|
|
|
|
Preparatory Conferences; Substantive and Organizational
Work. Procedural Issues of the Review 1995 NPT Conference
Hon. Ben Sanders *
Introduction.
From April 17 until May 12 1995, a conference will be held at the headquarters of the United Nations in New York,
to review the operation of the Non-Proliferation Treaty and to decide on its extension. This conference will be
unique in the history of multilateral diplomacy. When it was concluded, the Treaty whose past implementation will
be examined this coming Spring, and whose further duration will be decided upon, was a novel phenomenon among multilateral
instruments in the field of arms limitation. Unlike most multilateral agreements in that field, this Treaty did
not provide for an equal set of obligations for each participant. Rather, it addressed itself in different ways
to two different categories of parties: one, the large group of countries that did not have nuclear weapons at
the time who pledged not to acquire or make them, and the other, a smaller group of states who did have nuclear
weapons and who undertook to reduce and at a future time eliminate them. The balance between these two different
sets of obligations was to be created through the mechanism of periodic review and by means of the way in which
the life span of the Treaty would be extended.
In this way, the novel substance of the Treaty was given an equally innovative mechanism to support it. The conference
of 1995 will be the occasion when that mechanism will be put fully to the test. It will be a conference full of
complicated problems, both substantive and procedural. Because of the unique mixture of substance and method at
the very heart of the Treaty, the way in which things will be done at the conference will be as important as the
substance discussed. Consequently, the preparations for the conference and especially its rules of procedure become
central to the work of the conference itself. That makes the present stage of discussions in and around the Preparatory
Committee extraordinarily important.
Salient Features of the Extension Conference
This paper is not intended as a lecture on the process of extending the Treaty on the Non-Proliferation of Nuclear
Weapons. Much has been written on that subject, and more will no doubt be published before the conference opens.
Rather, the paper intends to sketch what needs to be done before that conference gets under way, and what has been
done so far. As a background for that sketch, some features of the conference should be recalled here. Even if
those are obvious, they should be carefully kept in mind.
Article X, 2 of the Treaty on the Non-Proliferation of Nuclear Weapons ["NPT"] says that "twenty-five
years after the entry into force of the Treaty, a conference shall be convened to decide whether the Treaty shall
continue in force indefinitely, or ... be extended for an additional period or periods. This decision shall be
taken by a majority of the Parties to the Treaty".
In 1992, the General Assembly adopted a resolution1 in which
it took note of "the decision of the parties to the [NPT] to form a preparatory committee for a conference
to review the operation of the Treaty and to decide on its extension, as called for in article X, paragraph 2,
and also as provided for in article VIII, paragraph 3, of the Treaty".
Every fifth year since the Treaty entered into force, on 5 March 1970, there has been a conference to "review
the operation of the Treaty with a view to assuring that the purposes of the Preamble and the provisions of the
Treaty are being realised".2 That is to say, the parties
represented at those conferences examined how the Treaty had been "implemented", i.e. been given effect,
during the five-year period just past. The upcoming conference, however, has a new element and serves a dual purpose:
it not only reviews but must also extend. Or, to put it the other way around: the conference which convenes next
year to decide for how long, and how, the Treaty should be extended, also has the character of a review conference.
That is one novel and unique element of this event that sets it apart from the four previous review conferences.
Another novel feature of this conference is that it will decide the fate of an existing international convention.
Conferences are held all the time, to devise, discuss, negotiate various treaties and conventions in the area of
arms limitation and disarmament, as they are held on countless other subjects. But as a rule, such events deal
with new treaties or they have the purpose or the practical result of adding to, or changing existing legal instruments.
But the 1995 conference will look at the way an existing treaty has functioned and, against that background, will
decide how much longer that Treaty should remain in force.
Yet a further important aspect is the requirement that the decision shall be taken not just by the delegates present
and voting at the conference but by a majority of the parties.3
That has an important consequence: to allow a valid decision to be taken, the conference must be attended by so
many delegates of parties to the Treaty, that the number of people who express themselves at the conference in
favour of an extension for a particular period or periods represents a majority of the parties to the Treaty. That
number now stands at 168. The decision therefore must be taken by at least 85 delegates. Unless the decision is
taken by consensus - that is to say: there is no vote, and thus everyone attending may be taken to be in favour
of the solution proposed - this assumes that attendance at the conference will have to be better than it has ever
been in the past. In 1975, the NPT had 96 parties; the review conference was attended by 58 of them and a majority
of the parties would have been 49. In 1980 the Treaty had 114 parties; the review conference was attended by delegates
from 75 states parties; it would have taken 58 of those to form a majority. In 1985 the number of attendees was
86, while the number of parties to the Treaty had grown to 130; 66 would have been the requirement for a majority.
