed. And, really, no one can legally force them to.

Instead of trying to coax new tricks out of a tired old dog, what is now needed is a fresh grand bargain — an NPT 2.0 — that cuts through the thicket of the convoluted and endless eye-watering legal debates and actually brings about greater global security. One such idea would be to offer swift and truly massive arms reductions by the states that have nuclear weapons in exchange for much stricter curbs on the types of nuclear activities permitted in states without nuclear weapons. And instead of helping developing nations with just 1960s-era nuclear power as the current NPT prescribes, an NPT 2.0 could also encourage technologically advanced states to assist with energy efficiency and modern renewables.

The NPT has three main tenets, or "pillars" in the lingo: the non-proliferation of nuclear weapons and technology by all signatory states; eventual nuclear disarmament by the "nuclear haves"; and the recognition of the inalienable right of signatory states to develop and use nuclear energy for peaceful purposes. The treaty also calls upon the technologically advanced nations to promote the further development of peaceful nuclear energy in lesser developed nations. These pillars are commonly seen as a simple bargain: in the words of Ambassador Thomas Graham, Jr., "the NPT non-nuclear-weapon states agree never to acquire nuclear weapons and the NPT nuclear-weapon states in exchange agree to share the benefits of peaceful nuclear technology and to pursue nuclear disarmament aimed at the ultimate elimination of their nuclear arsenals."

Over the years, for reasons good and bad, this bargain has become increasingly skewed. Aside from the non-weaponization obligations — which apply only to states without nukes and which are ever more aggressively interpreted — the United States, and most other nuclear-weapon states, no longer appear enthusiastic about the other tenets of the NPT. To the extent that the nuclear haves are interested in disarmament, this is completely divorced from any pressure they perceive from the NPT. Such nuclear arms reductions are typically negotiated bilaterally between the United States and Russia and proceed at their own sweet pace. (Between them, the United States and Russia possess roughly 18,000 nuclear weapons — 95 percent of the world total.) This is despite the fact that the International Court of Justice interprets the NPT’s nuclear disarmament clause as a legally binding obligation — although, admittedly, it too does not impose any timeframe to accomplish this goal.

Advanced states are also no longer particularly eager to help develop nuclear energy in developing nations — and this is actually a good thing. It is a dangerous and inherently dual-use technology and there ought to be no imperative to disseminate it world-wide, as there is in the NPT. It may have been seen as a panacea technology back when color television was still a novelty, but its dangerous underbelly — in terms of safety, security, and waste — has since been amply exposed.

Basically, the NPT encapsulates some dangerous and outdated prescriptions to proliferate dual-use nuclear technology while simultaneously not really having the teeth to hold nuclear-weapons states to their disarmament obligations. The one thing that those (politically powerful) states — who also just happen to be the U.N. Security Council nations — can seem to agree on, and one of the main reasons the treaty continues to be championed by these influential nations, is that it does still provide some legal barriers to help prevent other states from building nuclear weapons. But only some.

The articles of the treaty are sufficiently vague that the actual implementation of the NPT’s "non-proliferation" and "peaceful uses" articles is done via very precise Comprehensive Safeguards Agreements negotiated bilaterally between the IAEA and individual states; more than 140 such agreements exist. These safeguards agreements spell out exactly the purpose and scope of IAEA inspections in various states. In order to preserve national sovereignty, such agreements are typically very narrowly focused and don’t give the IAEA much legal scope to carry out wide-ranging investigations into nuclear-weapons related activities.

For instance, the IAEA-Iran safeguards agreement’s "exclusive purpose" is to verify that nuclear material "is not diverted to nuclear weapons or other nuclear explosive devices." Nothing else is covered. It does not cover computations possibly relevant to nuclear weaponry, nor does it pertain to conventional weapons testing, even if such research may be relevant to nuclear weaponry. This may be why Iran feels fully justified in denying the IAEA access to its Parchin military base, about which allegations of conventional explosives work in the 1990s, possibly related to future nuclear weaponization plans, have been made. As the former U.K. ambassador to the IAEA, Peter Jenkins sums up, "it’s questionable whether all the activities for which Iranian cooperation has been sought imply with adequate credibility the possibility of undeclared nuclear material."

