ON THE ECONOMIC IMPLICATIONS
OF THE PROPOSED NONPROLIFERATION TREATY

H. ANTON KELLER, HEINZ BOLLIGER, PETER B. KALFF
Revue de Droit International, de Sciences Diplomatiques et Politiques
(The International Law Review - Sottile) No.1 Jan-Mar 1968, p.26-73

CORUM Research Group, 1211 Geneva 2 - Switzerland - +4122-7400362 - swissbit@solami.com
URL: www.solami.com/NPT68.htm ¦ .../NPT.htm ¦ .../NPT75.htm ¦ .../nuclearsources.htm ¦ .../a2.htm
 

NOTE BY THE EDITOR of the Revue de Droit International - Geneva

    The following article is an analysis of the last available official draft of the so-called Non-Proliferation Treaty which for some years now has been in the works at the Eighteen-Nation Committee on Disarmament in Geneva. The autors - members of an international research group - attempt to indicate some of the more significant economic implications of this treaty on the basis of various conceivable interpretations of its key provisions.
    Their conclusion is that a substantial number of highly relevant questions has not yet - if at all - been answered satisfactorily, that adoption of the present treaty draft might entail economic drawbacks on an unprecedented scale for both signatory and non-signatory non-nuclear weapon states, and last but not least, that the present - fourth - treaty draft still contains loop-holes sufficiently large to eventually invalidate the entire exercise for bringing about an effective nuclear weapons control.
    The subject of nuclear weapons control embraces not only military, but economic, legal and political questions of the first order of magnitude. Evidently, such a subject cannot be treated conclusively in the space available in a quarterly on international legal affairs.
    The authors themselves have been restrained by various other factors which could not fail to affect the outcome of their respective research work. Nevertheless, the findings which have evolved from their commendable labours have elevated beyond reasonable doubt what has been voiced elsewhere repeatedly, namely the fact that the present treaty draft
   a)   is far from eventually providing an instrument of well-balanced rights and obligations.
   b)   is far from eventually providing effective safeguards for the non-nuclear-weapon states' legitimate interests thus affected,
   c)   is far from eventually providing an instrument capable of an effective prevention of either a horizontal or a vertical proliferation of nuclear weapons, and in light of the treaty's world-wide significance, therefore
   d)   is far from being ripe for adoption, signature and ratification.
    This unfavourable situation seems to indicate a close scrutiny by every interested government with regard to its position vis-a-vis the proposed Non-Proliferation Treaty. The question also arises whether or not circumstances justify establishing a study group which, under the auspices of related United Nations Specialized Agencies, would be charged to investigate in depth and report on all questions related to research on, development, manufacture and applications of nuclear explosives.
    Indeed, such a comprehensive study appears to be indispensable if the proposed treaty's pros and cons are to be evaluated properly, and if a responsible decision for or against its adoption is to be arrived at on the basis of a clear understanding and due consideration of all relevant factors.
 

ANTOINE SOTTILE.

 
ON THE ECONOMIC IMPLICATIONS
OF THE PROPOSED NONPROLIFERATION TREATY*
"A strong but silent force that is menacing world peace and security is the economic and technological backwardness of more than two-thirds of the world today. Much must be done, and in the shortest possible time, to bring about a change and betterment of the economic and technological standards of the developing nations. So far no known conventional means gives sufficient promise for a leap forward in this field. It is only natural, therefore, that as we are endeavouring to stop the spread of nuclear weapons, we should at the same time be insisting on a clear and definite commitment for better and intensified co-operation in the peaceful application of nuclear energy, lest we forget and unwittingly shelve this noble function ofnuclear technology with that of the weapon itself."
HE Ambassador A. ZELLEKE at the 364th meeting of the Eighteen-Nation Committee on Disarmament
ABSTRACT

    The idea to prevent the spread of nuclear weapons and to undertake steps aimed at an early nuclear disarmament is being supported widely. The NONPROLIFERATION TREATY presently in the works at the Eighteen-Nation Disarmament Committee in Geneva, and which is due to be reported on to the United Nations General Assembly by March 15, 1968, for consideration, is intended to meet this double objective. Its basic approach is to restrict or prohibit the research on, development, manufacture and acquisition of nuclear weapons and other nuclear explosive devices for all countries which have not independently detonated a nuclear explosive device prior to January 1, 1967. Countries not falling into this category are termed nuclear weapon countries. Signatory nuclear weapon countries would be under the qualified and uncontrollable obligation not to provide nuclear weapons and other nuclear explosive devices or control over them, and not to supply either know-how or material if such might enable a non-nuclear weapon country to acquire such devices. Signatory nuclear weapon countries would furthermore be under the obligation to engage in negotiations leading to effective measures to stop the nuclear arms race and eventually to bring about general and complete disarmament under strict and effective international control.
    Involving nuclear energy, any attempt to divide the world community into countries which would be permitted to pursue any respective research and development avenue without any restriction, and into countries which would either be prohibited to engage, or denied assistance in some such activities and would thus be dependent for respective benefits on the former, could not fail to entail perhaps onerous economic and political consequences. Respective opportunity costs and opportunity benefits must be weighed against or with the security benefits claimed to be entailed in the proposed NONPROLIFERATION TREATY. An informed decision must be arrived at in due time on whether it would appear to be in any potentially affected country's, or in the world community's best interest to conclude and bring to bear the proposed or a similar treaty project.
    The purpose of this analysis is then to contribute to a better understanding of the possible long-term economic implications of the various provisions of the latest available draft, to point at apparent respective shortcomings, and to promote the conclusion of a more balanced and less discriminating agreement. Technical details and theoretical economic thoughts are elaborated on to the extent deemed necessary and helpful for achieving the set objective. The available information indicates that the proposed NONPROLIFERATION TREATY not only might adversely and substantially affect economic development interests of signatory and non-signatory non-nuclear weapon countries, but might actually fail to achieve its advertised purpose of arresting the further proliferation of nuclear weapons. To be specific :

    1.     The Treaty might serve as a legal instrument for seeking to deny both signatory and non-signatory non-nuclear weapon countries and non-signatory nuclear weapon countries the benefits of peaceful nuclear explosive services applied on their respective territories.
    2.     The Treaty might hinder the creation of appropriate international institutions providing peaceful nuclear explosive services.
    3.     The Treaty might be used as a legal basis for executing projects involving the peaceful use of nuclear explosives without due consideration of all relevant factors and legitimate interests of third countries thus eventually affected.
    4.     The Treaty would deprive signatory non-nuclear weapon countries of a potentially significant vehicle for unlocking and bringing into effective play nationally available resources which otherwise may not, or not so readily, lend themselves for development. The Treaty might thus entail the relatively highest opportunity costs for countries showing the lowest degree of resources development and thus being least fit to pass up such perhaps significant development opportunities.
    5.     The Treaty might serve as a legal instrument for seeking to deny some countries the benefits of a transfer of economically sensitive material, instruments or know-how, thus eventually affording discrimination against countries desiring to participate, and share the benefits of progress made in such potential key fields as high-frequency, laser, neutron and controlled fusion research, development and applications.
    6.     The Treaty would substantially strengthen and possibly extend existing monopolies in such future key fields of nuclear energy development and application, as reactor technology, nuclear propulsion systems and plasma physics.
    7.     The Treaty might favour the selling position of nuclear weapon countries vis-à-vis both signatory and non-signatory non-nuclear weapon countries on the world market with regard to nuclear and nuclear-related commodities.
    8.     The Treaty would seriously endanger existing and effective arrangements for regional cooperation in the peaceful development and applications of nuclear energy; it might hinder or entirely rule out the creation of further respective ventures by interested countries.
    9.     Insofar as the Treaty might serve as an effective instrument economically forcing non-nuclear weapon countries to become a party to same even though such a country might have arrived at the conclusion that participation in this Treaty would not be in its best interest, the Treaty's withdrawal clause would not really afford signatory non-nuclear weapon countries to escape the perhaps substantial economic consequences of their participation in same.
    10.     The Treaty might fall to meet its authors' advertised objectives due to substantial apparent loop-holes in various Articles. Individual or groups of signatory or non-signatory non-nuclear weapon countries might thus find it opportune and practicable to legally acquire a complete and relatively quickly operational, potential nuclear weapon system.

    Widely held hopes that the final draft which will be adopted and submitted for signature eventually will be amended somewhat and perhaps even substantially, do not seem to be without foundation. Nevertheless, the nature of the proposed NONPROLIFERATION TREATY, and particularly its basically negative, restrictive approach to an urgent problem makes it difficult to expect changes in the present text to eventually void many of the arguments which can be raised against this particular Treaty. Some of the conceivable economic drawbacks entailed in this Treaty might indeed be avoided only by way of an entirely different agreement which would be designed to provide for an effective nonproliferation of nuclear weapons without discriminations substantially affecting the actual or potential economic interests of either signatory or non-signatory, nuclear weapon or non-nuclear weapon countries.
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*      This treatise is part of a forthcoming study entitled "REPORT FROM LAC LEMAN - On the Elements of, Obstacles to, and Prospects for Peace With Progress in the Atomic Age". The progress - or apparent lack of real progress made at the Disarmament Conference in Geneva on the issues of nuclear weapons control and nuclear disarmament - and the possibly enormous economic consequences of the so-far proposed steps for nuclear weapons control prompted this advance publication of the respective section of said Report.
 
 

*          *          *

(1)     The "Text of Treaty on the Non-Proliferation of Nuclear Weapons"1, as submitted on March 11, 1968, by the Delegations of the United States of America and the Union of Soviet Socialist Republics is reproduced in the following in extenso and commented upon with regard to the proposed Treaty's key provisions. Customary instruments of treaty interpretation are being applied 2. The most unfavourable assumptions with regard to the apparent related interests of signatory non-nuclear weapon countries serve as a working basis, with the national economic and political self-interests consequently being considered to constitute every involved government's prime decision parameter. Although not necessarily in conformity with the "historical" treaty interpretation procedure 3, this course has been indicated by the desire to remain positively on the safe side concerning the interests of signatory countries eventually depending on the ostensibly assured benefits.
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1     Contained as Annex A in the ENDC-Report to the United Nations General Assembly (ENDC/225).
2     A statement worth noting in this context was made by E. Root, former U.S. Secretary of State: "Treaties cannot be usefully interpreted with the microscope and the dissecting knife, as if they were criminal indictments. Treaties are steps in the life and the development of great nations ... Long contests between the representatives of nations enter into the choice and arrangements of the words of a treaty. If you (want to) be sure of what a treaty means ..., learn out of what conflicting public policies the words of the treaty had their birth, what arguments were made for one side or the other, and what concessions were yielded in the making of the treaty." Quoted by HYDE "International Law Chiefly as Interpreted and Applied by the United Slates", Boston, 1947, Vol. II, pp. 1471-2.
3     For an instructive study on the merits of this approach, see: György HARASZTI "Historical Interpretation of International Treaties", Questions of International Law, Hungarian Branch of the International Law Association, Budapest, 1966, pp. 66-88.
 
 

30    H. A. KELLER, H. BOLLIGER, P. B. KALFF

TREATY ON THE NONPROLIFERATION OF NUCLEAR WEAPONS

    The States concluding this Treaty, hereinafter referred to as the "Parties to the Treaty",
   Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples,
   Believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war,
   In conformity with resolutions of the United Nations General Assembly calling for the conclusion of an agreement on the prevention of wider dissimination of nuclear weapons,
   Undertaking to co-operate in facilitating the application of International Atomic Energy Agency safeguards on peaceful nuclear activities,
   Expressing their support for research, development and other efforts to further the application, within the framework of the International Atomic Energy Agency safeguards system, of the principle of safeguarding effectively the flow of source and special fissionable materials by use of instruments and other techniques at certain strategic points,
   Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear weapon or non-nuclear-weapon States,
   Convinced that in furtherance of this principle, all Parties to this Treaty are entitled to participate in the fullest possible exchange of scientific information for, and to contribute alone or in co-operation with other States to, the further development of the applications of atomic energy for peaceful purposes,
   Declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race,
   Urging the co-operation of all States in the attainment of this objective,
   Recalling the determination expressed by the Parties to the Partial Test Ban Treaty of 1963 in its preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all lime and to continue negotiations to this end,
   Desiring to further the easing of international tension and the strengthening of trust between States in order to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament under strict and effective international control,
   Have agreed as follows:

ARTICLE  I

    Each nuclear-weapon State Party to this Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over, such weapons or explosive devices.
 

 C o m m e n t

(2)     This Article lays out the principle that signatory nuclear weapon countries must not under any circumstance, in any way, and either directly or indirectly contribute to the manufacture or acquisition of nuclear explosives by a non-nuclear weapon country. Though enforcement of this principle cannot, of course, be guaranteed in the absence of effective international controls 4, this provision would substantially expand on Article I, § 2 of the 1963Moscow Treaty 5. Signatory countries thereby undertook , to refrain from causing, encouraging, or in any way participating in, the carrying out of any nuclear weapon test explosion, or any other nuclear explosion, anywhere which would take place in any of the environments described "or" causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted." 6

(3)     As an illustration of how this proposed Article might adversely affect the interests of both signatory and non-signatory countries, one may recall the respectively perhaps most indicative incident 7 of 1966 when delivery of a sophisticated IBM 360-92 computer system was sought to be prevented essentially on the ground that this system might be used to speed the development of advanced nuclear weapons and their test explosions, and that therefore delivery of this system would constitute a violation of at least the spirit, if not indeed a provision of the 1963 Moscow Treaty.