And in 1990, out of 142 parties 84 attended; of those, 72 would have had to vote for a decision. Obviously, it
would have been difficult, not to say impossible, on any of those occasions to get a majority of the states parties
for any given decision. This makes it important that the 1995 conference should be attended by as many delegations
as possible.
The language of article X, 2 hides still another important element: the majority decision will bind the other parties:
not only those who stayed away, but - as in any democratic voting process - also those voting against. To give
another numerical example: if two thirds of the present 168 parties, or 112, attend, and 56 stay home, and 86 delegations
decide to extend the Treaty indefinitely, then not only the 26 present at the conference, who had not voted with
the majority would be bound by the decision but also the 56 who stayed away. The future of their Treaty will be
decided without them and they have no choice but to accept, unless they take the far-reaching decision to withdraw
from the Treaty.
A significant aspect of the conference - although held at UN headquarters and served largely by UN staff - is that
it is not a United Nations conference. It is the parties to the NPT who have called for it, who run it, who appoint
its Secretary-General and who pay for it. This means that parties take responsibility for the way the conference
is run, and also that they can adopt any operating procedure they consider appropriate.
Obviously, then, it is essential that the conference should be well-prepared. But it is just as obvious that those
preparations are not easy.
The Nature of the Preparatory Process
Preparations for the conference take place on three levels:
First, there is the Preparatory Commission, which works out the procedures, drafts the agenda, suggests the allocation
of items to various committees of the conference, works out rules of procedure for the conference, chooses the
subjects on which background documents are prepared and indicates what should be in them, and generally tries to
settle in advance the problems it sees arising at the conference. Most of these decisions are of course suggestions
for the conference, which is the final arbiter on the way it will proceed.
Secondly, the Secretariat must make all practical preparations: from finding accommodation for the meetings, engaging
conference staff, interpreters and translators, preparing documentation, and drawing up the budget, to servicing
the sessions of the Preparatory Committee and any subsidiary bodies it sets up. The Secretariat is responsible
for the logistics of the preparations and supports the officers of the Preparatory Committee as much as they can.
Thirdly, each of the parties must actively prepare for the event. In the first place each party should get ready
to participate in the conference: it has to select a team of officials and advisers who will represent the country
at the conference or who will remain at the capital to issue the instructions for the team, both before and during
the conference. All concerned must familiarize themselves with the nature of the conference and the issues that
will play a role there. They must read the extensive literature that exists on the Treaty, go through the documents
of previous NPT conferences and attending brief conferences like those given by regional groups and international
governmental and non-governmental organizations like my own Programme for the Promotion of Nuclear Non-Proliferation
(PPNN).
That, in a way, is an inward-directed activity. Countries also have to prepare in another sense, outwardly, by
consulting with each other, one-on-one and in groups, elaborating joint approaches and agreeing on policies. But
they also need to listen to the views of other groups, to see how they might mutually attune their approaches,
adjust to each other, agree on major issues. Some countries will try to lobby for their points of view. It is an
essential tasks for states during the preparatory period to seek all the information they can get on others' attitudes,
consult with their friends, listen to their opponents, and study ways of coming to accommodations even before the
start of the conference proper.
All three levels of preparation - by the Preparatory Committee, by the Secretariat and by each of the participating
parties - coincide and overlap - none is possible without the others. All three categories of activity have to
be carefully coordinated, especially because the preparations for this conference demand much inventiveness and
improvisation.
Civil servants, whether national and international, like any diplomat, try to rely as much as possible on precedent:
there is no need to invent new working methods when such methods already exist. Practice proven in experience is
usually more effective than improvisation; precedent flexibly applied may help one to find one's way even through
uncharted terrain. However, in the case of the 1995 conference, we face an unprecedented event. There may be situations
where it is appropriate to extrapolate from solutions found for kindred problems. But there will also be many aspects
for which there are no established rules. That means that new rules will have to be devised. Doing so will require
all the inventiveness and foresightedness that those involved in the preparation can muster.