The limited legal authority of the IAEA to carry out inspections is definitely a flaw — from the perspective of the IAEA, at least — but such restrictions on the IAEA were purposefully introduced to preserve a measure of national sovereignty. Even if a state has no illicit nuclear work to hide it may not be comfortable with inspectors traipsing all over the country inspecting all and sundry. This restriction on the IAEA’s legal purview is similar to the limits placed upon the police. The police have a mandate to stop crime, but they do not have the legal authority to inspect your bedroom at 3am. As a society we have delimited the police’s legal authority in many ways. The same was done with the IAEA. Pierre Goldschmidt, the former deputy director of safeguards at the IAEA, summed it up well: "The [IAEA] Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting."

In order to partly redress this shortcoming, the "Additional Protocol" was introduced: this voluntary measure allows the IAEA to conduct more intrusive inspections than are normally permitted. But the operative word here is "voluntary": if nations do not want to subject themselves to enhanced IAEA inspections — such as Iran, Brazil, Argentina, and many others — they need not do so. As the IAEA itself states, without an Additional Protocol in place, "absent some nexus to nuclear material the Agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited."

Besides proposing the optional Additional Protocol to try to tamp down on illicit activity, the agency has also become increasingly reliant on intelligence information provided by third-parties to ferret out clandestine nuclear activity in certain signatory states. Unfortunately, this provision can and has been misused by third parties repeatedly, and also opens up the IAEA to accusations of politicization. There is also an obvious danger that the intelligence flow may become two-way, with the IAEA providing information to some member states’ intelligence services. This has been a problem in the past: in pre-war Iraq, members of the U.N. weapons inspection agency, UNSCOM, often provided information back to their intelligence services. David Kay, the agency’s chief weapons inspector, later admitted: "Well, I think it was a Faustian bargain. The intelligence communities of the world had the only expertise that you could use if you were unmasking a clandestine program…. I realize it was always a bargain with the Devil — spies spying. The longer it continued, the more the intelligence agencies would…decide that they had to use the access they got through cooperation with UNSCOM to carry out their missions."

Now, as Mark Hibbs reports, the IAEA seems to have unilaterally informed members that under new "State-Level" safeguards each country will be subject to a unique but also non-negotiable safeguards regimen. The entire safeguards system appears to be morphing into a bizarre extra-judicial Rube Goldberg contraption that even signatory nations don’t understand.

There is obviously a limit to how far the non-nuclear-weapon states will allow themselves to be placed under such increasingly onerous and labyrinthine (and at times, even contradictory) safeguards requirements while the nuclear-weapon states show little interest in taking their own disarmament obligations seriously. That limit is now being reached. This is not because most states without nuclear weapons have any interest in acquiring them — or even acquiring nuclear energy for that matter — but because the perception of the equitable bargain at the heart of the NPT has been destroyed. It’s simply a matter of dignity and fairness even before any legalese is parsed.

The so-called "gang of four" — George Shultz, William Perry, Henry Kissinger, and Sam Nunn — put it well: the "continued reliance on nuclear weapons as the principal element for deterrence is encouraging, or at least excusing, the spread of these weapons, and will inevitably erode the essential cooperation necessary to avoid proliferation."

So what’s the way out — what would an NPT 2.0 look like? A bold new bargain would offer a "more-for-more" deal. The nuclear-weapon states — or at least Russia and the United States, with a hefty 95 percent of the world’s nuclear weapons between them – would offer swift and drastic reductions in their weapons stockpiles in exchange for the outright elimination of nuclear fuel processing activities (such as dual-use uranium enrichment and plutonium processing) in non-nuclear weapon states.

The chief of the Air Force’s Strategic Plans and Policy Division recently argued that the United States could easily go down to 311 nuclear weapons — instead of the 8,000 or so (deployed and reserve) we now hang around our neck as "bling," out of little more than Cold War inertia. Russia and other nuclear-weapon states could also make similar dramatic cuts in their arsenals without affecting deterrence one iota. In fact, such cuts ought not be seen as a concession at all: as Prof. Martin Hellman has persuasively argued, nuclear deterrence is not risk-free — the 60-odd years of no accidental or unauthorized nuclear war only places very weak limits on how much longer our luck will hold out. Offshore oil drilling was also considered very safe for 50 years until the 2010 BP Deepwater Horizon disaster. Nuclear deterrence is perfectly safe until it isn’t. The point is that any more nuclear weapons than the absolute bare minimum entails extra risk for us — not to mention cost. It is in our own self-interest to dispose of them as soon as possible.