(4)     The proposed Nonproliferation Treaty's Article I refers to "any recipient whatsoever" with regard to the transfer of "nuclear weapons or other nuclear explosive devices", and to assistance, encouragement, or induction of "any non-nuclear weapon State" with regard to the manufacture or acquisition by other means of "nuclear weapons or other nuclear explosive devices" 8. This Article would thus seem to convey effective restriction authority to countries possessing means and know-how which merely might also be useful in the acquisition of nuclear explosives.
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4     This situation prompted the Delegation of a non-nuclear weapon country to ask: "...what guarantee is there that the nuclear Powers will honour their undertakings not to transfer nuclear weapons to any recipient whatsoever, and not to assist, encourage or induce other States to manufacture or otherwise acquire nuclear weapons or control over such weapons? As we know, in the territories of many non-nuclear States there are nuclear weapons installed at military bases and on launching pads. What guarantee is there that the armed forces of such States, which take part in joint training exercises with the military personnel of the respective nuclear-weapon States in order to learn how to use nuclear weapons and the means of their delivery, will not have access to nuclear weapons and will not come into possession of them or acquire control over them?" (ENDC/PV. 362, § 8).
5    "Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Unter Water. Signed at Moscow, on 5 August 1963", United Nations Treaty Series, Vol. 480, United Nations New York 1965, pp. 43-99; ENDC/100 Rev. 1.
6     Ibid., § 1, b.
7     Reported by Richard E. MOONEY, in The New York Times, European Edition, Oct. 21, resp. Oct. 22-23, 1966, p. 1.
8     As such, research on, development, manufacture or acquisition by other means of nuclear explosive parts might be viewed as having been left out of consideration thus constituting a perhaps significant loop-hole.
[cf: U.S. Secretary of State Dean Rusk's NPT definition, as published in "Treaty on the Nonproliferation of Nuclear Weapons", Senate Executive Report No 91-1, Washington 3/6/69, p.3: "The treaty deals only with what is prohibited, not with what is permitted", in conjunction with the authoritative interpretation: "The NPT prohibits ... transferring complete nuclear weapons and other nuclear explosive devices to any recipient ..." given in the Memorandum by the U.S. Atomic Energy Commission to the Committee "Relationship of Non-Proliferation Treaty to Atomic Energy Act Provision regarding Military Cooperation with Allies", as reproduced in: Military Implications of the Treaty on the Non-Proliferation of Nuclear Weapons, Hearings before the Committee on Armed Services, U.S. Senate, Washington, 2/27/69, p.141].
 
 

32    H. A. KELLER, H. BOLLIGER, P. B. KALFF

(5)     The proposed Nonproliferation Treaty's Preamble and its Articles IV and V would seem 9 to guarantee unrestricted peaceful research on, development, and applications of nuclear energy. Motives similar to those which are believed to lay at the root of the above cited incident can, however, not be ruled out. In the event, they might produce Treaty interpretations on the part of interested countries which might not be in conformity with the very benevolent spirit enunciated in the Treaty's Preamble. In light of various indications it is quite conceivable that a country desiring to come to, be and/or remain at the forefront of such potential key fields as high-frequency, laser, neutron or controlled fusion research, development and applications 10would find itself denied any respective assistance from signatory nuclear-weapon countries on the ground that a respective transfer of material, instruments and/or know-how would fall into the category of services which might lead to the acquisition of nuclear explosives 11.

(6)     In view of the high probability for these very research fields to eventually constitute a major source of strength for that economy sector which in the future may have central importance, namely atomic energy, the temptation would undoubtedly be there to seek protection of respective research and development leads - made possible by unrestricted research and development - by whatever means available.

If already the relatively weak respective Article of the 1963 Treaty provided a legal basis for seeking to deny a country the benefits of a transfer of modern technology, there would seem to be no apparent reason suggesting that the same method might not be used again in the presence of a respectively even stronger legal basis, if such would be considered either politically or economically expedient. Even if such efforts ultimately failed, the delays thus caused might entail appreciable economic damages.

(7)     Equally, though perhaps to a somewhat lesser degree, dependent on the goodwill of the nuclear weapon countries would
_________
9      That they may not constitute a respective guarantee is being shown in the comments on Articles IV and V.
10     Why these economically perhaps most significant fields may be affected by and linked to nuclear explosives research and development, and thus might fall under a "technological ban" working to the disadvantage of signatory non-nuclear weapon countries is being shown in the comment on Article IV.
11     Significantly, Article I refers only to "manufacture" and other forms of acquisition of nuclear explosives. Respective research and development work might thus be viewed as having been left out of consideration. Depending on the interpretation of this key Article, nuclear weapon countries would thus seem to eventually remain in a position to legally provide assistance which might also be useful to nuclear explosive research and development to selected, particularly friendly countries. Very similar or even identical assistance, but interpreted as possibly useful in the "manufacture" of nuclear explosives, might then be denied on legal grounds to less friendly countries.
 
 

THE PROPOSED NONPROLIFERATON TREATY     33

seem to be all those countries desiring to apply the nuclear excavation technology on their own territories, or to obtain the benefits arising from other possible forms of peaceful nuclear explosions.  For while Article V provides for the "cooperation to insure that potential benefits from any peaceful applications of nuclear explosions will be made available through appropriate international procedures to non-nuclear-weapon States Party to the Treaty", the proposed Article I would clearly forbid the transfer of both nuclear weapons and all other nuclear explosive devices 12 to any recipient whatsoever.  This provision might thus serve as a legal barrier against an early implementation of the apparent intentions enunciated in Article V, for "any recipient whatsoever" presumably would include those international institutions which eventually would have to make sure that the technology of nuclear excavations and nuclear explosions for other peaceful purposes would be available at least to signatory non-nuclear weapon countries on a non-discriminatory basis.

(8)    Insofar as the term "transfer" may be interpreted by the nuclear weapon countries as including the transport by whatever means, Article I could, of course, constitute a major breakthrough in the efforts for bringing about effective nuclear disarmament.  For in that case, Article I might serve as a formal declaration prohibiting the transport of nuclear weapons and other nuclear explosive devices for military purposes to any country whatsoever.
 

(9)     S u m m a r y

1.    The qualified and uncontrollable obligation eventually undertaken by nuclear weapon countries not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices would also apply to nuclear explosives intended for peaceful applications. As such this obligation could decisively hinder the availability of nuclear explosive services to interested countries.

2.    The uncontrollable obligation eventually undertaken by nuclear weapon countries not in any way to assist non-nuclear weapon countries in the manufacture or acquisition by other means of nuclear explosive devices would leave out assistance which might be termed to fall under either research on or development of nuclear explosives. As such Article I might serve nuclear weapon countries to discriminate against individual non-nuclear weapon countries in their assistance in nuclear or nuclear-related fields.  Specifically, Article I might serve nuclear weapon countries to seek to deny the transfer of economically sensitive material, instruments and/or know-how to interested non-nuclear weapon countries.

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12    This is the term used in circles of the Eighteen-Nation Disarmament Committee and elsewhere for describing nuclear explosives which were designed and intended for peaceful purposes but, for reasons of their inavoidable dualistic character, might also be used for military purposes.  An interpretation to the effect that nuclear explosives for peaceful purposes would indeed fall under this prohibition was offered by one Delegation of a nuclear weapon country without an indication of how the thereby resulting conflict with the respective provision of Article V might be resolved (ENDC/PV. 357, §§ 24, 26).
 
 

34     H. A. KELLER  H. BOLLIGER, P. B. KALFF

3.     Neither the supply of, nor the assistance to non-nuclear weapon countries for otherwise acquiring nuclear explosive parts8 would be prohibited explicitely. In light of a similar lack of comprehensiveness in Articles II and III, the proposed Nonproliferation Treaty might thus fail in its principle advertised purpose in that individual or groups of signatory or non-signatory non-nuclear weapon countries might find it opportune and practicable to legally acquire a complete and relatively quickly operational, potential nuclear weapon system.
 

ARTICLE  II

Each non-nuclear-weapon State Party to this Treaty undertakes not fo receive the transfer from any fransferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other assistance in the manufacture of nuclear weapons or other nuclear explosive devices.
 

C o m m e n t

(10)     Insofar as this Article is meant to cover nuclear explosive parts8, this Article seems intended to prohibit the development and expenditure of nationally available human, natural and financial resources to the effect of producing or otherwise acquiring a national nuclear capability, to the extent that the nuclear capability thus developed might also be applied for military purposes.

(11)     In the view of some observers, this restriction could adversely - and substantially so - affect the long-term economic and social development particularly of developing countries. The underlying argument for this view is presented in the following paragraphs. The argument derives from the apparent fact that for a modern society the principle and almost exclusive value of national military capabilities - contrary to popular beliefs - is not to be found in the "security" the respective systems ostensibly are intended to provide, but in their seemingly unique qualities as generators and catalysts of otherwise seemingly impracticable economic development and social change.

(12)     The resources involved in developing a national military nuclear capability have been the subject of a Special Report by a United Nations Expert Group 13. The findings thus published are that the ten-years annual procurement costs for a modest military nuclear capability would be of the order of $ 170 million, and for
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13   Report of the Secretary General on the Effects of the Possible Use of Nuclear Weapons and on the Security and Economic Implications for States of the Acquisition and Further Development of These Weapons. A/6858, 10 October 1967, United Nations, New York.
 
 

THE PROPOSED NONPROLIFERATON TREATY     35

a small high-quality nuclear force some $ 560 million 14. Such expenditures indicate that the resources required for such a venture are substantial on any scale. However, another relevant fact - enunciated most eloquently in another recent publication 15 - would seem to be that in all of history and until today expenditures intended to satisfy security desires stemming from actual or latent fears have continuously been accepted by society with the least opposition if compared - on the basis of resources costs involved - to other public spendings 16. These indications give reason for looking at military and other public spendings from a somewhat non-conventional perspective.

(13)     It is well known that most developing countries decidely suffer less from a lack of either human or natural resources, but from a lack of proper conditions and means affording to bring the nationally available resources into effective play. In view of these conditions, it would appear that while a developing country's actual relative poverty may indicate the degree to which national resources are developed, it does not per se constitute a valid indicator for the country's eventual incapacity to develop and bring to bear its resources for a given purpose, e.g. to the effect of developing a substantial and modern military capability. For such a national objective - particularly in the actual or alleged presence of a credible external security threat - may very well give rise to conditions, and provide the means affording to unlock otherwise apparently inaccessible or marginal resources 17. This,
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14     Ibid. §§ 67/68.
15  Report from Iron Mountain - On the Possibility and Desirability of Peace, with introductory material by Leonard C. LEWIN, Dial Press, New York, 1967
16     Ibid. Sections 5 and 6, passim.
17     This possibility casts doubt on the rather popular argument which holds that nationally available resources spent on military, space, prestige and other "non-essential" or "unproductive" programs represent so and so many hospitals, schools, water works and other urgently needed "essential" or "productive" development works, money costs usually serving as basis for respective calculations. What is usually neglected in such reasonings is the simple fact that while these resources are indeed available and could indeed be spent on more "sensible" projects, the motivation and subsequent political incentive associated with such humdrum and everyday programs simply do not, as a rule, afford to unlock those resources and bring them into effective play, at least not as long as the level of motivation thus involved is more or less below that associated with programs commanding a higher priority with society as a whole or with the ruling bodies of a country. As a matter of fact, the butter-or-guns theory over-simplifies the polical processes involved in resources development and application. For not one single hospital bed can be provided additionally simply because an intended weapon or space system has been scrapped, or one rifle less than scheduled will be produced. In present-day societies, savings of this nature can and will be brought into play in other programs only to the extent that the motivation associated with these other programs are convertible into political incentives entailing sufficient gravity of their own to withstand competing forces within the budgetary frame involved. For this reason, many a nationally available resource is actually only potentially available, namely for purposes involving high and highest degrees of motivation, such as can be found in "non-essential" or "unproductive" programs.
 
 

36     H. A. KELLER, H. BOLLIGER, P. B. KALFF

of course, could well serve to justify almost any program in any country provided the motivation associated with same and the subsequently available political incentives afford to unlock and bring into play, an important part of those marginal resources. This challenging proposition is not a new one. However, due mainly to new means and opportunities evolving from progress in science and technology, it has become a growing temptation to explore its potential in the non-military fields. Hopefully, this temptation may become and remain greater than the temptation to exploit under the cover of economic expediency latent or actual human security aspirations.

(14)     There seem to be very few programs of a non-military character with equally high and highest motivation opportunities. The space program seems to be one. It may serve as an example in this context for it can be considered to entail - though varyingly - motivations far above average and stemming not primarily from security desires but from prestige considerations. This alternative source of high-degree motivation, namely prestige, carries particular relevancy for this discussion.

(15)     In the sense that research, development and production involved in a space program can be highly productive and progress-promoting for a national economy, space programs would seem to entail very similar economic effects to those which can be expected to result from an autochthone development and production of a modern military weapon system, e.g. a national military nuclear capability. Significantly, both programs entail end products which per se can have little if any direct positive impact on the economic development process. Nevertheless, it appears that this characteristic as such does not disqualify either program from being a practicable and effective vehicle for unlocking and bringing into play nationally available marginal resources. From a strictly economic point of view, and if optimum economic development is the prime decision parameter, these two programs would indeed seem to meet this objective second best only to programs entailing a similary high degree of motivation, and involving end products capable of substantially and additionally promoting the economic development process.

(16)     Such a program would seem to be available in the development and application of nationally available resources to the effect of creating a nuclear capability effectively purged of all possibilities for its military applications. Of course, it is yet to be demonstrated that the development of such a non-military nuclear capability affords to fire the imagination of a people and its leaders sufficiently for effecting appreciably the development and application of those marginal resources. As of now, this is no more than conceivable. Nevertheless, the likelihood for this to happen cannot fail to grow with the growing appreciation and spreading knowledge of the immense opportunities associated with this capability. A concrete nuclear excavation project, such as a new Suez or Panama Canal might produce the respective spark.

(17)     A question of particular relevancy arises from this prospect: Which of the two, a national or a multinational non-military nuclear capability provides more stimuli in the above sense? The data for an authoritative answer to this question is, of course, still lacking. Inconclusive indications are that from a purely economic point of view, substantial advantages might be linked to a multinational approach. What appears fairly certain is that from both a nationalistic and an economic point of view either solution would seem vastly preferable to a situation where all signatory non-nuclear weapon countries would depend - either directly or indirectly - on the goodwill of, and the respective research and development progress made in the nuclear weapon countries, for meeting the former's conceivably considerable needs with regard to safe and economical nuclear explosives and related services. The reasons for this apparent state-of-affairs are two-fold:

a)    Reserving the right for research on, development, production and applications of nuclear explosives to nuclear weapon countries would automatically eliminate whatever direct and indirect resources development stimuli a respective national or multinational effort would entail.

b)     The motivation associated with the capacity to rely, when needed, on means developed nationally or in cooperation with other countries, can have economic significance particularly for developing countries where pride in achievements and a substantial degree of independence in the most advanced fields of science and technology can generate and constitute particularly effective and supplementary political incentives. Given the status symbol of nuclear science, the said means and their availability wholly independent of the goodwill of supplying nuclear weapon countries and/or of mediary institutions can thus be expected to have supplementary and perhaps substantial economic generator effects.
 

(18) S u m m a r y

1.     Developing countries generally suffer less from a lack of either human or natural resources, but from a lack of suitable incentives and proper conditions and means affording to bring un- or underdeveloped nationally available resources into play.

2.     The creation and maintenance of either a national or a multinational non-military nuclear capability involves a perhaps unique avenue affording to unlock and bring into effective play nationally available resources which otherwise may not or not so readily lend themselves for development.