One must expect the unexpected: novel situations will arise, for which the conference should be prepared to find
solutions. Just to mention some situations that have been mentioned during the preparation process and in various
academic meetings held on the fringes of that process: What happens if there is no clear majority for a given period
of extension? Does the Treaty remain in force? If so, for how long? Should a new meeting be called? What if there
is such a new meeting, but this does not attract the majority of parties? What if the new meeting again cannot
reach a clear-cut decision? What happens in the case of a tied vote?
It may not be possible during the preparatory stage to find solutions for each situation that may arise. It may
not even be possible to imagine every exigency that may occur. It is important, however, to try, and to devise
procedures that permit the conference to deal with the problems at hand, without giving undue advantages to one
side or the other in any contentious situation. For, indeed, procedural problems usually arise from disagreements
over substantive issues and the actions to be taken in their regard. Most procedural questions reflect substantive
dissension. Good rules of procedure are those that set the stage for objective solutions.
Developing procedures of that quality, however, calls for close cooperation and goodwill at the preparatory stage,
especially within the Preparatory Committee. During the three session which the Preparatory Committee has held
so far, that close cooperation and goodwill have not always been in evidence, especially with regard to the Rules
of Procedure, more particularly those draft rules that pertain to the extension process and the relationship between
decisions on review and extension. Yet, if the conference is to have any productive issue, this matter must be
settled.
The problems that will face the conference are the dream of international lawyers. Regardless of the way in which
they are settled, they will provide material for learned dissertations in years to come. This paper is not intended
to discuss such problems in detail, but to discuss how to create conditions where problems may be solved and choices
can be made. Whatever the lawyers say, the wishes of the participants will decide. It is the preparations for the
conference that must make it possible for decisions to be taken there and facilitate the talks leading up to them,
and in that way create conditions for the conference to become a success.
Progress So Far: the Preparatory Committee
a. The First Session
The Preparatory Committee for the 1995 conference of the Parties to the Treaty on the Non-Proliferation of Nuclear
Weapons held its first meeting in New York in May, 1993. It was attended by representatives of 128 states. Its
main achievements were to set the dates for the conference as 17 April-12 May 1995 and the venue as New York and
its decision to hold three more sessions, each of one week: on 17-21 January 1994 in New York; 12-16 September
1994 in Geneva and 23-27 January 1995 again in New York. Its chairman was Jan Hoekema of the Netherlands. As chairman
for the second session it elected Ambassador André Erdös of Hungary. Nigeria was nominated to chair
"a future session". There was no decision on the chair of the fourth session. Among further procedural
questions the Committee discussed was whether decisions should be taken by consensus or whether voting should be
permitted, and the possibility of attendance by representatives of non-party states and non-governmental organizations.
These matters, as well as the rules of procedure, the agenda, and the final document(s) of the conference itself,
and the background documents to be prepared for the conference, were deferred for later decision.
During the session, the Group of Eastern European States announced its endorsement of the candidacy of Poland for
the Presidency of the 1995 conference. On behalf of the Non-Aligned Movement Indonesia informed the Committee of
the candidacy of Ambassador Jayantha Dhanapala of Sri Lanka for that function.
b. The Second Session
The second session was attended by representatives of 114 parties. Reverting to the issue of the Presidency, after
Poland, which had not nominated a candidate by name, announced the withdrawal of its candidature, the Committee
unanimously endorsed that of Ambassador Dhanapala. The Committee decided that its third session, would be chaired
by Ambassador Isaac Ayewa, Deputy Permanent Representative of Nigeria to the United Nations in New York. The second
session was again largely devoted to procedural matters, both pertaining to the Committee's own work and that of
the conference. On the matter of decision-taking, which had been extensively discussed at the first session, in
the words of its Progress Report, it `...decided to make every effort to adopt decisions in accordance with the
rules of procedure of the Fourth Review Conference.'
Another subject of debate had been the representation of states non-parties and of non-governmental organisations
(NGOs) at sessions of the Preparatory Committee. The Committee agreed to allow representatives of non-party states
to attend as observers at those of its not designated as closed, and to receive and submit documents. It further
agreed to permit representatives of NGOs to observe open meetings of the Committee from the public gallery and
during the third session to hold a briefing `on the margins of the Committee's deliberations', i.e., in the UN
building in Geneva but not to the Committee as such.
