This article was published when I was Associate Fellow, Indian Pugwash Society, Proliferation and Arms Control, Vol IV, No. 4, June 2007
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| United Nations Security Council |
The 18 July 2005 Indo-US Joint Statement as well as the recent breaking of the deadlock at the CD and perceptible movement at the CD on the issue of a fissile material cutoff treaty has made it very important to study the nature, scope as well as the implications of any possible future fissile material cutoff treaty. In the 18 July 2005 statement India has made a very clear-cut commitment to work with the United States for the conclusion of a multilateral Fissile Material Cutoff Treaty. Secondly, there has been the recent movement at the CD with an agreement being reached on discussing a fissile cutoff treaty separately from issues like Nuclear Disarmament, PAROS, and Negative Security Assurances to non-nuclear-weapon states. The July 18 2005 committment, when taken with the likely possibility of a draft of the fissile material cutoff treaty being ready by 2010, makes it imperative to study what the treaty entails and what could be its likely implications.
This essay attempts to shed some light on the major issues that are of significance to India in the treaty. The major issues discussed are the definition of the term “fissile material,” the debate about the “scope” of the treaty with respect to production and stocks and finally the debate with regard to verification of the treaty. Another point to be noted is that whatever the scope of the eventual FMCT, it will be the five nuclear-weapon states and the three states with nuclear weapons outside the NPT (namely India, Pakistan and Israel) who will be substantively affected. As the Non-Nuclear-Weapon states (NNWS) have undertaken not to produce or acquire nuclear weapons or other nuclear explosive devices, accept IAEA safeguards on all their nuclear material, and are parties to a comprehensive safeguards agreement, they alreadysatisfy the requirements of the FMCT. Given that India possesses no hedge-stocks, unlike the case withmost other nuclear-weapon-states (de facto or otherwise), it is India that will be most affected by the conclusion of a FMCT.
Issues of Significance
Definition of Fissile Material Subject to FMCT
While arriving at definitions for the various terms of relevance to the treaty, deviations from the existing IAEA definitions should be avoided as far as possible. Non-adherence to this principle will create a situation where the existing IAEA safeguards definitions could be undermined thereby weakening the existing non-proliferation regime.
An important focus of the FMT negotiations should be on achieving a mutually agreeable definition of the term “fissile material.” This is important due to the fact that a generic usage of the term can cause misunderstanding at a later date. The Shannon-Mandate reads simply: “banning the production of fissile material for nuclear weapons or other nuclear explosive devices”. In the Treaty, it will be necessary to define the precise meaning of “fissile material for nuclear weapons or other nuclear explosive devices”. In many contributions inside and outside the CD, the term “fissile material” in the context of the FMCT is understood as highly enriched uranium (HEU) and plutonium (Pu).
The IAEA definition of HEU is uranium enriched to 20 % U-235 or more.[2] Plutonium contains varying percentages of several different isotopes. It must be noted that the IAEA does not make any legal distinction between different (Pu) isotopic compositions, except the special case of (Pu) containing 80% Pu-238 or more.[3] It is widely accepted that all other plutonium isotopic compositions could in principle be used to ignite a nuclear explosion, despite the technical difficulties that must be overcome for the construction of a nuclear warhead are varying. Therefore, in the NPT context, no legal distinction is being made between different plutonium categories, e.g. “reactor-grade” and “weapon-grade”, or “weapons usable” and “weapon grade” plutonium.[4]
Jean Du Prez in his paper written for the Weapons of Mass Destruction Commission (WMDC) cites a 1999 Technical Note of the IAEA[5] where the following definition is given for fissile materials:
“All nuclear weapons employ fission energy components. All isotopes of all elements beginning with uranium will fission when struck by a neutron, i.e., they are to some extent fissionable. The fissionability of the isotopes of a given element show marked differences (e.g., 235U is much more fissionable than 238U). Most heavy nuclei require that the incident neutron has a substantial amount of kinetic energy to induce fission, however, a few heavy nuclei will fission when the kinetic energy of the incident neutrons is essentially zero; such nuclei are said to be fissile. 233U, 235U, 239Pu and 241Pu are the most common fissile nuclides”.