3.     For reasons of both its economic and political implications for participating countries, a multi-national non-military nuclear capability might constitute a concrete manifest of common and jointly met national interests, thus contributing perhaps substantially to international peace and the eventiual creation of a new order of cooperation among peoples of different countries and continents.

4.     For reasons of its economic generator effect, the creation and maintenance of such a capability may very well be in the economic interest of countries possessing a relatively high proportion of un- or underdeveloped resources.

5.     Therefore, a comprehensive analysis of every non-nuclear weapon country's actual degree of, and outlook for its future resources development is indicated, including in particular a detailed study on whether it would be desirable or even economically imperative to retain the sovereign right to develop and apply the country's resources to the effect of creating - either individually or in cooperation with other countries - a non-military nuclear capability.

6.     The proposed Nonproliferation Treaty would prevent all signatory non-nuclear weapon countries from developing - either individually or in cooperation with other countries - any nuclear capability involving nuclear explosives, regardless of whether this capability would be effectively limited to peaceful purposes or whether such development would have been shown to be in a non-nuclear weapon country's best interest.

7.     Therefore, the proposed Nonproliferation Treaty would entail the relatively greatest costs in terms of missed economic opportunities to those signatory countries with the highest proportion of un- or underdeveloped resources, and thus to those signatory countries which would seem to be least fit to afford such opportunity costs.

8.     Insofar as Article II might be interpreted to the effect that only ["complete" 8, i.e.] assembled nuclear weapons and other nuclear explosive devices are thus covered, this Article would not prohibit a signatory non-nuclear weapon country
    a)     to receive the transfer from any transferor whatsoever of unassembled nuclear explosive devices or control over such nuclear explosive parts directly or indirectly,
    b)     to manufacture or otherwise acquire nuclear explosive parts, and
    c)     to seek or receive any assistance in the manufacture of nuclear explosive parts.
    In light of a similar lack of comprehensiveness in Articles I and III, the proposed Nonproliferation Treaty might thus fail in its principle advertised purpose in that individual or groups of signatory non-nuclear weapon countries might find it opportune and practicable to legally acquire a complete and relatively quickly operational, potential nuclear weapon system.


ARTICLE  III

Paragraph 1

Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency's safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under ifs jurisdiction, or carried out under its control anywhere.
 

C o m m e n t

(19)     The Statute of the International Atomic Energy Agency (IAEA) thus mentioned may be reproduced in extenso with regard to the Agency's safeguards 18:

A.     With respect to any Agency project, or other arrangement where the Agency is requested by the parties concerned to apply safeguards, the Agency shall have the following rights and responsibilities to the extent relevant to the project or arrangement:
1.     To examine the design of specialiced equipment and facilities, including nuclear reactors, and to approve it only from the viewpoint of assuring that it will not further any military purpose, that it complies with applicable health and safety standards, and that it will permit effective application of the safeguards provided for in this article;
2.     To require the observance of any health and safely measures prescribed by the Agency;
3.     To require the maintenance and production & operating records to assist in ensuring accountability for source and special fissionable materials used or produced in the project or arrangement;
4.     To call for and receive progress reports;
5.     To approve the means to be used for the chemical processing of irradiated materials solely to ensure that this chemical processing will not lend itself to diversion of materials for military purposes and will comply with applicable health and safety standards; to require that special fissionable materials recovered or produced as a by-product be used for peaceful purposes under continuing Agency safeguards for research or in reactors, existing or under construction, specified by the member or members concerned; and to require deposit with the Agency of any excess of any special fissionable materials recovered or produced as a by-product over what is needed for the above-stated uses in order to prevent stock-piling of these materials, provided that thereafter at the request of the member or members concerned special fissionable materials so deposited with the Agency shall be returned promptly to the member or members concerned for use under the same provisions as stated above;
6.     To send into the territory of the recipient State or States inspectors, designated by the Agency after consultation with the State or States concerned, who shall have access at all times to all places and data and to any person who by reason of his occupation deals with materials, equipment, or facilities which are required by this Statute to be safeguarded, as necessary to account for source and special fissionable materials supplied and fissionable products and to determine whether there is compliance with the undertaking against use in furtherance of any military purpose referred to in sub-paragraph F-4 of article XI,
__________
18     "STATUTE, as amended up to 31 January 1963", International Atomic Energy Agency, Vienna, March 1967, pp. 30-34, Article XII.
 
 

40     H. A. KELLER, H. BOLLIGER, P. B. KALFF

with the health and safety measures referred to in sub-paragraph A-2 of this article, and with any other conditions prescribed in the agreement between the Agency and the State or States concerned. Inspectors designated by the Agency shall be accompanied by representatives of the authorities of the State concerned, if that State so requests, provided that the inspectors shall not thereby be delayed or otherwise impeded in the exercise of their functions;
7.     In the event of non-compliance and failure by the recipient State or States to take requested corrective steps within a reasonable time, to suspend or terminate assistance and withdraw any materials and equipment made available by the Agency or a member in furtherance of the project.
B.     The Agency shall, as necessary, establish a staff of inspectors. The staff of inspectors shall have the responsibility of examining all operations conducted by the Agency itself to determine whether the Agency is complying with the health and safety measures prescribed by it for application to projects subject to its approval, supervision or control, and whether the Agency is taking adequate measures to prevent the source and special fissionable materials in its custody or used or produced in its own operations from being used in furtherance of any military purpose. The Agency shall take remedial action forthwith to correct any non-compliance or failure to take adequate measures.
C.     The staff of inspectors shall also have the responsibility of obtaining and verifying the accounting referred to in sub-paragraph A-6 of this article and of determining whether there is compliance with the undertaking referred to in sub-paragraph F-4 of article Xl, with the measures referred to in sub-paragraph 2-A of this article, and with all other conditions of the project prescribed in the agreement between the Agency and the State or States concerned. The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which if finds to have occured. The Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations. In the event of failure of the recipient State or States to take fully corrective action within a reasonable time, the Board may take one or both of the following measures: direct curtailment or suspension of assistance being provided by the Agency or by a member, and call for the return of materials and equipment made available to the recipient member or group of members. The Agency may also, in accordance with article XIX, suspend any non-complying member from the exercise of the privileges and rights of membership.
(20)     The control rights and obligations thus entrusted to the IAEA would be applied in accordance with de IAEA safeguards system 19. In a noted lecture delivered recently at the Institute for International Law of the University of Göttingen, Felix OBOUSSIER rightly pointed out: "Article XII of the IAEA Statute is but a framework serving the Board of Governors of the Agency to work out a detailed safeguards system. The presently adopted provisions of that system are bound to be reviewed and altered in light of changed circumstances. At present, it is not possible to predict what changes will be made and how they will be applied. This is a source of considerable insecurity with regard to predictions on the extent and implications of the obligations which would be undertaken with the [proposed blanco] acceptance of the IAEA safeguards system." 20 This point was also raised recently by the Delegation of a non-nuclear weapon country at the Disarmament
_________
19     The Agency's Safeguards System, IAEA, INFCIRC/66/Rev. 1, Vienna, 10 November 1967. [the IAEA's Safeguards Model Agreement under the NPT, INFCIRC/153 of 1972, differs significantly from INFCIRC/66/Rev. 1: www.iaea.org/worldatom/Documents/Infcircs/Others/inf153.shtml)
20     "Mögliche Auswirkungen des geplanten Atomsperrvertrages auf den Euratomvertrag " (to be published shortly in: Vortragsreihe des Instituts für Völkerrecht, Professor Erler, ed. Universität Göttingen).
 
 

THE PROPOSED NONPROLIFERATION TREATY     41

Conference with the question: "... we should like to know the exact meaning of the phrase 'safeguards system' of the International Atomic Energy Agency (IAEA) in paragraph 1. Does it mean the present system, or a system which will be continually amplified? In the latter case, what are the reasons for doing so?" 21

(21)     The Delegation of a nuclear weapon country offered an indirect reply to such questions when it contended: "... the functioning of the IAEA control system has not created any obstacles or difficulties for any country in the field of the peaceful use of atomic energy. We know that there are at present 120 installations in 27 countries under IAEA safeguards. No complaints have come from any of these countries about any obstacles on the part of IAEA to the development of their peaceful atomic
activities." 22 Can this be accepted as proof that the yet-to-be-adopted IAEA safeguards system will indeed afford effective protection against industrial espionage under the guise of routine inspections of plants, materials and blueprints? 23 Can respective reassurance be found in the support given in the Preamble to "the principle of safeguarding effectively the flow of source and special fissionable materials by use of instruments and other techniques at certain strategic points" when both the IAEA Statute and the presently adopted IAEA safeguards system explicitly call for unlimited access to all places and data which are subject to IAEA control? In view of the present state-of-the-art of controls by instruments 24, it is difficult to conceive of the IAEA not to make adequate use of its statutory power for comprehensive and physical on-the-spot inspections.
__________________
21     ENDC/M 362, 9.
22     ENDC/PV. 366, 13.
23     It should be noted that "... almost without exception, these (IAEA-controlled) installations hardly serve to either use or produce enriched uranium or plutonium ... Moreover, the capacity of most of these installations is such that any substantial diversion from their stocks of fissionable material could not fail to be discovered with simple sample controls. For this reason unannounced sample controls of fissionable material stock records by IAEA officials has in the past been sufficient." (Robert GERWIN, "Suche nach den schwarzen Kästen", Die Zeit, Nr. 6. Febr. 9, 1968, p. 37.
24     See the respectively informative paper by D. GUPTA, W. HAEFELE "The Principles of Instrumented Safeguards and the Related Development Programme", International Atomic Energy Agency, Panel of Safeguards (Vienna, 21-25 August 1967):
    "2. . .. If a nuclear weapons fabrication plant was easily detectable this nuclear weapons fabrication plant would undoubtely be the subject for a direct safeguarding if so required, and in this case there would be no feed back to peaceful nuclear energy whatsoever. Now it is virtually impossible to detect nuclear weapons factories as such and therefore one has to detect the flow of fissionable material instead, thus arriving at an indirect scheme of safeguarding which does indeed have a feed back to peaceful nuclear energy.
    3. Therefore, it is the flow of fissionable material which creates the feed back and consequently it is only the flow of fissionable material in the peaceful application of nuclear energy which should be the subject of safeguards, but not the peaceful application of nuclear energy as a whole. The relevant flow of fissionable material is comprised of bomb grade material only; that is Plutonium and enriched uranium.
  4.  If the flow of fissionable material in the peaceful application of nuclear energy could be entirely and effectively contained, this would be the only necessary step. It would be irrelevant to know the amount and the quality of the material, and it would be anyway irrelevant to know about the peaceful application in general. Unfortunately, it is not so easy to contain a flow of fissionable material. To substitute for this deficiency it will be necessary to introduce certain measures which would otherwise be redundant. The most obvious thing then is to ask for the amount and quality of the flow of fissionable material. If this could cover bomb grade material only, this would be sufficient in a first line of defense. If all nuclear material, that is uranium or all enrichments and source material is being included, this has by itself even more redundancy in it. In so doing, one should bear in mind the function of this, namely to substitute for properly containing the flow of fissionable material. This can be used as a criterion for judging upon the necessity of certain safeguards measures.
  7.  This approach ... leaves the inner part of a prinpical nuclear facility untouched, at least in principle. This will be of particular importance for the reprocessing and fabrication plants. It is the cheap fuel cycle which outweighs the higher capital cost of nuclear power plants as compared with conventional plants, and ultimatel makes nuclear power superior to fissile power. In order to have such a cheap fuel cycle, a cheap and effective reprocessing and fabrication with low specific costs must be obtained. In the area of the fabrication techniques for plutonium fuel this is not yet the case. For example, to make a fast breeder reactor commercially attractive, a specific fabrication cost of only $ 100 per kilogram or so must be arrived at. At present the available fuel production technology gives values of $ 200-250 per kilogram or so. All necessary improvements will come from industrial experience and know-how; there is no principal scientific point any more. If, in so doing, instead of $ 100 per kilo, only $ 150 per kilo can be obtained, this gives a change of about 0.3 mills per KWH in the energy production cost. This is so high a figure that it inhibits competition with someone who has specific costs of $ 100 per kilo. It may be recalled that the incentive to develop even a completely new type of reactor starts with something like 0.3 mills per KWH! It is highly likely that the commercial fuel manufacturer and commercial reprocesser have to use the last trick in order to be competitive. A safeguards procedure which concentrates at certain strategic points will suit this situation best. Should not all competing parties be subject to such safeguards, this would be of even greater importance." (emphasis added)
    The Karlsruhe Institute for Applied Reactor Physics developed a mathematical model to determine the influence of the accuracy of the fuel cycle control instruments. Assuming an inventory of 5000 kilo fissile material, it was found that a clandestine diversion of 15 kilo plutonium would be possible within 2 months, 3 years or 10 years with corresponding accuracies of +/-5 %, +/- 1 % or +/- 0.1 %. The presently feasable degree of accuracy is said to be +/- 2 % (GERWIN, op cit.).
 
 

42     H. A. KELLER, H. BOLLIGER, P. B. KALFF

(22)     Irrespective of the reservations one may have with regard to the proposed methods of control for "the exclusive purpose of verification of the fulfilment of (a signatory non-nuclear weapon country's) obligations assumed under this Treaty", the non-academic question arises whether and to what extent a non-nuclear weapon country still holds jurisdiction over some or all of the nuclear facilities and materials located on its territory. Most non-nuclear weapon countries obtain their supply of nuclear material on the basis of agreements with supplier countries or international organizations. Usually, these agreements contain effectively enforced safeguard provisions designed to prevent the recipients from diverting the material thus supplied to uses different from those declared. Other agreements, such as the one reportedly concluded in 1964 between the United States of America, the United Kingdom, the Federal Republic of Germany, and the Netherlands 25, provide for the secret development of highly sensitive nuclear installations which, therefore, are not readily available for such controls as provided for by the present IAEA safeguards system.