No agreement was reached about the rules of procedure. The Committee set up an informal working group, which considered
a number of suggestions from Committee members and was set to continue its work at the next session. Regarding
background documentation, the Committee identified a number of subjects on which it invited the Secretariat of
the United Nations, the International Atomic Energy Agency, the Agency for the Prohibition of Nuclear Weapons in
Latin America and the Caribbean (OPANAL), and the Secretariat of the South Pacific Forum to prepare background
documents for the Committee's consideration at its third session. It also outlined the way it wished those papers
to be prepared.
Decisions on the agenda and the final document(s) of the conference were deferred.
c. The Third Session
The third session of the Preparatory Committee was held at United Nations headquarters in Geneva, on 12-16 September.
It was chaired by Ambassador Isaac Ayewah, of Nigeria; representatives of 89 states parties participated. The previous
decision about admission of observers made it possible for Algeria, Argentina, Brazil, Chile, Israel, Pakistan
and Ukraine to attend. Extending that ruling, the Committee decided that representatives of intergovernmental organisations
should also be allowed, upon request, to act as observer agencies; OPANAL and the League of Arab States availed
themselves of the opportunity. The session was further attended by representatives of 52 non-governmental organisations,
of whom many participated in a joint briefing for delegations and some also gave separate briefings. Their information
material was displayed outside the meeting room and distributed individually to delegates.
Three lessons may be drawn from these statistics. With respect to the venue, the number of parties represented
at the session, many fewer than at the previous two sessions (128 and 114, respectively) may be taken as a justification
of the assessment that as regards attendance, New York would be a better venue than Geneva, because so many more
states parties have permanent missions in New York. Secondly, the opportunity for non-party states to be present
was felt to serve the interest particularly of states that are in the process of acceding to the Treaty. And thirdly,
the presence of NGOs in no way disturbed the proceedings and was appreciated both by those organisations themselves
and by delegations seeking information on technical matters.
The two meetings the Committee devoted to substantive statements reflected attitudes that may be expected to dominate
the review and extension process at the 1995 conference. In general terms, speakers from industrialised nations
stressed the non-proliferation functions of the Treaty and praised its attainments. The majority of the (more numerous)
speakers from developing and non-aligned states underlined the obligations of nuclear-weapon states under article
VI of the Treaty, and expressed the view that the implementation of the Treaty had not gone far enough to alleviate
the discrimination inherent in it. While the former category of speakers called for the indefinite and unconditional
extension of the Treaty, the latter, by and large, expressed preference for an extension by a fixed period or periods.
There was much discussion in and around the session about options for extension, including the admissibility of
conditional extensions.
In response to the request made by the Committee at its second session, background documents had been prepared
by the Secretariats of the United Nations, the IAEA, OPANAL and the South Pacific Forum. These will be amended
to take account of comments made, and brought up to date before being submitted to the conference. Some delegations
felt that the paper prepared by the IAEA as usual on its activities under article IV, while duly reflecting its
own work in that respect, did not constitute the "comprehensive" background documentation on the implementation
of that article requested by the Preparatory Committee at its second session; they asked for a second and more
extensive paper dealing with all aspects of the implementation of article IV, including supplier states' controls
on nuclear exports. A number of developing nations see the restrictions imposed by suppliers as infringing the
"inalienable rights" article IV gives them to profit from the "fullest possible exchange of equipment,
materials and scientific and technological information for the peaceful uses of nuclear energy". That issue
was also raised at the General Conference of the International Atomic Energy Agency, a week later, where especially
Iran criticised the way nuclear supplier nations give effect to article IV. Iran even indicated there that the
issue of suppliers' controls might be a ground for withdrawal from the Treaty. There was no consensus in the Committee
on the preparation of the additional paper, and the issue was remitted to the fourth session. These developments
indicate that the issue of peaceful use of nuclear energy may play a more important part at the 1995 conference
than analysts had previously assumed.
