1975, julliet-septembre    N° 3    p. 201-240    Cinquante-deuxième année

REVUE  DE  DROIT  INTERNATIONAL
DE SCIENCES DIPLOMATIQUES ET POLITIQUES
(THE  INTERNATIONAL  LAW  REVIEW  -  Sottile)

Fondée par le Dr juris Antoine Sottile   -   Publiée par C.-L.Heinbach
Case postale 130 - 1211 GENEVE 12 - Suisse


 
 

THE NONPROLIFERATION TREATY
IN LIGHT OF NUCLEAR ENERGY DEVELOPMENTS

by  H. Anton KELLER, Paul BÄHR and Peter B. KALFF
(courtesy by: Good Offices Group of European Lawmakers, cp 2580, 1211 Geneva 2
research contributed by: EDA & Federal Archives, Bern; ETH Zurich; Irina Gerassimova, UN Library Geneva
url: www.solami.com/NPT75.htm  (200 KB) ¦ word format: .../NPT75.doc  (1.3 MB) ¦ index: .../NPT.htm
../nuclearsources.htm ¦ ../britishgas.htm ¦ ../a2.htm ¦ ../jaffa.htm ¦ ../iconoc.htm
tks 4 notifying errors, comments or suggestions to: swissbit@solami.com ¦ +4122-7400362)

INDEX    abstract ¦ introduction ¦ security considerations ¦ NPT obligations ¦ NPT obligations applying to nuclear-weapon states (NWS) only ¦ NPT obligations applying to non-nuclear-weapon states (NNWS) only ¦ NPT obligations applying to all parties to this treaty ¦ implications of NPT obligations ¦ non-peaceful uses of nuclear material by NPT-NNWS ¦ definitions ¦ avenues for preventing non-governmental diversions ¦ economic considerations ¦ nuclear macro-explosions ¦ Plowshare projects ¦ nuclear micro-explosions ¦ programs and adverse experiences with the IAEA and other ¦ development trends and possible consequences on other nuclear energy programs ¦ micro-explosions vs. conventional breeder reactor concepts ¦ input/output indices of integrated mirco-explosion breeder reactor system ¦ profile of EURODIF and URENCO programs ¦ NPT constraints on NNWS regarding micro-explosion system developments ¦ official positions on nuclear micro-explosion systems vs. NPT ¦ in defence of expanded safeguards measures ¦ conclusions
 

TO THE UNBORNS' HEALTH AND WEALTH,
        TO THE MILLIONS' UNIMPEDED SOCIAL AND ECONOMIC PROGRESS
        IN REAL SAFETY FROM NUCLEAR THREATS AND ANNIHILATION, AND
    TO THE WISDOM AND COURAGE OF THE DOZENS
    INFLUENCING THE COURSE OF EVENTS
    IN THE ABOVE DIRECTION – OR AWAY FROM IT.
                                                    H.A.K.

202   H.A. KELLER - P. BÄHR - P. B. KALFF

ABSTRACT

An analysis of the first five years of operation of the Nonproliferation Treaty (NPT) leads the authors to conclude that — q.e.e — the treaty has failed to prevent the spread of nuclear explosives capabilities and, due to its exclusive backward focus, is even providing incentives to explore the apparently feasible pure-fusion nuclear explosives road. Yet — and again q.e.e. — with regard to economic implications, the NPT has proven a nuisance and an unnecessary obstacle in many cases and, in some respects, poses a clear threat of growing dimensions. The vantage point for these conclusions is that of observers actively involved in nuclear micro- and macro-explosives development, respectively application planning.

The obligations undertaken by the parties to the Nonproliferation Treaty and their collateral, the IAEA NPT safeguards, are analysed with regard to their apparent and possible security, political and economic implications. The lack of measures verifying the fulfilment of some key undertakings and the possibility formally accorded NPT Non-Nuclear-Weapon States to import, produce, stock-pile and use — explicitly for non-peaceful purposes — any quantity even of bomb-grade fissionable material outside all IAEA or other international safeguards, is seen to cast serious doubts on the relevancy of these elaborate safeguards. Furthermore, the IAEA NPT safeguards' almost exclusive attention to governmental diversions is seen to cause a dangerous neglect of the possibly much more real dangers arising from eventual non-governmental diversions of nuclear material. A promising avenue to effectively cope with this latter problem is identified in the form of intergrated nuclear energy systems eventually entailing no transportation and storage of special fissionable material. Related development opportunities are outlined and concentrated research efforts in that direction are recommended.