(23)     According to adopted principles of international law, obligations evolving from a treaty or other instrument of agreement with one or more countries or international organizations can be entered into only to the extent that such obligations relate to matters which are still or again subject to the respective country's sovereignty. A number of non-nuclear weapon countries might thus find themselves unable to accede on their own free will to the proposed Nonproliferation Treaty without corresponding reservations. 26

(24)     Further pertinent questions concerning this Article have been raised 27 and so far have remained essentially unanswered:

1. "What is the political, legal and ethical concept underlying the position of the sponsors on control?  How does one explain that the draft treaty advocates the application of control solely in relation to the obligations which the non-nuclear States would have to assume under article II, whereas in relation to the obligations to be assumed by the nuclear Powers under article I no measure of control is proposed?  Could it be acceptable that almost all the States of the world - generally speaking, the small and medium-sized States - should be subject to control and that only five countries, namely the nuclear Powers, should not be subject to any control measures?  How could such a profoundly discriminatory concept be reconciled with the sovereign equality of States, a cardinal principle of contemporary international relations, to which all the States represented on this Committee have subscribed as members of the United Nations?"
_________
25     See: Don COOK "Scientists Rush Dutch Into Nuclear Stage" (International Herald Tribune, March 4, 1968, p. 6) where it is reported that "Dutch scientists have achieved . . . ' substantial success' in a process of producing enriched uranium cheaply through ultra-centrifuge."
26     Among others, EURATOM countries fall into this category. In view of EURATOM's comprehensive safeguards system to have proven its effectiveness it would not seem necessary to destroy an operational instrument for the alleged "verification of the fulfilment" of the obligations eventually assumed under the proposed Treaty. Instead, IAEA verification of these and conceivably other regionally executed controls might serve the same purpose at least as well as universally applied IAEA controls. Thereby, the thorny issues of industrial espionage through inspection, and of serious discriminations between EURATOM countries as a result of IAEA controls might at least be reduced to manageable size. The verification-of-controls solution thus envisioned would seem compatible with the adopted IAEA safeguards system which allows the transfer of nuclear material "outside the jurisdiction of the State in which it is being safeguarded (provided that) the Agency has satisfied ifself that ... (d) The material was not subject to safeguards pursuant to a project agreement and will be subject, in the State to which it is being transferred, to safeguards other than those of the Agency but generally consistent with such safeguards and accepted by the Agency." The Agency's . . ., op. cit., § 28).
27     The questions thus quoted have been raised most recently, on February 6, 1968, by the Delegation of a socialist non-nuclear weapon country noted for its independent views and forward-looking approaches to contemporary problems. (ENDC/PV. 362, §§ 7, 11-13, 15).
 
 

44     H. A. KELLER, H.  BOLLIGER, P. B. KALFF

2.    "What is meant by the formula 'all peaceful nuclear activities'? In that regard, how are we to understand the provision that the safeguards required 'by this Article' shall be applied 'on all source or special fissionable material in all peaceful nuclear activities'?"

3.     "What is the purpose of applying the safeguards to all 'source or-special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility'? What is the meaning of the word 'any principal nuclear facility' for the purposes of article III? Furthermore, what is the purpose of applying safeguards on all source or special fissionable material 'outside any such facility'?"

4.     "If the 'exclusive purpose' of implementation of the IAEA safeguards is to prevent the diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices, as provided in paragraph 1 of article III, why is the application of controls advocated on all source or special fissionable material in all peaceful nuclear activities'?"

5.     "For what reasons does paragraph 2 of the same article apply only to deliveries of nuclear material and equipment to non-nuclear States, and why does it not also apply to exports to nuclear countries?"

(25)     It is significant that a draft treaty which is supposed to be ripe for adoption and signature by more than 40 sovereign nations should still give rise to such substantial and highly relevant questions which certainly cannot be dismissed as mere rhetorics. For the purpose of this study, suffice it to attend to the question of discrimination between nuclear and non-nuclear weapon countries with respect to the proposed control of non-military nuclear facilities and activities.

(26)     Though the United States and the United Kingdom have offered to submit their peaceful nuclear activities to the proposed IAEA safeguards system, the respective activities of at least France and the People's Republic of China would almost certainly not be subject to these control mesures. Thus, depending on the interpretation of the term "control anywhere", joint ventures involving both signatory and non-signatory countries might no longer be possible if non-signatory countries would refuse IAEA controls 28. This consequence would be the more deplorable as cooperation between non-nuclear and nuclear weapon countries in the numerous fields of peaceful nuclear energy applications might become a most effective instrument for assisting less developed countries in their strenuous efforts to attain a sufficiently high level of economic and social progress for escaping the vicious circles of low-level resources
__________
28     In the case of EURATOM, joint ventures for peaceful developments and applications of nuclear energy might thus be limited to countries signatory to the proposed Nonproliferation Treaty, thus eventually depriving all EURATOM non-nuclear weapon countries of the transfer-through-joint-ventures of France's advanced know-how, skills and experience in the nuclear fields and vice-versa. As such, this interpretation of "control anywhere" would result in a discrimination among EURATOM countries which would be compatible with neither the spirit nor the text of the EURATOM Treaty. Furthermore, it would raise considerable legal problems regarding the community's own nuclear facilities and other statutory assets, the supply of nuclear material, the Common Market, investments, and EURATOM's health and safety provisions. Referring to the above-cited agreement's secrecy obligations (§ 22 of this text) it is also difficult to see how they could be adhered to if the respective plans and installations were submitted to IAEA controls.
 
 

THE PROPOSED NONPROLIFERATION TREATY     45

development, deteriorating terms-of-trade, widening economic and technological gaps and the subsequent gradual relative impoverishment. It would also be regrettable from the point of view of regional security which might be enhanced substantially by effective regional and supranational instruments of cooperation in economic key fields.

(27)     Irrespective of how "control anywhere" will be interpreted eventually, the obligation to submit installations to a safeguards system would entail costs which would have to be borne either directly or indirectly by the countries involved. As such, these overhead costs might appreciably affect the price of the goods produced in the facilities thus surveyed. Evidently, different safeguards systems may entail different surveillance costs which might affect the competitive position of the corresponding groups of countries. Also, different procedures for assessing a country's share of the safeguards system's operation costs may appreciably influence a country's selling position on the world market for nuclear and nuclear-related commodities. Thus not only exemption from safeguards obligations but different safeguards systems and different costing procedures might give rise to commercially perhaps significant discriminations. A further relevant factor may be a country's degree of resources development and its subsequent capacity to offer attractive credit terms and other favours to potential foreign buyers of its products. A mutually beneficial and fair costing procedure might thus require appreciation and full consideration of all relevant factors, including those involving the interest of competing countries, thus providing for each exporting country to bear a "reasonable and equitable share" 29 of the safeguards system's or systems' total operation costs. Operation of two or more safeguards systems on the basis of equitable cost distribution would then not seem to work to the economic detriment of individual countries or groups of countries any more than operation of a uniform safeguards system could be expected to. Indeed, safeguards systems with a limited range of application may have certain advantages over a uniform safeguards system in that they may be designed to take specific conditions into consideration and promote regional cooperation in the nuclear fields.

(28)     Therefore, if regional safeguards systems could be devised and made to effectively serve the "exclusive purpose of verification of the fulfilment" of accepted safeguard obligations, there would seem to be no compelling reason for foreclosing the benefits of regional safeguards systems, and there would seem to be no valid argument justifying the further insistance on the development and application of a uniform safeguards system which might result in the wrecking of at least EURATOM'S established, fully operational and effective regional safeguards system.
__________
29     For a more detailed indication of what is understood under this term, see the comments on Article V.
 
 

46     H. A. KELLER, H. BOLLIGER, P. B. KALFF

ARTICLE  III

Paragraph 2
  Each State Party to the Treaty undertakes not to provide
     (a) source or special fissionable material, or
     (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material,
to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article.
 

C o m m e n t

(29)     Even a superficial look at the energy demand and supply projections for the rest of this century and beyond impresses the fact that the world's future energy demand may not be met much longer with organic fuels and other conventional energy sources. Moreover, reason suggests that we must husband our organic fuels, that we must stop treating them purely as fuels and view them primarily as raw materials for the chemical industry" 30.

(30)     A promising and attractive answer to this increasingly urgent problem has come within reach of some regions with the event of nuclear energy having been harnessed for electricity generation purposes on competitive terms. With the economics of nuclear power being dependent on various local factors, the break-even point between hydro or thermal and nuclear power plants has, however, penetrated many regions only in the last years or very recently. The almost fantastic upswing of orders for nuclear power plants in the last year in both the United States and Western Europe testifies for this development. For Western Europe the respective market until the year 2000 is estimated to pass the 100.000 million dollar figure. Commenting on the prospects of nuclear energy for developing countries, the late Homid J.BHABHA stated: "The under-developed countries have the lowest reserves per capita of conventional fuels and will require nuclear energy even to reach and maintain the same living standards as the developed countries
_________
30     V. S. EMELYANOV, in his Presidential Opening Address to the Third International Conference on the Peaceful Uses of Atomic Energy, Peaceful Uses of Atomic Energy, A/CONF. 2811, Vol. 1, United Nations, New York 1965, p. 29; ibid.: "Our times have seen significant advances in chemistry, and especially in organic chemistry. The chemical industry has assumed functions which it has never before fulfilled. It has virtually ousted the manufacture of natural silk and replaced it by the production of artificial silk. It is ousting cotton and wool from the textile industry and leather from the boot-and-shoe industry. It is providing considerable quantities of the most varied materials for building, engineering and instrument-making. The raw material for the chemical industry, for the manufacture of plastics, fabrics, artificial leather and similar products are natural gas, oil and coal. Organic fuels provide the chemical industry with its primary materials. If we go on using oil at the present rate, all our oil will soon be burnt up, and the chemical industry will be deprived of a most important source of raw material." (emphasis added)
 
 

THE PROPOSED NONPROLIFERATION TREATY     47

now have. The region of South Asia and the Far East will have exhausted its economically exploitable reserves by the end of the century even at the present rate of increase of energy consumption."31

(31)     These and other authoritative assessments of the future role of nuclear energy in the energy sector alone tend to support the view that the legal and economic availability of a qualitatively and quantitatively adequate supply of nuclear material and related equipments will carry a unique importance for a country's future economic development and progress. Measures designed to eventually curtail or even cut-off the supply of nuclear material and related equipment can thus be considered a formidable threat to the economy of any respectively dependent country. As such, they can be expected to serve their intended purpose of enforcing obligations a country has undertaken in becoming a party to a given respective agreement. Such provisions are included in both the IAEA Statute 32 and the EURATOM Treaty 33.

(32)     Countries which have become members of the IAEA or have acceded to the EURATOM Treaty have done so despite of these agreements' penalty provisions. Thus, they have decided on their own free will that the benefits accruing to them from participation in one or both of these international organisations outweigh the drawbacks possibly entailed in same, and that the obligations evolving from this participation are acceptable and compatible
__________
31     H. J. BHABHA, M. DAYAL, "World Energy Requirements and the Economics of Nuclear Power with Special Reference to Underdeveloped Countries", Peaceful Uses of Atomic Energy, A/CONF. 28/1, Vol. 1, United Nations, New York 1965, pp. 49/50.
32     Article XII, A-7, C (quoted in extenso in the comment on Article III, paragraph 1).
33 Treaty Establishing the European Atomic Energy Community (EURATOM) and Connected Documents, EURATOM, Brussels (without year):

Article 83
1.     In the event of any infringement of the obligations imposed on persons or enterprises under the provision of this Chapter, penalties may be imposed on them by the Commission. These penalties, in order of gravity, shall be as follows:
    (a)  a warning;
    (b)  the withdrawal of special advantages, such as financial or technical assistance;
    (c)  the placing of the enterprise, for a maximum period of four months, under the administration of a person or board appointed jointly by the Commission and the State having jurisdiction over such enterprise; or
    (d)  the complete or partial withdrawal of source materials or special fissionable materials.
2.     Decisions of the Commission which require delivery in implementation of the preceding paragraph shall be enforceable. They may be enforced in the territories of Member States in accordance with the provisions laid down in Article 164.
Notwithstanding the provisions of Article 157, appeals brought before the Court of Justice against decisions of the Commission which impose any of the penalties provided for in the preceding paragraph shall have staying effect. The Court of Justice may, however, at the request of the Commistion or of any interested Member State, order that the decision be enforced immediately. The protection of injured interests shall be guaranteed by an appropriate legal procedure.
3.     The Commission may make any recommendation to Member Slates concerning legislative provisions designed to ensure the observance in their territories of the obligations resulting from the provisions of this Chapter.
4.     Member States shall ensure the enforcement of penalties and, where applicable, the making of reparation by those responsible for any infringement.


48     H. A. KELLER, H. BOLLIGER, P. B. KALFF

with their national interests. Evidence for this can be seen in the fact that practicable alternatives to the adopted course have existed, for as long as neither of the two international organizations had or will have universal membership covering all countries, and as alternative sources for the supply of nuclear material and related equipments have been and will remain available. Therefore, no imperative need curtailed the exercise of the respective countries' sovereignty in deciding to accede to the agreement or agreements in consideration. The penalty provisions thus cited may thus have served, and may continue to serve, as a legal and effective instrument for enforcing the freely adopted principle of equal opportunity for all parties to the same agreement.

(33)     Unfortunately, the same may not apply to the proposed Nonproliferation Treaty's penalty provisions. Insofar as the IAEA Statute and the IAEA or other safeguards systems thus referred to would be intended to be applied for enforcing the obligations thereby undertaken by signatory countries, this Treaty would, of course, provide for the legal use of the above described policing instrument. However, the proposed text stipulates a further use of the same instrument in that it would oblige signatory countries to deny the supply of any nuclear material and some related equipment to non-nuclear weapon countries which have not undertaken certain obligations. This is an entirely different situtuation from the one described above. For one thing, the proposed Nonproliferation Treaty is intended to be as universal as possible, and ultimately may cover all major suppliers of nuclear material and related equipments. And secondly, and as a result thereof, countries may ultimately become signatories to this Treaty because of its penalty provisions.

(34)     Thus, insofar as conclusion, adoption and enforcement of the proposed Nonproliferation Treaty might pressure non-signatory countries to abandon their respective position and to accept obligations which they may consider incompatible with their long-term national interests, this Treaty would become a source of perhaps substantial conflicts 34.

(35)     This almost inconceivable situation casts doubt on the proposition that this Treaty would effectively prevent a country
_________
34     The consequence of a non-nuclear weapon country's failure to accede to the Treaty and submit to its obligations has been outlined rather candidly by the Delegation of a nuclear weapon country:
    "It is quite natural that States not parties to the non-proliferation treaty will not find themselves in so favourable a position from the point of view of participating in the international exchange of information and in other forms of international co-operation, since they will not be able to avail themselves of the opportunities which will be open to the parties to the non-proliferation treaty.  It is natural that those who adopt a positive attitude towards the treaty and become parties to it will enjoy a greater degree of confidence in the development of co-operation in the nuclear field, in the field of the peaceful use of nuclear energy." (ENDC/PV. 366, § 24).
 
 

THE PROPOSED NONPROLIFERATION TREATY     49

from obtaining from any potential supplier country whatever nuclear material and equipments it may require for meeting its present and future demands. A closer look at Article III, paragraph 2, suggests that the Treaty drafts' authors have in fact left open a door which might very well provide for the legal supply of any such material for both signatory and non-signatory countries. Their deliberate respective limitation to nuclear material and related equipments which is intended "for peaceful purposes" thus raises a number of significant questions some of which, however, fall outside the scope of this study 35.