The third session of the Committee was mainly preoccupied with procedural aspects of the 1995 conference. Its discussions
on these items may be a preview of the approaches to the substantive issues which political groups are likely to
adopt at the conference. The draft Rules of Procedure for the conference were discussed in a working group, where
agreement was reached on virtually the entire set, with, however, some significant exceptions. The main exception
was the question of procedures for voting if more than one extension option was proposed. It was particularly Iran
that held out for a solution to this question and to related issues. However, the fact that other states also had
concerns how to handle various options for extension, was illustrated by the support given to a request by non-aligned
delegations for a paper by the United Nations Secretariat on the legal interpretation of article X, 2. Resistance
to this suggestion, based on the consideration that the interpretation of article X, 2 should be left to the participants
in the conference rather than being laid down by a body that had no particular standing in this matter prevented
consensus. Formally, this matter, too, was held over for the next session. Since then, however, in a resolution
of the General Assembly, the Secretary-General was requested to seek the views of member states on the issue. One
may expect that a United Nations paper reflecting such views may be introduced at the fourth session of the Preparatory
Committee. It still remains to be seen, how such a document will be introduced, and what use will be made of it.
Another interesting question, discussed more in the lobby than in the meeting itself, was the way the decision
on extension will be taken. There seems to be a wish on the part of some of the members of the Non-Aligned Movement,
for a sub-committee or working group of the conference to be set up for this purpose. Many, and possibly most,
parties feel, however, that this is a matter to be left for the President to handle informally; many delegates
expect that the President will avail himself of the time-honoured device of the `Friends of the Chairman': an informal
group of advisers, composed of prominent delegates through which he is able to keep abreast of trends and tendencies
at the conference, and who will be able to convey to their various constituencies how the President would wish
to see the conference take its decisions. This mechanism has showed itself to be particularly effective at the
third review conference, in 1985. One may note that at that conference, the present President Elect, Ambassador
Dhanapala of Sri Lanka, chaired the important Main Committee I. Amb. Dhanapala gave invaluable assistance to the
President of that conference, Ambassador Shaker of Egypt, by making sure that the Main Committees at that conference
followed effective working methods; he may be counted upon not to have forgotten how well the `Friends of the Chairman'
functioned on that occasion.
As to the scale of contributions to the budget of the conference, which is part of the Rules, it was agreed that
China, France, Russia, the UK and the USA together would pay 55 per cent of the costs, with the remainder being
paid by the other participants in accordance with an adjusted UN scale of contributions. However, one country insisted
that all parties should contribute, including those that did not attend. One state asked for postponement, because
its UN contribution was still under discussion. The Committee will also have to discuss this matter again at its
January session.
The Agenda for the conference was discussed at length but here too, no agreement could be reached. One issue was
the order of the items, a point that is directly connected to the relationship between the review process and the
extension. Involved in this issue is the question whether absence of agreement on the review of the implementation
of the Treaty should hold up a vote on its extension. In this context the question is also raised what final document
or documents the conference should produce to reflect the results of its work? The decisions on these matters were
also referred to the last session of the Committee.
Another matter, indirectly related to these discussions, is the agenda item allocating the review of the implementation
of various elements of the Treaty to the respective main committees of the conference. This, too, was left for
later consideration.
The chairmanship of the fourth session of the committee presented an unexpected bone of contention. The Group of
Western and Other States had endorsed the candidature of Ambassador Pasi Patokallio of Finland for this function.
There is not yet full agreement on the allocation of the chairs of the main committees of the conference, however.
Given the presumed connection between those allocations and the chairmanship of the various sessions of the Preparatory
Committee, this matter also had to be left for decision at the fourth session. Amb. Ayewah, was asked in the interim
to have consultations on this issue.
Prospects and Conclusions
The preparatory work so far has not yet been able to generate the procedural conditions required for the smooth
operation of the conference. As matters stand at present, one faces the possibility that a number of major procedural
problems will have to be resolved at the fourth session of the Preparatory Committee and, if that turns out not
to be possible, they may even have to be left for settlement at the conference itself. Unless all important outstanding
matters are settled in time and to the satisfaction of the great majority of parties to the Treaty, work at the
conference may be handicapped by inadequate procedures and the achievement of a significant extension of the Treaty
may become even more difficult than it would be otherwise.
That would not be in the interest of the majority of states, who feel that it is to their advantage to have a strong
and effective NPT, even if many of them criticise the manner in which the Treaty has been implemented so far.