Besides references to some unfortunate developments concerning the development and eventual availability of the peaceful nuclear macro-explosions technology, the authors present some preliminary economic data on the inertial confinement, or micro-explosion fusion reactor concept as possibly affected by the NPT, too. This novel reactor type avails itself for development of an extremely safe breeder system. With such a plant, conventional nuclear power plants of some three times its own installed power could be run symbiotically and totally independent of enrichment facilities. For such a 1000 MWe breeder is calculated to annually produce some 2000 kg U-233 or plutonium with an input of some 1000 kg lithium and deuterium each and some 2000 kg thorium or natural uranium.

These significant developments — and ecologically even more favorable offshots of it (e.g. boron-hydrogen reactors and Plowshare explosives) — are seen to be jeopardized by the NPT for reason of its unwitting failure to distinguish between nuclear macro- and micro-explosion systems and due to its focus on fissionable material. An authoritative interpretation promptly and totally exempting nuclear micro-explosion systems from the NPT is thus called for.

Some apparent structural, methodological and other deficiencies associated with present international efforts to promote and safeguard the peaceful development of nuclear energy are discussed and possible remedies proposed.
 
 

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS   203
 

I. INTRODUCTION

1 — The Nonproliferation Treaty (NPT), in order to prevent «diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices», entails specific obligations to that and similar effects for either Nuclear-Weapon States (NWS), Non-Nuclear-Weapon States (NNWS) or both. Fulfilment of these obligations is taken for granted and subject to no direct control in the case of NWS, whereas in the case of NPT-NNWS, adherance to their respective sovereign undertakings is subject to verification by way of «safeguards». The International Atomic Energy Agency in Vienna (IAEA) has been charged with, and has assumed the responsibility of verifying the fulfilment of some — but not all — of these NPT-NNWS obligations by way of safeguards agreements based in its Blue Book Model (INFCIRC/153). This gives rise to both security and economic questions of apparently growing significance. Moreover, the terms «nuclear weapons» and «other nuclear explosive devices» are nowhere defined in either the treaty itself, its historical elements or its supplementary documents.

2 — In particular, absence of a reference to scale — i.e. excluding nuclear micro-explosions — has become a source of growing anxiety in some industrial circles due to recent research results and experiments in the field of advanced peaceful nuclear energy developments and applications. Also, the not-so-academic question — entailing again both economic and security implications — of: «Does the NPT cover non-fission-induced fusion explosives?» has gained additional weight due to recent developments.

3 — The traditional tools of treaty interpretation by themselves are not seen to suffice to eventually permit the arrival of widely-accepted and reliable answers to what in essence appear to be political questions in the first place and which, therefore, might be addressed most effectively on the occasion of the forthcoming NPT Review Conference and on other suitable levels between the interested governments.

II. SECURITY CONSIDERATIONS
A. General

4 — Man being what he is, there can hardly be raised a serious objection to effective measures against diversion of significant quantities of nuclear material from safeguarded uses to the clandestine manufacture of explosive devices or for purposes unknown — or, for that matter, against effectively safeguarding the use

204   H.A. KELLER - P. BÄHR - P. B. KALFF

of, and nuclear material as such. Indeed, the growing role 1 of and development trends 2 in nuclear energy, as well as apparent trends in political interplays 3, seem to indicate the application of the most effective nuclear material safeguards, science and technology afford, on a world-wide, standardized basis properly reflecting development progresses in all related fields.