(36)     Mention may only be made of the apparently unrestricted supply of nuclear material and equipments if same were declared to be intended for non-peaceful purposes. Such material might then be used to serve such purposes as development and manufacture of (a) military nuclear propulsion systems (submarines, surface ships, space vehicles, etc.), (b) non-explosive nuclear weapons, and (c) parts of nuclear weapons and other nuclear explosive devices. However, peaceful nuclear activities might thus not be excluded for they might simply be declared to fall into the category of military activities and thus be exempt from all otherwise applicable restrictions 36. This supply avenue might gain particular significance in the event of substantial overhead costs due to safeguards provisions thus reflecting favourably on the selling position of the respective country on the respective world market.
_______
35     The Delegation of a non-nuclear weapon country rightly drew the Committee's attention to one implication of this apparent loop-hole:
" ... article III contains no conditions on the export to the nuclear-weapon States of fissionable material, equipment and so on for their military or peaceful nuclear programmes. We maintain that that is a serious limitation in the scope of the treaty; in fact it is a loop-hole by which non-nuclear weapon States may, without ever knowing it themselves, be aiding a military nuclear programme." (ENDC/PV. 363, § 23);
    This apparent loop-hole would not seem to fit Principle A of the United Nations General Assembly Resolution 2028 (XX) which reads: "The treaty should be void of any loop-holes which might permit nuclear or non-nuclear Powers to proliferate, directly or indirectly, nuclear weapons in any form. "
36     With the growing public confusion of such expressions as military purposes, peaceful purposes, war, and peace - vide the insignia of the strategic air force of a super power which reads: peace is our mission; consider that wars have been and are being fought in the name of peace; remember the very significant economic and social functions of a war society and its military systems; and, last but not least, look at the actual situation of international commerce and discover the various shades, degrees, stages, colours, forms and temperatures of economic wars being fought, won, lost, escalated and perpetuated between and against individual nations and regions or groups of nations and regions - it should indeed not be beyond the ingenuity of politicians to find and successfully advertise a military function in any essentially peaceful nuclear project, and vice versa.
 
 

50     H. A. KELLER, H. BOLLIGER, P. B. KALFF

ARTICLE  III

Paragraph 3

The safeguards required by this Article shall be implemented in a manner designed to comply with Article IV of this Treaty, and to avoid hampering the economic or technological development of the Parties or international co-operation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes in accordance with the provisions of this Article and the principles of safeguarding set forth in the Preamble.
 

C o m m e n t

(37)     Insofar as Article IV may be interpreted by any signatory nuclear weapon country as prohibiting nuclear explosives research and development 37, this paragraph would not seem to afford legal protection against an implementation of the eventually adopted safeguards procedures hindering, discriminating or even prohibiting research and development work which might have significance for nuclear explosives designs and appications. To what extent such restrictions might entail consequences of economic significance is also a question which so far seems to have escaped both analysis and discussion. This is the more regrettable as such restrictions might derive strenght from both Article I and II 38. Suffice it to mention the possibility for respective economic consequences, with the analysis of their quality and quantity being left to a more profound respective study.
_________
37     In the bilateral 'Agreement between the European Atomic Community (EURATOM) and the Government of the United States of Arnerica" concerning the peaceful utilisation of nuclear energy (EURATOM, Bruxelles 1964, p. 14) Article XI says:
    "The Community guarantees that (1.) No material, including equipment and devices, transferred pursuant to this Agreement to the Community or persons within the Community will be used for atomic weapons, or for research on or development of atomic weapons, or for any other military purpose." (emphasis added)  As such the restrictions applying to EURATOM countries would be distinctly more precise and explicit than those provided for in the proposed Nonproliferation Treaty.
38     The Delegation of a non-nuclear weapon country thus commented "Seeing that under paragraph 1 of article Ill control will be exercised over all peaceful nuclear activities of non-nuclear States, how would it be possible to carry out the provisions of paragraph 3, which stipulates that the economic and technological development of the Parties to the Treaty must not be hampered? How could such control be reconciled with the principle of non-interference in the internal affairs of States?" (ENDC/PV. 362, § 14).
 
 

THE PROPOSED NONPROLIFERATION TREATY    51

ARTICLE  Ill

Paragraph 4

Non-nuclear-weapon States Party to the Treaty shall conclude agreements with the International Atomic Energy Agency to meet the requirements of this Article either individually or together with other States in accordance with the Statute of the International Atomic Energy Agency. Negotiations of such agreements shall commence within 180 days from the original entry into force of this Treaty. For States depositing their instruments of ratification after the 180-days period, negotiation of such agreements shall commence not later than the date of such deposit. Such agreernents shall enter into force not later than eighteen months after the date of initiation of negotiations.
 

C o m m e n t

(38)     As indicated in the comment on Article III, paragraph 1, the provision for agreements to be concluded between signatory non-nuclear weapon countries and the IAEA presupposes a measure of sovereignty which some non-nuclear weapon countries may no longer dispose of, due to previously concluded respective agreements. Thus, obligations for signatory non-nuclear weapon countries could be undertaken only to the extend that the issues to be negotiated and agreed upon would still be, or in due course would again have become, subject to the involved nations' sovereign right for independent decision. Any obligation regarding time limits set for starting respective negotiations and for arriving at respective agreements would not in any way alter this basic legal limitation.

(39)     To the extent that previously concluded agreements between suppliers and receivers of nuclear material and related equipments would assure a continuing supply of such material and equipment irrespective of a country's participation or non-participation in the proposed Nonproliferation Treaty 39, failure of a country to reach agreement with the IAEA in the prescribed time, or to accede to thisTreaty at all, would seem to be economically inconsequential 40. Non-nuclear weapon countries which could rely for their nuclear material and equipments supply on such inter- or supranational organizations as the International Atomic Energy Agency or EURATOM would thus be in a distinctly better position to eventually negotiate with the IAEA on the control of all their nuclear installations, than would be countries which so far have relied exclusively on bilateral respective agreements with other countries which might become a party to this Treaty.

(40)     This presupposes that the supplying signatory countries would interprete the proposed Nonproliferation Treaty to the effect that the respective restrictions evolving from Article III,
_________
39     For the immediate future, only member countries of IAEA or EURATOM might be in a position to continue to receive from these sources or by way of them the material and equipment needed for the operation of nuclear facilities which have already been or will be placed under either IAEA or EURATOM controls. Thus it is conceivable that a country which has submitted only part of its nuclear installations to international controls and is holder of long-term supply agreements for the respective installations with either IAEA or EURATOM need not for imperative economic reasons accept unfavourable conditions for coming to an agreement with the IAEA within the time limits set, or for that matter accede to the Treaty at all.
40    In an interview with Erich REYHL, the Chief Delegate of a nuclear weapon country was asked: "What would happen if countries would fail to reach an agreement with the IAEA in time on the control method?" His reply, as communicated by Mr. REYHL to the authors: "That could indicate a breach of contract as the involved states would have ratified the Nonproliferation Treaty without in reality having acceded to it."
 
 

52     H.A. KELLER, H. BOLLIGER, P. B. KALFF

paragraph 2, would apply to individual non-nuclear weapon countries only, but not to communities of nuclear and non-nuclear weapon countries which are entrusted with the facilitation of transfers of nuclear material and related equipments and services among member countries under strict observance of mutually agreed-upon safeguards.

(41)     An interpretation to the effect that Article III, paragraph 2, would cover both individual non-nuclear weapon countries and such international organizations as IAEA and EURATOM would seem to be incompatible with long-term supply agreements between these organizations and their partners 41 and Article IX of the IAEA Statute which provides for the supply of source and special fissionable material by IAEA member countries to the IAEA itself and other IAEA member countries. Sanctions eventually taken against non-signatory non-nuclear weapon countries, or countries which failed to conclude the requested agreement with the IAEA in time, to the effect that such countries would be denied prompt supply of nuclear material and related equipments, might thus be either ineffective or illegal, provided the countries in question were either members of EURATOM or holders of valid supply contracts with the IAEA.
 

(42) S u m m a r y

1. The Treaty would provide for the control of the peaceful nuclear activities of the signatory non-nuclear weapon countries only, thus entailing undue economic advantages to signatory nuclear weapon countries.

2.     The Treaty might prevent future cooperation between, and joint nuclear projects of nuclear weapon ond non-nuclear weapon countries thus eventually closing a tested avenue for effective and efficient transfers of non-military nuclear know-how, skills and experience. As such the Treaty might jeopardise such promising development works as the ultra-high-speed centrifuge for isotope separations.

3. The Treaty presupposes a measure of sovereignty in the fields of nuclear energy development and applications which numerous countries no longer dispose of.

4.     The Treaty might hinder the effective and efficient operation of existing and potentially forthcoming regional instruments of cooperation in the peaceful development and application of nuclear energy thus eventually causing the disintegration of successful existing, and preventing the creation of similar instruments which are or might be particularly benefitial to the regions thus covered.

5.     The Treaty might serve as an instrument for economically forcing non-nuclear weapon countries to accede to the Treaty against their will, thus eventually impeding the application of its own withdrawal-clause and raising substantial legal questions.

6.     The Treaty might fail to prevent even a signatory non-nuclear weapon country from legally obtaining from any potential supplier country any desired nuclear material and related equipment, provided such supplies were formally declared to be intented for non-peaceful purposes. Such supplies would then not be subject to any international safeguards.

7.     The Treaty might thus afford legal acquisition of bomb grade nuclear material, and facilitate on the territory of non-nuclear weapon countries the legal maintenance of uncontrolled nuclear facilities serving any military purpose, including the development and manufacture of parts of nuclear explosives.

_________
41     See the various agreements between IAEA and member countries which supply nuclear material, and the Agreement..., op. cit. which provides for the supply of various nuclear material, including enriched uranium and plutonium, to EURATOM by the United States and which is to remain in force until December 31, 1995, with no provision for unilateral withdrawal.
 

THE PROPOSED N ON PROLIFERATION TREATY 53

ARTICLE  IV

1.     Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.

2.    All the Parties to the Treaty have the right to participate in the fullest possible exchange of scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other States or international organizations to the further developnnenf of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty.
 

C o m m e n t

(43)     The Delegation of a non-nuclear weapon country expressed the view : "This article is very important because it is an attempt to codify a new human right. Men of our century, who are grouped in nations, must have the opportunity and indeed the right to integrate themselves in the process of change which is characteristic of our era. For this to be possible and for the good intentions expressed in article IV of the treaty to attain their full practical scope, the non-nuclear nations must be sure that they can rely at all times on access to a supply of raw materials - a supply which alone will in practice give them access to the world of modern science and technology. To the right to technological information which can be regarded as a spiritual conquest of our era, we must add the right to nuclear supplies, which are its material complement." 42
___________
42     ENDC/PV. 367, § 57.
 
 

54     H. A. KELLER, H. BOLLIGER, P. B. KALFF

(44)     To what extend does Article IV lend actual support to this hopeful outlook? For one thing, this Article could serve to safeguard the status quo in the field of nuclear sciences, with the nuclear weapon countries retaining the right of unlimited nuclear research, development and applications, and the countries now dependent on them for the supply of nuclear material (e.g. enriched uranium and plutonium) and/or whose installations now are, or in the future would be subject to bilateral or international control measures, thus being in the future as in the past limited to nuclear energy programs designed for peaceful purposes.

(45)     This limitation is reported to have had its economically positive consequences in that concentration of nationally available resources to peaceful programs in some instances and fields has led to a respective research and development edge. An investigation of the positive and negative effects of this past limitation on the national economies involved has yet to become known. Considering the various value judgements and intangibilities which would have to be taken into account, a respective study could in any case not be expected to offer a conclusive answer on whether, on balance, the limitations thus imposed worked out to the involved countries' over-all advantage or disadvantage 43.

(46)     The respective uncertainties concerning past economic implications, nevertheless, do not necessarily apply to the available foresight regarding the same and possible further limitations' economic consequences. Insofar as progress in the established fields of nuclear sciences is concerned, Article IV would not appear to entail respective limitations beyond those already in force. However, with the event of the first peaceful application of a nuclear explosive in a concrete project already on the books, and with further applications becoming more likely with every successful test in respective development programs, Article IV gains particular significance with regard to research and development of nuclear explosives. The Article stipulates that the statutory "guarantees" for free research, development, production and use of nuclear energy for peaceful purposes be valid only to the extent that such activities will be "in conformity with Articles 1 and II of this Treaty". If meant to cover nuclear explosives research and development 44, this provision would affect, and for signatory non-nuclear weapon countries either prohibit or severely limit the
________
43    It may be noted that even if these limitations would have been definitely and substantially to the disadvantage of the countries involved, such consequences could be considered to constitute the "price" for the relative security believed to be associated with the subsequently assured restriction of military nuclear capabilities to a few and allegedly more responsible countries.
44     The record might support either view. The Delegation of a nuclear weapon country stated: " ... it is necessary to emphasize that this agreement provides for the limitation or prohibition only of those specific types of activities of States in the field of the use of atomic energy which are related to the manufacture, transfer or acquisition of nuclear weapons; that is to say, in the military field." (ENDC/PV. 366, § 6); see also footnote 37 of this text [cf: footnote 8].
 
 

THE PROPOSED NONPROLIFERATION TREATY     55

possibility for research on, and development and applications of nuclear explosives, even for peaceful purposes.