That criticism ranges over all aspects of the Treaty: it pertains in particular to the way its disarmament provisions
have been implemented so far, and to the effect given to the article on peaceful uses. Recent developments in Iraq
and the Democratic People's Republic of Korea, persistent reports about the nuclear-weapon programmes of non-parties
such as India, Israel and Pakistan, problems created by the presence of nuclear weapons and weapon-manufacturing
installations in some of the constituent republics of the former Soviet Union, and diverse accounts of illicit
trade in nuclear material have also led to questions about the effectiveness of the NPT in deterring proliferation.
At the same time, and in apparent contradiction with the last point, criticism is heard at times about the intrusiveness
of the safeguards regime, as well as of its cost.
Most, if not all, the critics give clear indications of their conviction that the Treaty should be maintained.
The continuing growth in the number of states parties, among whom Ukraine is an important newcomer, well illustrates
how much value the international community as a whole attaches to the Treaty. There are parties, however, who would
not wish to see the Treaty extended for a long time without giving the nuclear-weapon states a clear signal that
they are not satisfied about the implementation of the disarmament provisions, and to present the industrial states
with an unambiguous demand that they wish the peaceful-uses provisions of the Treaty to be given full effect. Those
states do not want their nuclear trade to be hampered by limitations imposed for non-proliferation reasons, and
they are particularly adverse to any discrimination in this regard between one state and another.
Many states are understood to feel that an indefinite extension might present the wrong image and would tend to
freeze present inequalities. Most states parties are well aware that those inequalities cannot be remedied by making
changes to the Treaty. They know, that it is virtually impossible to amend the Treaty, and that it is equally unlikely
that world-wide agreement on an alternative could be obtained within the foreseeable future. Not wishing to jeopardize
the positive aspects of the Treaty by withdrawing from it or seeking its early termination, those states seek means
to obtain an improvement in its implementation.
Many parties hold the view that a way should therefore be sought of maintaining leverage on the states most widely
thought to be able to give effect to the various provisions of the Treaty, especially the superpowers and the rich
nations of the North. Given that one cannot retroactively `build in' conditions for extension - most legal commentators
deny that the present Treaty text leaves an opening for conditional extension - those states are looking for a
way to maintain the leverage without amending or terminating the Treaty.
It should be in the interest of all to work together in seeking a solution along these lines. But solutions to
exceptionally complicated problems, approached from sharply different points of view, can only be found under the
right conditions. This demands at a minimum the existence of sensible and workable conference procedures.
The Treaty on the Non-Proliferation of Nuclear Weapons is many things to many states. It is created around a set
of international obligations that are basic to global peace and security. Its parties recognise it, as
Parties also know that if the NPT should cease to exist, some of the consequences would be that:
The NPT is subject to praise and to criticism. It is the one international instrument that incorporates the
obligation to refrain from obtaining nuclear weapons on the one hand, and to get rid of them, on the other. It
should be fully implemented. The forthcoming conference presents a unique opportunity to advance that implementation,
but it can only do so if it is properly prepared. It is essential that all concerned should realize this, and should
cooperate to complete those preparations as promptly and productively as possible.
As was said at the start of this paper, the conference of 1995 will be the first occasion when the revision and
extension mechanism will be put fully to the test. The negotiators of the Treaty have also intended it as the last
- as the one event where the future of the Treaty would be decided. If we do not use this opportunity properly,
the Treaty may lose its validity, and humanity may lose one of the few barriers that exist between it and nuclear
anarchy.
NOTE:
1. Resolution 47/52 A
2. As provided for in article VIII, 3
3. To repeat the last line of article X, 2: ..."This decision shall be taken by a majority
of the Parties to the Treaty."
* Biographic Note
Mr. Benjamin Sanders is the founder and Executive Chairman of the Programme for Promoting Nuclear
Non-Proliferation. Former official, of Netherlands Ministry of Foregin Affairs; IAEA Safeguards Department, and
United Nation's Department for Disarmament Affairs.
Deputy Secretary-General, Second Review Conference of the Non-Proliferation Treaty, 1980; Secretary-General of
the Third Review Conference, 1985. One of three members of UN panel that prepared the Secretary-General's 1990
Report on measures to facilitate the establishment of a nuclear-weapon-free zone in the Middle East. Currently
Adviser to the Secretariat on the 1995 NPT Conference.
|
|
|
|