Another rationale for defining the term “fissile material” is because it is also associated with materials chain-reacting with slow neutrons, i.e. materials used in power reactors. Thus, it is imperative that while defining the word “fissile” it be made clear that it does not entail stopping the production of “fissile material” for other than nuclear explosive uses. Without such a qualifier, a ban on production for nuclear weapons purposes could mean stopping the production of both commercial reactor fuel and weapons materials. Whereas it is accepted that it would be difficult, if not impossible, to change the name of the prospective treaty at this stage, it should be clear that “fissile material” should be defined as addressing nuclear materials that can be made to chain react for the purpose of a nuclear weapon.[6]
In the recent past, “new” threats have arisen to the non-proliferation regime. This entails misuse by some states of their sovereign right to peaceful uses of nuclear energy as also to the dangers of fissile material falling into the hands of terrorists. Such a possibility has provided ammunition to some critics of commercial reprocessing to propose a ban on commercial reprocessing as part of a fissile material ban. However, inclusion of civilian nuclear programs into the scope of any future treat seems highly unlikely due to two reasons. Firstly, states party to the NPT are likely to insist on the legitimacy of commercial reprocessing under Article IV of the NPT. Secondly, there exist large commercial investments and interests in continuing civilian reprocessing in some countries, including several NNWS.
Scope of the Fissile Material Cutoff Treaty:
The scope of the treaty entails namely – what materials, facilities and countries will be covered under the treaty. As has been explained in earlier sections, nowhere is the disagreement between parties to the FMCT more visible than in reaching an agreement on the scope of the treaty. There are several important issues which are highly controversial and thus difficult to reach a consensus on.
Three major issues come up as one surveys the recent debate at the CD with respect to the scope of the treaty.
· First, whether to include all weapons-usable as well as weapons-grade plutonium and uranium;
· Secondly, whether to address the issue of existing stocks of fissile materials.
· Thirdly, whether to include other materials of significance and other materials such as tritium.
At the minimum, the treaty would cover those fissile materials generally defined as weapons-grade. This means it would ban firstly, the future unsafeguarded production or acquisition of uranium enriched to over 93% in U-235 for use in nuclear weapons and nuclear explosives; and secondly, the future unsafeguarded production or acquisition of plutonium containing more than 93% of the isotope Pu-239 for use in nuclear weapons and nuclear explosives.[7] It should also be noted that under the Shannon mandate the production of even weapon-grade material will not be completely banned but could continue if it took place under international verification for non-proscribed purposes.[8]
A term that must also be defined in the FMCT is “production.” If the scope covers only an understanding that “production” means just enrichment and reprocessing, consequently the treaty text should formulate the “ban of the production of unirradiated direct use material...” which would exclude spent fuel. In case “production” is understood as also meaning irradiation in reactors, the scope should be expressed as the “ban of the production of direct-use material...” In the NPT context and IAEA safeguards, the term “production” is understood in the broader sense, e.g. it also includes the generation of plutonium in reactors which then will be a component of spent fuel.[9]
Much clarification, negotiation still has to take place over what encompasses “inclusion of stocks.” There are two extremes that have found resonance in stands taken by states. At one end of the spectrum is the proposal for a complete ban of all existing military fissile materials and at the other endis a refusal to mention any existing stocks at all. Between these unrealistic extremes, there is a wide margin of possible interpretation of what “inclusion” of stocks could mean.
The US Special Representative for Nuclear Non-proliferation, Dr. Christopher A. Ford stated that “…stocks of already-existing fissile material would be unaffected by the FMCT. The production of fissile material for non-explosive purposes also would be unaffected by the treaty. (In the judgment of the United States, it would not be possible to achieve agreement on a treaty that was not structured in this fashion.)”[10]
Verification Issues
In the Shannon Mandate the task of verification is described as an “effectively verifiable treaty.”[11] To achieve this end it is imperative that the verification mechanism be non-discriminatory, universal, and credible.” To ensure that the principles are followed in letter as well as spirit it is necessary that all rights and obligations for verification must apply equally to all member states. In other words, no material, at least that being produced after entry into force, must be diverted to nuclear weapon use, equally for all treaty members. The measures to verify this ban therefore must be the same for everybody. India has already made a statement supporting such a move saying that “the treaty should incorporate a verification mechanism in order to provide the assurance that all States were complying with their obligations.”[12]
There are two important questions relating to the verification of an FMCT which require careful consideration. Firstly, who will verify the treaty? And secondly, what kind of verification regime will be implemented? The general consensus appears to be that the responsibility should be entrusted to the IAEA. This seems to be quite a logical step due to the fact that many of the existing IAEA safeguard techniques and procedures could be directly applied to the verification of the FMCT. The question that arises out of this is whether the IAEA safeguards system is the optimum one for this purpose.