5 — The presently proposed IAEA safeguards 4 seem to constitute both a step in the above direction — and, hélas, a likely obstacle on that very road. The former, because of a) their impressive apparent acceptability to both industry and governments of NPT-NNWS and b) their built-in adaptability to some related developments. The latter, because of a) their minuscule chances — if not their outright failure — to eventually be applied to all nuclear activities — at least in NPT-NNWS — and to all peaceful nuclear activities in all NPT-NWS, b) their failure to provide for the verification of the fulfilment of every and all obligations undertaken by NPT states, c) their exclusive reliance on the control of fissionable material and related equipment, d) their reliance — apparently out of political necessity — on verification of each NNWS' or group of NNWS' individual and more or less effective nuclear safeguards measures and e) their sub-
_____________
    1     Spinard, B. I., «A Projection of Nuclear Power and its Associated Industry», in : Nuclear Proliferation Problems (Jasani, ed.), SIPRI, Almquist & Wiksell, Stockholm, 1974, p. 21-40.
    2     Ibidem; see also: OECD, «Energy Perspectives to 1985», Paris, 1975;
    Bülow, H., et al., «Entwicklungstendenzen der für die Energienachfrage Relevanten Strukturelemente von Wirtschaft und Gesellschaft», PROGNOS, Basel, 1975;
    Browa, H., et al., «Energiemodell Industrie», PROGNOS, Basel, 1972;
    Bogensberger, H., et al., «Die Bedeutung der Kernenergie für die Deckung des Weltenergiebedarfs», KFK-1995, Karlsruhe, 1974;
    Hill, J., «Future Trends in Nuclear Power Generation», Philos. Trans. R. Soc, Ser. A, May 1974, v. 276 (1261), p. 587-601;
    «World Nuclear Power: Status, Trends and Markets», NP-19776, Interdevelopment. Inc., Arlington, 1973;
    Grenon, M., «Ce monde affamé d'énergie», Laffont, Paris, 1973;
    «Laser Fusion Feasibility Project», University of Rochester, Rochester, 1974, p. 13.
    3     The present face of world politics — reflecting, of course, social, economic and political gradients and tensions within and between states — is poked with incidents of terrorism of various natures and degrees. With these gardients and tensions — key sources for aspirations to changes — still growing, national and international terrorism is likely to stay with us and become an ugly, everyday affair of increasing sophistication — like, e.g., the Vietnam war was, or rather still is. Sooner or later, it is likely to penetrate the diplomatic world, either as target or vehicle. Nuclear material, under such circumstances, is seen as an instrument
of unparalleled effectiveness and commensurate attractiveness for both governmental and non-governmental terrorism — the latter, conceivably, serving occasionally as camouflage for the former.
    4     IAEA, «The Structure and Content of Agreements Between the Agency and States Required in Connection, with die Treaty on the Non-Proliferation of Nuclear Weapons» (generally referred to as «Blue Book»), INFC1RC/153, Vienna 1971.

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     205 sequently built-in failure to provide coordinated, effective safeguards against non-governmental diversions of nuclear material on either a national and/or international level 5.

6 — Disturbing as the last point most certainly is — is likely to remain so, and may even prove disastrous before long —, another fact deserves serious attention for reason of its security and political implications. Reference is made here to the NPT's unbalanced approach to safeguards, whereby the simple signature of the NWS is taken as a guarantee that their respective commitments will be honored, while the signature of the NNWS must be complemented by safeguards measures intended to verify compliance with their obligations under the NPT 6.

7 — In our NPT analysis of 1968 7, we pointed out that in attempting to bar NNWS from the fission road to a nuclear weapon capability, the NPT inadvertently, yet inevitably would seem to give impetus to the pursuit of the only remaining road thus left open to that end, namely the pure-fusion road. In 1969 8, we identified a likely vehicle for use on that road, namely the fusion device triggered by an argon bomb-pumped dye laser. Since then, various developments observed seem to have unhappily confirmed our earlier assessment. Moreover, the worldwide growth of the role assigned to nuclear energy and the correspondingly growing availability of weapon-quality fissile material is seen to facilitate what is obliquely referred to as «non-governmental diversion» — a proliferation road which the NPT's authors have left for the states to care about.
____________
    5     For a discussion of the feasibility to produce crude nuclear bombs and radiation weapons (reflecting related USAEC studies), see: McPhee, J., «The Curve of Binding Energy», Farrar, Straus & Giroux, New York, 1974; Taylor, T., et al, «Nuclear Theft: Risks and Safeguards», Ballinger, Cambridge, Mass., 1974.
        For an excellent discussion of the background of eventual non-governmental diversions of special fissionable material, see: Willrich, M., «Nongovernmental Nuclear Weapon Proliferation», in: Nuclear Proliferation Problems, op. cit., p.168-186.
    6 ENDC/PV. 362, § 17; see also: Imai, R., «The Non-Proliferation Treaty: The Japanese Attitude Three Years After Signing», in: Nuclear Proliferation Problems, op. cit., p. 247, 252.
    7     Keller, H. A., et al., «On the Economic Implications of the Proposed Nonproliferation Treaty», International Law Review (Sottile), N° 1, Geneva 1968 (...[www.solami.com/NPT68.htm ¦ .../NPT.htm]); see also: Young, E., «The Control of Proliferation: The 1968 Treaty in Hindsight and Forecast», ISS Adelphi Papers Nr. 56, London, 1969; Young, E., «A Farewell to Arms Control?», Penguin Books ISBN 014 02.1593 X, London, 1972; Boerner, B., «Rechtsfolgen des Atomsperrvertrages für die Bundesrepublik Deutschland», Veröffentlichungen des Instituts für Energierecht, Universität Köln, Bd. 22, Köln, 1968;  Jasani, B., (ed.), «Nuclear Proliferation Problems, SIPRI, Stockholm, 1974, passim.
    8     «Non-Fission-Induced Nuclear Fusions - Recent Developments and Perspectives», Colloquium Report, Doublekay-6970, Basel, 1969.