And, in return for such cuts, instead of individual non-nuclear-weapon states processing their own nuclear fuel, multinational fuel banks could be set-up to centralize and control nuclear material transfers. With the enormous amounts saved by slashing the budgets for nuclear weapons upkeep, the United States and Russia and other nuclear-weapon states could also help fund the IAEA to run and oversee such fuel banks. There would also be plenty of money left over for boosting the budget of the IAEA safeguards department so that it could better monitor nuclear transfers from the fuel banks in signatory nations. While certain non-nuclear-weapon states may be hesitant to give up fuel cycle activities altogether, inducements could be offered to reduce such activities to research-level programs.

A notable difference between the NPT and NPT 2.0 would have to be that the updated version would not encourage the propagation of nuclear power. Aside from a few spectacular disasters, nuclear power has been reasonably successful in most advanced nations — but only because of overt and covert government subsidies. However, these subsidies and the attendant political favoritism have in fact harmed the nuclear industry by perpetuating subpar and, in some cases, outright dangerous reactor designs.

In the United States — the biggest user of nuclear power — the industry continues to receive enormous insurance bail-outs under the ancient 1957 Price-Anderson Act, which limits the liability of the nuclear industry in case of a major nuclear accident and artificially cheapens the price it pays for insurance. As a result, nuclear power itself appears artificially cheap, one among several reasons that it continues to displace renewables and other energy sources in the not-so-free-market. If the nuclear industry had to buy its own insurance on the free-market, nuclear power — at least the current incarnations of it — would be unaffordably expensive. The Nuclear Regulatory Commission reports that many nuclear suppliers have explicitly said that "without Price-Anderson coverage, they would not participate in the nuclear industry." Another covert subsidy is that governments worldwide underwrite nuclear waste disposal.

If an industry that has benefited from massive government research and development and other subsidies for more than five decades, and which creates staggering unresolved waste disposal problems, raises proliferation issues, and poses serious risks to human health, cannot survive without government support, then perhaps it should be left to its fate in the free market.

And the same goes for all energy sources: removing subsidies and pricing all types of power right will make them all more expensive, which will encourage much needed conservation and innovation all-around. In fact, a truly free market may well come up with cost-effective and safer new nuclear power reactors, but not if the dodgy old designs simultaneously continue to be heavily subsidized. One thing that certainly does not make sense is to have a treaty to force-feed a flawed and dangerous Beatles-era technology to developing nations, as the NPT now does. Just as there is no treaty to send landline rotary phone technology to developing nations in the era of cell phones, there’s also no pressing reason to pass on outdated nuclear technology to non-nuclear-weapon states.

Nuclear power advocates often claim that the imperative of climate change argues for "zero carbon" nuclear power. But life-cycle carbon emissions from nuclear power are far from zero: the uranium has to be mined, milled, and transported, and the plant itself has to be constructed and decommissioned, and the waste disposed of — all of which are carbon intensive steps. A study published in Energy Policy found that nuclear power emits roughly twice as much carbon as solar photovoltaic, and six times as much as onshore wind farms. And as the available uranium ore grades progressively decline this equation will only worsen for nuclear.

So the current NPT provision that technologically advanced nations and the nuclear-weapon states provide nuclear know-how to lesser developed states could be augmented — or even replaced — in a NPT 2.0 by a clause encouraging the transfer of renewable energy and energy efficiency technology as well.

The bottom line is that, although the NPT has done its job well for 40-plus years, it is already many years past time to critically examine its fundamental tenets to see if they still make any sense. Nuclear power is not the panacea it was thought to be back when cars had tailfins. And the states that have nuclear weapons — especially Russia and the United States — don’t have any need for their vastly bloated and hyper-expensive nuclear stockpiles.

The 1960s-era NPT has been a swell ride, but the wheels are now coming off — we need to stop tinkering with the dangerous old jalopy and get a new, safer, ride.