(47)     This new limitation may be viewed as a necessary extension of Article II insofar as unrestricted research on, and development of nuclear explosives for peaceful purposes might serve to develop at least potentially a relatively quickly available national military nuclear capability. However, when considering the spin-off benefits entailed in nuclear explosives research and development 45,
________
45   Following is a summary of indications that nuclear explosives research and development may entail, and substantially affect the rate of, progress in at least such potential key fields as high-frequency, laser, neutron and controlled fusion research, development and applications.
    In an appendix to the report on Nuclear Construction of a Sea-Level Canal and Cost of Nuclear Excavations (U.S. Atomic Energy Commission, Panama Canal Company, Washington 1960 - derestricted 1963), entitled "Advantages Obtainable with Further Development of Nuclear Explosives" it is stated:

"The AEC is working on new nuclear explosives designed for industrial applications. Development of nuclear explosives specifically for excavation applications has only recently been initiated and is directed toward an explosive that will be completely clean, much more flexible and much less costly than present device designs. Continuation of the present design with accompanying test programs to confirm design criteria should lead to the development of an explosive with essentially no fissionable material."
    At present the fusion process can he considered the most promising source of kinetic energy which may be used for large-scale excavations and other peaceful purposes, such as "blowing out" a hurricane, controlling the weather, etc. The deuterium-tritium, fusion process requires an igniting temperature of some 46 million degree Celsius, the deuterium-deuterium fusion process some 410 million degree Cehius. Conventionally, a fission device has been used to supply this temperature, the fission-fusion material ratio of nuclear explosives designed for peaceful applications being perhaps less than 1:100. Fissionable material - except for tritium nuclides produced by pure fusion - is the only source of primary radioactivity, secondary radioactivity being induced only to the extent that neutrons released by nuclear explosion will not be absorbed by specially developed neutron-absorbing jackets thus penetrating and activating the non-neutron-absorbing material surrounding the center of the explosion (see S.GLASST0NE, "The Effects of Nuclear Weapons ", USGPO, Washington 1962). Fissionable material reportedly is also considerably more expensive in terms of resources involved than fusion material which is both abundantly and - relatively - readily available. Elimination of fissionable material in nuclear explosives is thus desirable both from the point of view of safety and economics. Alternative sources of sufficiently high temperatures are expected to involve the use of high-energy laser, high-frequency power, and other high energy concentration techniques eventually suitable for controlled fusion.
    From this it follows that:
a) high-frequency, laser and controlled fusion research can be expected to be stimulated substantially by a high budget priority for arriving at an industrially applicable "clean" nuclear explosive;
b) success in such fields as high-energy laser, high-frequency and controlled fusion research may lead to an all-fusion nuclear explosive (the availability of which may have as much military as non-military significance and implications); and that
c) neutron research may lead to practical means affording to absorb over 99% of all neutrons released by a nuclear explosion (whereby such means may also have both military and non-military applications).
 
 

56     H. A. KELLER, H. BOLLIGER, P. B. KALFF

the security objective may no longer be viewed as the only possible reason for this far-reaching provision, irrespective of the validity and degree of importance one may attach to the Treaty's advertised security objective. These spin-off benefits can be expected in the form of prime stimuli to high-frequency, laser, neutron and controlled fusion research, and in the form of technical and managerial skills in these probable key fields of science and technology in the future.

(48)     This raises the question of whether and eventually to what degree the extensive popularity of the nonproliferation idea has served as a convenient pretext for furthering other than legitimate security interests. To some degree, the institutionalization and international sanctioning of existing monopolies may be inavoidable with a treaty of this nature, irrespective of the possible economic key sectors thus involved. Nevertheless, no convincing argument has so far become known which could justify extension of these monopolies to eventually include the entire and potentially significant fields of research on, development, production and peaceful applications of nuclear explosives.

(49)     The available information contains at least two tangible indications to the effect that one can no longer rule out the possibility of unadvertised non-security objectives being linked to this Treaty:

1.     The economic and technical feasibility of the nuclear excavation technology per se has been a fact for at least five years. As far as the United States are concerned, indications are that for both political and legal reasons, this technology has not been put to the test involving an actual civilian project until last December, but has only been developed with the use of high-yield chemical and low and medium yield nuclear explosives, within the framework of the battered PLOWSHARE PROGRAM. This technology has in this course been subject to detailed technical and economic analysis. All publicly available evidence indicates that given suitable demographical, topographical, geological and meteorological conditions, suitable projects involving the use of one or more presently available nuclear explosives with yields equivalent to up to and over one million tons of TNT could be executed promptly, economically and safely as far as internationally adopted safety standards are concerned. Despite of these officially published assertions, the term ' if and when peaceful applications of nuclear explosive ... prove technically and economically feasible " has in the past two years been used repeatedly at the Disarmament Conference by a Delegation which should have known better 46. These statements - in- and outside of the context from which they are taken - have done everything except clarified the actual state of the art of nuclear
_________
46     ENDC/PV. 280, p. 15; ENDC/PV. 295, § 73; ENDC/PV. 303, § 20.
 
 

THE PROPOSED NONPROLIFERATION TREATY     57

excavation. As such they put into a new perspective the considerable efforts dispensed by some governments to convince governments of non-nuclear weapon countries of the wisdom and desirability of concluding and participating in the proposed Nonproliferation Treaty.

2.     Despite repeated urgings of some Delegations to the Disarmament Conference that the principle of balanced rights and obligations be adhered to and that in particular provisions be worked out affording all signatory non-nuclear weapon countries to fully participate in the non-military benefits accruing from research on and development of nuclear explosives 47, the revised treaty text of March 11, 1968, contains no main body provision to that effect 48Of course, the signatory countries would affirm "the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear weapon States." But then, the Preamble containing this affirmation would not legally bind any signatory country and as such would serve to place on record such other intentions and desires as "the cessation of the nuclear arms race", a "general and complete disarmament under strict and effective international control" and other commendable objectives at exactly no more costs than it costs to print them. The concession to admit the principle in question to the Preamble rather than to the Treaty itself can thus not be considered as such and may therefore, and in this form, be rejected for good reasons. Indeed, if this "concession" is the nuclear weapon countries' considered answer to the above cited urgings for provisions affording prompt, equitable and effective access to all non-military benefits accruing from nuclear explosives research and development, it is difficult to accept the contention that the proposed Nonproliferation Treaty has been intended solely for the purpose of serving the security interests of a security-minded world community.

___________
47    ENDC/161; ENDC/178; ENDC/PV. 310 § 10-12: At least on the question of balanced rights and obligations, a basic disagreement seems to have evolved between some nuclear weapon and non-nuclear weapon countries. The UN General Assembly Resolution 2028 (XX) which serves as the Committee's terms of reference, explicitly says:
    "The treaty should embody an acceptable balance of mutual responsibilities and obligations of the nuclear and non-nuclear Powers."
Nonetheless, the Delegation of a nuclear weapon country took the position:
    "... those who look for a quid pro quo seem to consider this treaty as if it were a commercial contract in which each party seeks to trade off concessions in order to gain equal financial or trade benefits. However, the non-proliferation treaty is not that kind of agreement; its primary benefit accrues to all of us directly in the form of enhanced security and not as a result of balanced concessions." (ENDC/PV. 362, § 25 ; ENDC/PV. 363, §§ 8, 43, 44)
48     This provision has not been altered in respect to the draft of August 24, 1967 (ENDC/192; ENDC/193), yet has been criticised before and after submission of that draft by several Delegations: ENDC/PV. 327, §§ 13-18 ; ENDC/PV. 344, §§ 6-9.
 
 

58     H. A. KELLER, H. BOLLIGER, P. B. KALFF

(50)    Further indications to the above effect could become available if and when the rumored incidents 49 which led to the telling nickname "General Electric Proliferation Treaty" will have been verified.  Presently available information suggests, however, that in one case the reported intervention on behalf of an interested firm, and in direct reference to the allegedly forthcoming restrictions due to the Nonproliferation Treaty, have not engaged the responsibility of the governments of the countries involved, but resulted from somewhat original hard-sell business practices of private firms.  Nevertheless, and in any case, one may wonder whether treaty provisions creating, or extending existing monopolies in economically sensitive industrial fields for whatever purpose, do not automatically invite undue discriminations on the respective world market, irrespective of the involved governments' respective position, actions, or lack of actions.

(51)    This tends to support the view that the Nonproliferation Treaty would not provide the expected legal basis affording those countries which might no longer be allowed to engage in nuclear explosives research and development to obtain in due course even the non-military benefits accruing from such work from signatory nuclear weapon countries. Essentially, it would be up to the authorities of the nuclear weapon countries to decide whether, when, on what terms and to which country they should make such benefits available.  Significantly, this practice could - but not necessaily need - defeat the very security objective of the efforts for "bringing the nuclear genuis back into the bottle".  This is so because the so-far proposed ways for achieving that commendable, yet perhaps inattainable objective may entail undue jeopardy to another and perhaps even more effective source of security, namely substantial and sustained social and economic progress through optimum development and application of nationally available human, natural and financial resources science and technology afford.
________
49    One of them has been reported by John W. FINNEY in The New York Times, European Edition, March 2, 1967: "... European fears (are) that, under the treaty to forbid proliferation, the atomic powers would hold an advantage in developing the peaceful uses of atomic energy.  The European fears, according to [Washington] diplomatic sources, were also hightened by a recent incident in a competition between an American and a West German concern to sell an atomic power plant to Spain.  Representatives of the American company identified as General Electric by State Department officials, were reported to have told the Spanish authorities that under a treaty against proliferation, the Germans would not be able to deliver atomic fuel for the plant."  Another reliably reported incident involves a similarly lost contract with Finnish authorities.  For a respectively revealing review of nuclear power plants in operation, under construction, or approved for construction, listed according to countries, contractor, capacity, type, supplier and year of start of operations, see: Paul Bähr, "Die Kernindustrie in der europäischen Gemeinschaft", Neue Technik, B6/1966, Zürich, pp.328-31.
 
 

THE PROPOSED NONPROLIFERATION TREATY     59

(52) S u m m a r y

1.     Progress in at least three potential key fields of science and technology may be affected directly and substantially by research on and development of nuclear explosives, namely high-frequency, laser, neutron and controlled fusion research, development and applications.

2.     Respective research, development and application work produces technical and management skills in the most advanced fields with feedback on other development work, thus eventually enabling a country to come to, be and remain at least in a few key fields at the forefront of scientific and technological advances as a first tangible foothold eventually affording to arrest and reverse the dangerous world-wide trend of growing gaps in essential fields.

3.     Therefore, substantial economic benefits of a non-military character can be expected to result from intensive research on and development of nuclear explosives.

4.     Depending on how Articles I and II would be interpreted by the signatory nuclear weapon countries, Article IV of this Treaty might serve to ban signatory non-nuclear weapon countries from engaging - either individually or in cooperation with other countries - in research on and development of nuclear explosives, thus denying them a high-degree motivation vehicle affording acquisition of the non-military benefits entailed in such research and development work.

5.     The proposed Nonproliferation Treaty contains no legally binding provision affording prompt, complete and economically feasible access to any actual or potential non-military benefit entailed in the nuclear weapon countries' unrestricted and continuing research on and development of nuclear explosives.

6.     Therefore, the proposed Nonproliferation Treaty might adversely and substantially affect the economic development of signatory non-nuclear weapon countries, thus giving rise to conditions which would seem to run against the apparent longterm interests of both nuclear weapon and non-nuclear weapon countries in that the Treaty's advertised main objective, security, would thereby seem to be jeopardized rather than promoted.


60     H. A. KELLER, H. BOLLIGER, P. D. KALFF

ARTICLE V

Each Party to this Treaty undertakes to co-operate to insure that potential benefits from any peaceful applications of nuclear explosions will be made available through appropriate international procedures to non-nuclear-weapon States Party to this Treaty on a non-discriminatory basis and that the charge to such Parties for the explosive devices used will be as low as possible and exclude any charge for research and development. It is understood that non-nuclear-weapon States Party to this Treaty so desiring may, pursuant to a special agreement or agreements, obtain any such benefits on a bilateral basis or through an appropriate international body with adequate representation of non-nuclear-weapon States.
 

C o m m e n t

(53)     In accordance with the previously cited statements of guarded skepticism on the nuclear excavation technology's economic and technical feasibility, one of the first drafts for a Nonproliferation Treaty which was tabled in Geneva 50 contained no mention whatseover of this technology, even though it must have been evident to its authors that any measure designed to prevent a horizontal proliferation of both nuclear weapons and other nuclear explosives could not fail to directly affect the availability of nuclear explosives for peaceful purposes for all countries not already possessing tested nuclear explosives. The implications of this unqualified restriction was immediately recognized and criticized formally by Delegations to the Disarmament Conference 51. At first, the arguments thus presented failed to produce more than a gesture of good intent on the part of the principal two nuclear weapon countries, for the revised draft of August 24, 1967, in the legally not binding Preamble to the Treaty, provides for no more than the signatory countries' "intention that potential benefits from any peaceful applications of nuclear explosions should be available ... to non-nuclear weapon States Party to this Treaty."

(54)     In the meantime, however, the first civilian project involving a nuclear explosion has been carried out successfully on December 101 1967 52. Thus, the strong demands by Delegations at the Disarmament Conference for an adequate and effective protection of the non-nuclear weapon countries' respective interests could no longer be satisfied with statements of good intent, coupled with assurances that the technology is anyway not yet, and indeed is not even certain to ever become economically and technically feasible, for which reason there is no need to discuss the matter now and in this context. Thus, the revised Treaty draft of January 18, 1968, contained what on first glance appeared to be a major concession on the part of the participating nuclear weapon countries in that the former intention has been elevated to "a formal commitment to share the benefits of the peaceful applications of nuclear explosions"53 as one Delegation put it. Considering the apparent reluctance with which this commitment has been taken, and considering in particular the conceivable political and economic implications of such a commitment - which undoubtedly have been a respectively restraining factor - a critical look at this apparent key Article would seem to be indicated.
_________
50     ENDC/152.
51     ENDC/PV. 297 §§ 41 43; ENDC/PV. 304 § 14; ENDC/PV. 310 3-13; ENDC/PV. §§ 38, 53-57.
52     International Herald Tribune, Dec. 11, 1967; ENDC/PV. 359, §§ 26-35; ENDC/213.
53     ENDC/PV. 359, § 22.
 
 

THE PROPOSED NONPROLIFERATION TREATY     61

(55)     The questions which demand to be answered in this connection include, but are not limited to the following few:

1.     Would Article V, (a) by itself, (b) in the context of the whole Treaty, and (c) in the context of this Treaty and other relevant agreements in force, constitute a sufficiently strong legal basis for assuring, all signatory non-nuclear weapon countries of the availability of the nuclear excavation and other technologies involving the peaceful use of nuclear explosives?

2.     Would Article V provide for the nuclear excavation and other technologies involving the peaceful use of nuclear explosives to be within effective reach of the nationally available economic resources of each interested signatory non-nuclear weapon country?

3.     Would Article V provide effective safeguards against a government of an involved country exercising any undue direct and/or indirect economic and/or political influence on the interests of another or other signatory countries participating in whatever capacity in the implementation of a project involving the use of nuclear explosives for peaceful purposes?

4.     Would Article V assure the creation of institutions, and the adoption of procedures which - serving to investigate, approve and execute projects involving the use of nuclear explosives for peaceful purposes - would fully meet the very special requirements evolving from the characteristics of nuclear explosives applications, and thus would insure the safe and economic application of the various nuclear explosives technologies with due consideration of all legitimate interests thereby affected?