206    H.A. KELLER - P. BÄHR - P. B. KALFF

8 — To what extent, under such circumstances, the NPT — and its IAEA safeguards — can reasonably be expected to prevent or slow the proliferation of governmental fission explosives capabilities beyond the effectiveness of the already operational factors will be discussed below on the background of the present IAEA NPT safeguards model, safeguards measures indicated by political reality and corresponding reactor development indications and opportunities. Indeed, the recent Indian example does not bode well to nuclear security policies resting on the present NPT and may indeed turn out to be an unexpectedly constructive and decisive element in the eventual development and implementation of a more effective and balanced approach to an increasingly pressing world problem.

B.  NPT Obligations

9 — The NPT's perhaps inevitably assymetric design implies an assumption that the NPT-NWS's related commitments — in the view of NPT-NWS — are relatively marginal, or that, for them, circumstances are and will remain such, that non-compliance with these obligations would necessarily be against their own best interests and thus out of the question or sufficiently improbable. And while the latter view may very well indeed be correct — without, however, being necessarily recognized as such and reflected in the related actions or inactions eventually taken by the responsible authorities —, it would be rather difficult to see how the former proposition could reasonably be sustained by and after detailed analysis of these numerous commitments. It may thus be well to take a closer look at these NPT obligations.

1. NPT OBLIGATIONS APPLYING TO NUCLEAR-WEAPON STATES ONLY

10 — The obligations falling under this heading are contained in NPT

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». THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     207
2. NPT OBLIGATIONS APPLYING TO NON-NUCLEAR-WEAPON STATES ONLY

11 — The obligations falling under this heading are contained in NPT

Article II:
«Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor 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 nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices».

Article III.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 its jurisdiction, or carried out under its control anywhere».

Article III.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 or accession after the 180-days period, negotiation of such agreements shall commence not later than the date of such deposit. Such agreements shall enter into force not later than eighteen months after the date of initiation of negotiations».
208 H. A. KELLER – P. BÄHR - P. B. KALFF

3.   NPT OBLIGATIONS APPLYING TO ALL PARTIES TO THIS TREATY

12 — The obligations falling under this heading are devided into those issuing from the NPT preamble — with no legally binding character — and into those — with legally binding character — issuing from NP

Article III.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».

Article IV.1:
confirms the «inalienable right of all the Parties to the Treaty» — and thus, by implication, their corresponding obligation to abstain from any interference in, and perhaps even to facilitate the execution of this right by such a state — «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».

Article IV.2:
«All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and 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 development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world».

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     209

Article V:
«Each Party to the Treaty undertakes to take appropriate measures to ensure that, in accordance with this Treaty, under appropriate international observation and through appropriate international procedures, potential benefits from any peaceful applications of nuclear explosions will be made available to non-nuclear-weapon States Party to the 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. Non-nuclear-weapon States Party to the Treaty shall be able to obtain such benefits pursuant to a special international agreement or agreements, through an appropriate international body with adequate representation of non-nuclear-weapon States. Negotiations on this subject shall commence as soon as possible after the Treaty enters into force. Non-nuclear-weapon States Party to the Treaty so desiring may also obtain such benefits pursuant to bilateral agreements».

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».

C. Implications of NPT Obligations

13 — Good or bad, for better or for worse, the NPT has become a fact of life and indeed of singular importance in international relations. The security and economic implications of inadequate or direct non-compliance by NPT-NWS with their obligations thus undertaken have acquired a commensurate importance the more so, as some of the security and economic benefits entailed in the NPT for NNWS can, under this treaty, no longer be developed by NNWS themselves, but must be sought from the NWS 9. An expansion of the IAEA NPT safeguards to the effect
_____________
    9     These include:
        1. Deterrence against governmental nuclear blackmail, and actual nuclear attacks. See die related UN Security Council Resolution S/Res/255.
        2. Provision of nuclear explosion services for peaceful ends. See: §§ 28-37.