On the other hand if a new system based on comprehensive agreements could be put in place it would minimise differences in implementation in the three types of states involved: the nuclear weapon states (NWS); the de facto nuclear-weapon states (Israel, India, and Pakistan); and the non-nuclear weapon states (NNWS) under the NPT. If a new safeguards system based on comprehensive agreements between the parties to an FMCT and the safeguards agency is introduced, the question which remains unanswered is as to which agency would implement them? There has been a view that the IAEA safeguards system has short-comings and the possibility of setting up a new international agency to verify an FMCT should, therefore, be carefully considered. The safeguards system that would be evolved by the new agency would, of course, use as much of the IAEA system as is desirable and useful, and would add elements to make the system appropriate for verifying an FMCT.[13]
Dr. Barnaby and Nick Ritchie in their handbook on the FMCT propose that the characteristics of such a new agency could be borrowed from the agency designed to monitor the 1997 Chemical Weapons Convention (CWC). However, without doubt establishing a new organisation could extend and complicate (and possibly stall) the negotiation of an FMCT and possibly also delay the implementation and verification of the treaty after negotiation. Another drawback is that such a verification system could also be very expensive and create additional layers of unnecessary bureaucracy.
The statement by Dr. Ford that was referred to earlier, mentions the American stand on verification very explicitly. He states,
“…it is the conclusion of the United States that effective verification of an FMCT cannot be achieved. The United States has concluded that there is no achievable combination of verification and monitoring means and measures that would enable the United States and other parties to the agreement to detect non-compliance 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.”
The US stand is that any verification scheme for an FMCT would have to address six fundamental verification issues: (1) detection of production of fissile material at clandestine facilities; (2) monitoring declared fissile material production facilities; (3) providing for the exclusion from verification of fissile material produced for non-proscribed but sensitive (e.g., military) uses after the Treaty’s production cutoff date; (4) monitoring material declared as having been produced after the cutoff date, to verify that it is not diverted; (5) excluding from verification fissile material produced before the cutoff date; and (6) determination of acceptable end-use of material produced after the cutoff date.[14] Citing core national security concerns as well as the associated costs of implementing any such verification, the US has stated its opposition to any verification mechanism to be put in place for the treaty.
Conclusion
Given the American stand on verification, it will be quite an uphill task to include any kind of verification provisions in a future treaty. However, India has traditionally supported a verifiableFMCT. Thus, it is important for the government to carefully assess and calibrate the Indian positions on the above listed three issues, their feasibility given the positions of either the US or other major powers. It is also important to analyse the implications of the treaty in case it comes into force maybe as early as 2010.
Endnotes
[1] Victor Bragin and John Carlson, “FMCT: Some Significant divisions in the scope debate,” Disarmament Forum, no.2, 1999, pp. 29-31.
[2] International Atomic Energy Agency, IAEA Safeguards Glossary: International Nuclear Verification Series, no.3, July 2002, pp. 26-28.
[3] Ibid., p. 26.
[4] Annette Schaper, “Principles of the verification for a future Fissile Material Cut-off Treaty (FMCT),” Peace Research Institute Frankfurt, p. 3, available at http://www.hsfk.de/downloads/prif58.pdf (accessed on 16 April 2007).
[5] Jean du Preez, “The Future of a Treaty Banning Fissile Material for Weapons Purposes: Is It Still Relevant?” WMD Commission paper, no. 9, pp. 22-23.
[6] Conference on Disarmament, Working Paper: The Possible Scope and Requirements of the Fissile Material Treaty (FMT), Submitted by South Africa, CD/1671, 28 May 2002 available at http://www.reachingcriticalwill.org/political/cd/speeches02/safrfissilewpcd.html (accessed on 14 April 2007).
[7] Dr. Frank Barnaby and Nick Ritchie, “What an FMCT would look like,” in FMCT Handbook: A Guide to a Fissile Material Cut-off Treaty, London, Oxford Research Group, February 2003, pp. 30-34.
[8] Conference on Disarmament, Report of Ambassador Gerald E. Shannon of Canada on Consultations on the Most Appropriate Arrangement to Negotiate a Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices, CD/1299, 24 March 1995, available at http://www.reachingcriticalwill.org/political/cd/shannon.html, (accessed on 20 April 2007).
[9] op cit., no. 4, p. 4
[10] “The United States and the Fissile Material Cut-off Treaty,” Dr. Christopher A. Ford, United States Special Representative for Nuclear Nonproliferation, delivered at the Conference on "Preparing for 2010: Getting the Process Right", Annecy, France, March 17, 2007, available at http://www.state.gov/t/isn/rls/other/81950.htm (accessed on 21 April 2007).
[11] op cit. no. 8.
[12] Statement made by Jayant Prasad, Permanent Representative of India to the Conference on Disarmament, Geneva, 17 May, 2006, available at http://meaindia.nic.in/speech/2006/05/17da01.htm (accessed on 19 April 2007).
[13] op cit., no. 6, pp. 33-34.
[14] op cit. no.9.
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