(56)     A clear understanding of the relevancy of these questions may at the present time be at least as important as precise and reliable answers to them. For the long-term economic implications of either positive or negative answers to the above questions will be appreciated in their true dimensions only in the presence of that essential understanding. Therefore, particular reference is made to some recent publications which indicate the opportunities created by the economic availability of the nuclear excavation technology in various fields of resources development, which outline the technology's benefits and present and foreseeable drawbacks, and which indicate apparent economic, technical and institutional limits to the various ways in which nuclear explosives may be applied for peaceful purposes 54. Tentative answers to the above questions may then be sought with the help of customary instruments of treaty interpretation.
__________
54     The Princeton research institute MATHEMATICA, for the U.S. Atomic Energy Commission, is presently carrying out a comprehensive investigation of the economics of using nuclear explosives for various peaceful tasks. Preliminary respective reports already published, or expected to be released soon, include: K. P. HEISS, O. MORGENSTERN "General Report on the Economics of Peaceful Uses of Nuclear Explosions", PNE-3005, Princeton 1967; K. P. HEISS "Economic Potential of Natural Gas Production Stimulated by Nuclear Explosions", PNE-3007, Princeton 1967; K. P. HEISS "Technical and Economic Potential of Shale Oil Production by Nuclear Explosions", PNE-3006, Princeton 1967; G. COHEN "Water Resource Applications of Plowshare", Princeton 1967; H. A. KELLER "PLOWSHARE - A New Key to Water Resources Development", DOUBLEKAY-6702, Basle-Princeton 1967. See also: C. R. GERBER, H. E. VORESS "PLOWSHARE - A Selected. Annotated Bibliographr of the Civil, Industrial, and Scientific Uses for Nuclear Explosives", TID-3522 (latest ed.) CFSTI, Springfield VA.
 
 

62     H. A. KELLER, H. BOLLIGER, P. B. KALFF

1.   LEGAL AVAILABILITY OF PEACEFUL NUCLEAR EXPLOSIVE SERVICES

(57)     Article V is the only Article in the present draft Treaty referring directly to the peaceful applications of nuclear explosives. Insofar as other Treaty provisions may alter the meaning and implications to this Article, it is indicated to seek first the essence of Article V proper in light of the available preparatory material which led to this Article's present formulation. Three elements characterize this key Article :

1)     A commitment by all signatory countries for cooperation in order to insure the availability of "potential benefits from any peaceful applications of nuclear explosions" to signatory non-nuclear weapon countries on a non-discriminatory basis.

2)     A commitment by all signatory countries for cooperation to the effect that the charge to signatory non-nuclear weapon countries for the explosive devices used will be "as low as possible and exclude any charge for research and development".

3)     An understanding by all signatory countries that signatory non-nuclear weapon countries may obtain said benefits either on a bilateral basis or "through an appropriate international body with adequate representation of non-nuclear-weapon States. "

(58)     The wording of the first commitment appreciably differs from the wording used in respective statements made prior to January 18, 1968, by Delegations of nuclear weapon countries. Repeatedly, Delegations of non-nuclear weapon countries have demonstrated their interest in the availability of "nuclear energy in the form of explosive devices intended for peaceful exploits, such as engineering works, mining activities and other civil uses." 55 On the other hand, Delegations of nuclear weapon countries have on various occasions and repeatedly indicated their willingness to make nuclear explosives and related services available to signatory non-nuclear weapon countries on a non-discriminatory basis if they are satisfied that the explosives will be used for peaceful purposes only. Thus, interested countries would be permitted to perform their own respective engineering work, "utilizing nuclear explosives detonated under the control of a nuclear-weapon State" 56. However, statements made after the new joint draft was tabled in Geneva fail to specify nuclear explosives services and pledge no more than "to make available, as widely as possible, the benefits of the peaceful application of nuclear explosions". 57
__________
55     ENDC/PV. 297, §§ 42, 43; ENDC/PV. 304 § 14; ENDC/PV. 310, § 10-12; E NDC/PV. 327 §§ 16, 53.
56     ENDC/PV. 303, § 15.
57     ENDC/PV. 359, § 22; the only direct indication that these benefits may actually include nuclear explosive services carried out on the territories of non-nuclear weapon countries is contained in a statement by the Delegation of a nuclear weapon country: "... we realize that the renunciation by non-nuclear weapon countries of the manufacture or acquisition of nuclear explosive devices should in no way cause them any detriment if in future the need should arise for them to conduct peaceful nuclear explosives for the implementation of particular projects connected with the development of their national economies." (ENDC/PV. 357, § 26; see also ENDC/PV. 366, § 17).
 
 

THE PROPOSED NONPROLIFERATION TREATY     63

(59)     Evidently, a commitment to "cooperate to insure that potential benefits from any peaceful applications of nuclear explosions will be available" to signatory non-nuclear weapon countries need not entail a positive obligation on the part of any signatory nuclear weapon country to make available - simply on request and after presentation of favourable findings of an objective preinvestment study - nuclear explosives for peaceful applications involving the territory of one or more signatory non-nuclear weapon countries. For potential benefits from peaceful applications of nuclear explosives may consist of anything from hurricane or weather control, new insights into the dynamics of earthquakes and crater formation, to new findings of soil mechanics, seismology, meteorology, radiobiology and thermo-dynamics, none of which would necessarily entail the application of a nuclear explosive in a non-nuclear weapon country.

(60)     Against this background, the use of new terms - which appear to extend the range of benefits from nuclear explosions available to signatory non-nuclear weapon countries - raises the significant possibility for the signatory nuclear weapon countries to retain considerable discretionary power over the terms under which the requested nuclear explosives services will become available to interested signatory non-nuclear weapon countries. This possibility does not seem to be substantially curtailed by either the commitment to charge as little as possible for the nuclear explosives used, or the understanding to make them, that is to say the benefits accruing from them, available either on a bilateral basis or through appropriate international institutions.

(61)     By itself, Article V would thus not seem to constitute a strong legal basis for the signatory non-nuclear weapon countries to obtain from signatory nuclear weapon countries all necessary material and services for executing a project involving the peaceful use of nuclear explosives on their own territories. Moreover, the remaining Treaty provisions would not seem to diminish or even eliminate this Article's respective weaknesses - quite the contrary. The reason for this - as outlined in the respective comment - is that Article I makes no distinction whatsoever between nuclear explosives for peaceful purposes and nuclear weapons. Indeed, it explicitly says "nuclear weapons or other nuclear explosive devices" must not be transferred to "any recipient whatsoever"
 
 

64     H. A. KELLER, H. BOLLIGER, P. B. KALFF

in any way either directly or indirectly. In the context of Article I - which is the only one having any direct bearing on peaceful applications of nuclear explosives - Article V would thus seem to offer positively no workable basis for the signatory non-nuclear weapon countries to secure the benefits of an actual project involving the peaceful use of nuclear explosives on their own territories. Conceivably, this state-of-affairs could continue at least until the first respective precedent would have been created, and for this to happen would obviously depend less on the intentions of the signatory non-nuclear weapon countries than it would on the intentions of any nuclear weapon country.

(62)     This leads to the question of whether all nuclear weapon countries are really free to decide on their own which projects involving the peaceful use of nuclear explosives may be executed and which must be postponed or cancelled for whatever reason. The answer is that no signatory nuclear weapon country of the 1963 Nuclear Test Ban Treaty is entirely free to do so. The respective limitations evolving from that agreement have been outlined in the comment on Article I. No other limitations, except those stemming from generally adopted principles of good neighbourhood and international law on compensation for damages to life and property 58, are known to be in force concerning the peaceful application of nuclear explosives.

(63)     These limitations have in the past resulted in a severe blow to the United States PLOWSHARE PROGRAM in that several key tests designed to further the knowledge on nuclear excavations with high-yield nuclear explosives and with the simultaneous firing technique have been postponed apparently indefinitely. Presumably, the above cited first civilian project "Gasbuggy" received the green light only because it involved a deep burial nuclear explosion entailing no release of radioactive debris to the atmosphere beyond the territorial limits of the United States - or the excavation site for that matter. Present explosive designs have - in the case of surface excavations - resulted in a reduction in the radioactive debris released to the atmosphere over that entailed in a comparable application of a 1958 nuclear explosive device by a factor of up to and over one thousand. 59 This constitutes a very substantial progress attributable primarily to the success
________
58    Considering the characteristics of the nuclear excavation and other nuclear explosion technologies, the dimensions of the respective projects and the resources thus affected, and the economic significance and implications of respective projects, the world legal community may have a new and challenging field to work, in that national economic interests may require new definitions as an imperative prerequisite for assessing respective damages evolving from either execution or operation of a project involving the peaceful use of nuclear explosives.
59   "Statement on the Civilian Applications of Nuclear Explosives (Plowshare) Prograrn", mimeographed USAEC, Washington 1967, pp. 819;  Gerald W. JOHNSON, in  "Engineering with Nuclear Explosives", TID-7695, USAEC, 1964, p. 5.
 
 

THE PROPOSED NONPROLIFERATION TREATY    65

in the development of nuclear explosives entailing a very low fission-fusion material ratio. Progress in this and other directions reportedly is continuing and is hoped to lead to the "development of an explosive with essentially no fissionable material" 60 which, incidently, would also be less costly than past and present devices. Nevertheless, no indication is available as to when the so-called "clean" nuclear explosive will become available for civilian applications.

(64)     Even with the above cited substantial progress in device design, application of presently available nuclear explosives for surface excavations still entails the release of radioactive debris to the atmosphere where it may be carried beyond the territorial limits of the country directly involved. The respective amounts entailed in properly executed peaceful nuclear explosive projects might in most cases be too small to even come close to posing a hazard to human, animal or plant life. Nevertheless, according to publicly available respective information, any nuclear excavation project involving the standard (optimum burial) cratering technology would still constitute a clear violation of the 1963 Nuclear Test Ban Treaty 61. For this reason, any treaty or treaty provision ostensibly assuring the availability of the nuclear excavation technology would be valid only to the extent that "peaceful applications of nuclear explosives ... are permissable under test-ban treaty limitations"62. And that would, at least for the time being, positively rule out any such applications as canal, harbour and surface storage basin excavations and dam constructions. The only conceivable alternative would consist of an amendment to the 1963 Treaty which would exempt peaceful applications of nuclear explosives. As all expected signatory nuclear weapon countries are parties to the 1963 Treaty, and each one of them may exercise its veto power over any amendment thus proposed, it again would depend essentially on the intention of each of the signatory nuclear weapon countries whether and when a certain part or the full range of benefits potentially accruing from the execution of projects involving the peaceful use of nuclear explosives would eventually be available to signatory non-nuclear weapon countries.
_________
60   Isthmian Canal Plans - 1960, Annex V11 - Nuclear Construction of a Sea Level Canal and Cost of Nuclear Excavation, USAEC, Panama Canal Company, Washington 1960 (de-restricted 1963), appendix "Advantages Obtainable with Further Development of Nuclear Explosives"
61    Perhaps the recent nuclear test explosion which reportedly involved a predictable release of radioactive debris to the atmosphere signals a breakthrough in that the respective provision of the Moscow Treaty no longer is interpreted to the effect that both military and non-military nuclear explosions entailing any amount of radioactive debris to be released to the atmosphere are prohibited. The respective press dispatch - published in the International Herald Tribune of January 26, 1968 - contained nevertheless no positive indication to that effect.
62    ENDC/PV. 280, p. 15.
 
 

66     H. A. KELLER, H. BOLLIGER, P. B. KALFF

(65)     In summary, the available information tends to support the view that Article V would not afford effective legal protection of the signatory non-nuclear weapon countries' possible interests for executing, on their own territories, projects involving the peaceful application of nuclear explosives. This apparent state-of-affairs ill-supports the contention: "This article (V) should ... remove any concern by non-nuclear Parties that they might be dependent merely on the good will of the nuclear Powers for the performance of nuclear explosive services for peaceful purposes" 63.
 

2.   ECONOMIC AVAILABILITY OF PEACEFUL NUCLEAR EXPLOSIVE SERVICES

(66)     According to Article V, the signatory nuclear weapon countries would be committed to charge signatory non-nuclear weapon countries as little as possible for "nuclear explosives used" in the process of producing "benefits from any peaceful applications of nuclear explosions." For the purpose of the argument, it is assumed that these benefits include peaceful nuclear explosive services applied on territories of signatory non-nuclear weapon countries. On the background of past announcements by the United States Atomic Energy Commission 64 regarding the costs of civilian nuclear explosives 65, this commitment would not seem to provide
_________
63    ENDC/PV. 357, § 62.
64    The Soviet Union and other nuclear weapon countries, on various occasions, have indicated an active interest in the development of peaceful nuclear explosives technologies. Whether and to what degree these countries presently are engaged in respective research programs on their own cannot be determined conclusively with the information available. The idea to use nuclear explosives for peaceful purposes was introduced formally in 1949 at a United Nations session by the Soviet Delegate, Mr. Andrei Vishinsky, with the vision of the nuclear excavation technology bringing about the time when man will be able to say "we are razing mountains; we are irrigating deserts; we are cutting through the jungle and the tundra; we are spreading life, happiness, prosperity, and welfare in areas wherein the human footsteps have not been seen for a thousand years" quoted by Gerald W. JOHNSON in "Nuclear Civil Engineering", Kruger ed., Stanford University, Stanford 1966, p. 19). The growing interest in the subject of peaceful applications of nuclear explosives hopefully may encourage both such development programs and the making available of their results to the world scientific community inasmuch as dependence on one principle source of information, material and services would be less than satisfactory for partially self-evident reasons. Nevertheless, acknowledgement is due to the United States Authorities which over the past ten years alone have supplied substantial information on their PLOWSHARE PROGRAM, affording both American and non-American scientists to become aquainted with the characteristics, possibilities and limitations of the peaceful nuclear excavation technology as a new tool of resources development and management.
65    W. J. FRANK "Characteristics of Nuclear Explosives", in Engineering with Nuclear Explosives, TID-7695, Livermore 1964, p. 9 Costs per nuclear explosive unit, without auxiliary services, are thus given to be $ 350 000 for a 10KT unit, and $ 600 000 for a 2MT unit (representing an energy equivalent of 2 million tons of TNT).
 
 

THE PROPOSED NONPROLIFERATION TREATY    67

for equitable charges, that is charges fixed individually in consideration of all relevant factors, including in particular the involved country's economic strength. The development and adoption of a respective costing procedure would seem to be indicated in light of the following considerations:

a) The number of nuclear explosives - being the prime cost parameter in nuclear excavation projects - may be considerable in many cases of potential significance 66;

b) Nuclear excavation projects may not produce benefits quickly and entail substantial long-term investments which may be difficult to fund without particular incentives 67;

c) The largest number of economically significant nuclear excavation projects may ultimately be executed in those areas presently plagued with development opportunities frustrated mainly because of financial problems 68;and

d) The economic effects of a nuclear excavation project may vary substantially with circumstances.

(67)     Examples involving the equitable shares principle are any nation's tax system, the United Nations' and the UN Specialized
________
66    Conceivable or presently planned nuclear excavation projects include:
Project Name     Excavation Lenght     Number of Explosives     Total yield (Megatons)

New Panama Canal           69-77 km                 220-300                             170-300
(Sasardi-Morti Route)
New Suez Canal                    145 km                 460-570                                 20-32
Exp. Aswan High Dam   268-322 km                 710-1348                         982-1795
(Gabgaba Canal)
Hwang-Ho Off-River              160 km                  ~  500                                 ~ 1000
Over-Year Storage*
Yangtze Kiang                     160 km                 ~  600                                   ~ 600
 River Diversion*
* estimates based on inadequate topographical data.

67     Projects designed to develop natural resources, such as water and mineral resources, conceivably will be the major field affording economic application of the nuclear excavation technology. This particular category of projects, nevertheless, does not embrace those projects which afford to harvest the benefits of resources development. In the sense that the former may require execution and operation of secondary projects in order to bear fruits, nuclear excavation projects serving to develop natural resources fall into the category of preinvestment projects entailing perhaps substantial capital investments of a long-term character.
68     The caracteristics of nuclear excavations presently rule out this technology's application in densely populated areas primarily for reasons of possible building damages resulting from the explosion's ground shock and/or aerial blast effects. Absence of this inhibitation is almost characteristic of large areas of developing countries where the available natural resources may still be in a virgin state and avail themselves for the most efficient and economic development science and technology afford.
 
 

68      H. A. KELLER,  H. BOLLIGER, P. B. KALFF

Agencies' cost distribution key 69, and the HELSINKI RULES on the Uses of the Waters of International Rivers 70.

(68)     Even though the actual costs of nuclear explosives already have made nuclear excavations competitive with conventional excavations in numerous cases involving suitably dimensioned earth-movements, many a conceivably promising nuclear excavation project would involve hundreds and perhaps thousands of nuclear explosives thus positively exceeding the resources available to the country or countries involved. Thus, the proposed commitment in numerous cases would not assure the essential economic availability of peaceful nuclear explosive services. Economically decisive benefits accruing from operation of nuclear excavation projects might thus be foreclosed until and unless the respective services will be made available in due consideration of all relevant factors.
__________
69     "Report of the Committee on Contributions", A/6710, Suppl. No. 10, United Nations, New York 1967; Criteria thus considered for determining each country's cost share include: the net national product, the ceiling principle, the per capita ceiling principle, the comparative income per head of population, and the ability of member countries to secure foreign currency. ibid., pp. 2/3.
70     Adopted by the International Law Association at the 52nd Conference held in Helsinki on 20th August, 1961 published in: Report of the Fifty-Second Conference, ILA, London 1967; using the "Helsinki Rules' reasonable and equitable shares" provisions as a working basis, nuclear explosive services might be made available on the following or similar terms:

§ 1     Each State Party to this Treaty, within the framework of generally adopted principles of good neighbourhood and international law, is entitled to benefit individually or in cooperation with other States from the peaceful application of nuclear explosives, including applications involving its or their territories or otherwise affecting its or their regional and/or national economic interests.
§ 2     Each State Party to this Treaty is entitled to request and obtain in duo course nuclear explosive services from appropriate international institutions, the respective charges being calculated individually and constituting a reasonable and equitable share of the total effective costs of these services.
§ 3     What is a reasonable and equitable share of the total effective costs of nuclear explosive services thus provided within the meaning of Paragraph 2 is to be determined in the light of all relevant factors in each particular case. Relevant factors which are to be considered include, but are not limited to:
    a) actual and foreseeable demographic conditions in light of peaceful nuclear explosion and other projects eventually affecting these conditions substantially;
    b) actual and foreseeable hydrological, topographical, pedological, meteorological, and other natural conditions in light of peacefur nuclear explosions and other projects eventually affecting these conditions substantially;
    c) actual and foreseeable, absolute and relative strength of the potentially affected States' national economy in light of peaceful nuclear explosion and other projects eventually affecting this strength substantially;
    d) the potentially affected States' resources development objectives;
    e) the availability and comparative costs of practicable alternative means satisfying to a comparable degree the economic and social needs of each potentially affected Slate;
    f) the degree to which national resources development objectives of one or more potentially affected States may be pursued by way of peaceful nuclear explosion or other projects without causing substantial injury to a neighbouring or a third State;
    g) the practicability of identifying social opportunity costs, resp. benefits arising from the execution or non-execution of peaceful nuclear explosion and other projects potentially affecting the economic interests of two or more States;
    h) the practicability of appropriate compensations between two or more States whose economic interests are affected by either execution or operation of peaceful nuclear explosion projects, as a means of adjusting conflicts among involved States;
    i) money costs of the nuclear explosive and related services involved in the preparation and execution of a given project involving the peaceful use of one or more nuclear explosives;
    k) human and natural resources costs involved in the preparation and execution of a given project involving the peaceful use of one or more nuclear explosives;
    l) opportunity costs and benefits entailed in the execution of a given project involving the peaceful use of one or more nuclear explosives for the country or countries involved, for third countries requiring such services, and for the executing agencies in light of the priority claimed for tho project in question; and
    m) the projected long-term economic benefits and drawbacks associated with the proposed project involving the peaceful use of one or more nuclear explosives.
    The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable share of the total effective costs of nuclear explosive services thus provided, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.


THE PROPOSED NONPROLIFERATION TREATY     69

3.   UNDUE INTERFERENCE BY WAY OF PEACEFUL NUCLEAR EXPLOSIVE SERVICES

(69)     For the purpose of this argument, it is assumed that the commitment to provide access to potential benefits from peaceful applications of nuclear explosions would effectively cover benefits arising from peaceful applications of nuclear explosives on the territory of signatory non-nuclear weapon countries so requesting. Could the subsequent obligation of a signatory nuclear weapon country to execute in due course a given nuclear excavation project be used as an instrument by any involved country to the political or economic detriment of either a partner or a third country? In the case of an international institution channeling the respective material and services: most probably not. For the mediary international institution may be designed to forestall such incidents. In the case of a bilateral respective agreement between a nuclear weapon country and a non-nuclear weapon country: perhaps 71. Because of the nuclear excavation technology's characteristics, and the dimensions and economic and political significance of some of its applications, this possibility cannot be ruled out. For neighbouring countries competing with each other for the execution on their territory of such projects as sea-level canals,
________
71    On the basis of Realpolitik, with the national economic and political self-interests consequently serving as a government's prime decision parameter, it would not seem to be inconceivable for the government of any signatory nuclear weapon country to decide it to be in its country's best interest to apply the nuclear excavation technology only in such cases serving exclusively, in particular, or also its country's interests, and to seek to veto - with whatever instruments available - the execution of projects involving the use of nuclear explosives for peaceful purposes by other nuclear weapon countries, if such projects per se, or their operation, are viewed as running counter its country's or its allies' economic, political or other interests. Such conceivable situations not only would cast doubt on the wisdom and practicability of bilateral respective arrangements, but also would strongly indicate the necessity of a nationally independent, international pool of nuclear explosives and know-how which alone would have the authority to execute anywhere on the territory of any signatory country properly investigated and approved projects involving the use of nuclear explosives for peaceful purposes.  Until such an institution is created and operational, and until national authorities cease to exercise any degree of discretional power over the application of nuclear explosives, the question of whether Article V would afford real independence from the respective goodwill of one or more signatory nuclear weapon countries, may remain essentially one of economic progress versus internationally sanctionned economic discriminations and development brakes; ENDC/PV. 364, §§ 8, 10, 13-15.
 
 

70     H. A. KELLER, H. BOLLIGER, P. B. KALFF

or irrigation systems, bilateral respective agreements clearly would place the executing nuclear weapon country in a position to decide on its own, and possibly on a basis not entirely free of subjective judgements, which solution is to be adopted and executed. Such a position could afford favouritism and untold opportunities of direct and indirect interference in the internal affairs of respectively dependent, yet formally sovereign nations.

(70)     On the other hand, the obligation to cooperate in providing nuclear explosives and related services for peaceful purposes on a bilateral basis might give signatory non-nuclear weapon countries a politically potent instrument to force a signatory nuclear weapon country to provide economically essential and significant services even though the supply of such services might be inconsistent or even detrimental to the policies and political and economic objectives of the latter vis-à-vis the former.

(71)     From this it would seem that the possibility of obtaining nuclear explosive services on the basis of a respective bilateral agreement between a nuclear weapon country and a non-nuclear weapon country entails perhaps substantial political drawbacks for either party. Conceivably, situations such as the ones envisaged above could be ruled out only if the peaceful nuclear explosive services would be made available for all signatory countries exclusively by way of appropriate international institutions affording proper protection of all potentially affected countries' legitimate interests.
 

4.   CREATION OF APPROPRIATE INTERNATIONAL INSTITUTIONS
PROVIDING PEACEFUL NUCLEAR EXPLOSIVE SERVICES

(72)     Article V provides for interested signatory non-nuclear weapon countries to "obtain any such benefits ... through an appropriate international body with adequate representation of non-nuclear-weapon States". For the purpose of this argument, it is assumed that those benefits would include peaceful nuclear explosive services to be applied on territories of signatory non-nuclear weapon countries.

(73)     In preceding paragraphs it has been suggested that projects involving the peaceful use of nuclear explosives in some cases may substantially affect the economic interests of countries not directly involved. The generally adopted principles of good neighbourhood and international law have been referred to and the idea advanced that all countries whose economic interests might thus be affected substantially should be consulted and agreement with them should be reached on eventual compensations for economic damages or benefits evolving from execution or operation of such projects. However complicated and complicating, such procedures would seem to be indicated particularly in such cases as water resources integrations beyond natural and artificial borders, and sea-level canal excavations.
 
 

THE PROPOSED NONPROLIFERATION TREATY     71

(74)     Of course, Article V would not exclude either the formulation of respectively suitable and generally acceptable procedures, or the creation of respectively appropriate and effective international machinery. Indeed, this Article explicitly would provide for "adequate representation of non-nuclear-weapon States". Would this also mearn that the respectively decisive formulation of procedures, and creation of such international institutions would effectively be carried out with "adequate representation of non-nuclear weapon States"? The possibility cannot be excluded. Yet non-nuclear weapon countries conceivably would be in a better position to make sure that this essential condition be met while they still have the option of alternative ways for obtaining peaceful nuclear explosive services. Indeed, the very possibility of bilateral respective agreements would seem to considerably weaken the non-nuclear weapon countries' capacity to safeguard their conceivably substantial interests. In effect, the option of bilateral respective agreements might hinder, rather than promote the formulation of generally acceptable procedures and the creation of suitable international instruments providing peaceful nuclear explosive services.
 

(75) S u m m a r y

1.     The legal availability of peaceful nuclear explosive services would at best be debatable due to the failure of

    a) Article I to exempt nuclear explosive devices for peaceful purposes,

    b) Article V to specify peaceful nuclear explosive services and their possible application on the territory of signatory non-nuclear weapon countries as being part of the "potential benefits from any peaceful applications of nuclear explosions", and of

    c) the signatory nuclear weapon countries of the Nuclear Test Ban Treaty to formally interprete that agreement to the effect that peaceful applications of nuclear explosives are not thereby prohibited or restricted.

2.     The economic availability of peaceful nuclear explosive services would be questionable in some cases due to the failure of Article V to provide for terms which would take all relevant economic factors into consideration.

3.     The possibility to eventually acquire nucleare explosive services on a bilateral basis, as provided for by Article V, might afford undue interference in the internal and/or external affairs of directly involved or third countries due to the failure of Article V to provide for measures designed to prevent such interference, and to take into consideration all legitimate interests thus affected.

4.     The formulation of suitable and generally acceptable procedures for, and the creation of appropriate and effective international instruments providing peaceful nuclear explosive services would not be assured by Article V. The conceivably substantial respective interests of non-nuclear weapon countries might thus require protection by respective negotiations and eventual conclusions of respective international agreements prior to the conclusion of the proposed Nonproliferation Treaty.
 

72     H. A. KELLER, H. BOLLIGER, P. B. KALFF

ARTICLE  VI

Each of the Parties to this Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

ARTICLE  VII

Nothing in this Treaty affects the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.

ARTICLE  VIII

1.     Any Party to this Treaty may propose amendments to this Treaty. The text of any proposed amendment shall be submitted to the Depositary Governments which shall circulate it to all Parties to the Treaty. Thereupon, if requested to do so by one-third or more of the Parties to the Treaty, the Depositary Governments shall convene a conference, to which they shall invite all the Parties to the Treaty, to consider such an amendment.

2.     Any amendment to this Treaty must be approved by a majority of the votes of all the Parties to the Treaty, including the votes of all nuclear-weapon States Party to this Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. The amendment shall enter into force for each Party that deposits its instrument of ratification of the amendment upon the deposit of instruments of ratification by a majority of all the Parties, including the instruments of ratification of all nuclear-weapon States Party to this Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. Thereafter, if shall enter into force for any other Party upon the deposit of its instruments of ratification of the amendment.

3.     Five years after the entry into force of this Treaty, a conference of Parties to the Treaty shall be held in Geneva, Switzerland, in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realized. At intervals of five years thereafter, a majority of the Parties to the Treaty may obtain, by submitting a proposal to this effect to the Depositary Governments, the convening of further conferences with the same objective of reviewing the operation of the Treaty.

ARTICLE  IX

1.     This Treaty shall be open to all States for signature. Any State which does not sign the Treaty before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time.
2.     This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of which are hereby designated the Depositary Governments.
3.     This Treaty shall enter into force after its ratification by all nuclear weapon States signatory to this Treaty, and 40 other States signatory to this Treaty and the deposit of their instruments of ratification. For the purposes of this Treaty, a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.
4.     For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession.
5.     The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or of accession, the date of the entry into force of this Treaty, and the date of receipt of any requests for convening a conference or other notices.
6.     This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.

ARTICLE X

1.     Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. If shall give notice of such withrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.
2.     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 shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties of the Treaty.

ARTICLE XI

This Treaty, the English, Russian, French, Spanish and Chinese texts of which are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Treaty shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.
In witness whereof the undersigned, duly authorized, have signed this Treaty.

Done in                         at                        this                        of

*                      *
 *

extract from:
Revue de Droit International, de Sciences Diplomatiques et Politiques
(The International Law Review - Sottile) No. 1, January-March 1968, p.26-73;
 see also: www.solami.com/NPT.htm ¦ .../NPT75.htm ¦ .../nuclearsources.htm

address of the authors: CORUM Research Group, POB 2580 - 1211 Geneva 2
www.solami.com/ac.htm - swissbit@solami.com