210    H.A. KELLER - P. BÄHR - P. B. KALFF

of actively monitoring the adherence of all parties to the obligations undertaken by them under this treaty would thus seem highly desirable 10.

14 — Whether such an expansion is now or at all politically feasible is, of course, an all-together different ball game. Indeed, the IAEA NPT safeguards model does not provide for verification of compliance with any obligations undertaken by NPT-NNWS, other than those defined in Art. III.l of the NPT, thus leaving essentially unchecked those entailed in Art. III.2, as well as others 11. Granted, technical and/or financial considerations may
_____________
    10 A further set of arguments in favor of strengthening the IAEA NPT safeguards — leaving aside the not-so-convincing-ones of US Secretary of State Henry Kissinger, made last fall — is offered by: Prawitz, J., «Arguments for Extended NPT Safeguards», in Nuclear Proliferation Problems, op. cit., p. 158-167.
    Of course, the NPT’s all too-evident failure to prevent the vertical proliferation of nuclear weapons, as well as the apparent lack of real progress in nuclear disarmament — as provided for in Art. VI — would not by themselves speak against this treaty or its provisions. For it could not realistically be expected to significantly alter the political climate between the NPT-NWS — a climate which has not been, and is not likely to become conducive to that effect if nuclear lambs essentially contend themselves with the unparalleled abdication of their right to become nuclear tigers and leave the rest to the merci of those nuclear tigers which have pressed for this abdication. Accordingly, it is doubtful that real progress in the desired direction of nuclear disarmament will, eventually, issue from any conceivable changes of, additions to, or supplementary instruments of the present NPT which might be tabled at the forthcoming NPT Review Conference, or later. And as conditions do not seem to be ripe yet for the dialectic process to take place fully by way of the previously proposed «third forces scenario» — providing for the pooling of respective resources by NNWS in particular — appreciable effects in the above direction are conceivable only if the obligations entailed in Art. VI — applying to both NWS and NNWS — will finally be taken seriously — at least by the NNWS themselves — and will be developed by them into a system of genuine leverage against the NPT-NWS's respective apparent complacency and indifference (see also: §§ 67-69). Various views of States in the above direction are compiled in: GOV/COM. 22/6, p. 18-21.
    11    The IAEA Safeguards Conference of 1970 was provided with a IAEA working paper (GOV/COM. 22.3, § 12) wherein the following reasoning was developed:

«The agreement to be concluded by 'each non-nuclear-weapon State Party to the Treaty’ is that described in Article III.l of the Treaty. This requires only that safeguards be applied on nuclear material with a view to preventing diversion while the material is in a special nuclear activity ‘within the territory of such State, under its jurisdiction, or carried out under its control anywhere’. It is not required, therefore, that the agreements referred to should cover the obligations set forth in Article III.2 of NPT which relate to materials that will leave the State. It is to be noted, moreover, that the obligations contained in Aurticle III.2 fall equally upon nuclear- and non-nuclear-weapon States Party to the Treaty and are related to equipment and to other special materials as well as to nuclear material».
    Furthermore, in its comment on p. 13, the IAEA stated: «Under NPT the State has the obligation to ensure that exports of nuclear material would be made in accordance with Article III.2 but compliance with this obligation would not be verified by the Agency under the present Agreement». This has given rise to a number of questions first raised by the authors in 1970 (Doublekay-7001, p. 9-11):
(Continuation on following page.)
THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     211

also have indicated this solution without apparent loss of effectiveness. However, the authors' present concern is neither the technically attainable vs. the actually attained level of perfection of the safeguards system, its financial and/or political acceptability, nor, for that matter, its effectiveness in attaining the stated objective of IAEA NPT safeguards 12. For these perhaps highly efficient, economic instruments — made and implemented by renowned experts and highly motivated and competent international public servants — serve an objective the relevancy of which may no longer be beyond doubt — if indeed it ever was.

D. Non-Peaceful Uses of Nuclear Material by NPT-NNWS

15 — With the IAEA NPT safeguards systems, the question arises anew: Why bother at all with safeguards exclusively directed against governmental diversions? For, under the NPT, any NNWS is eligible to receive any quantity even of bomb-grade nuclear material from any willing supplier, is permitted to stockpile this material and — all without control, under the ominous «non-peaceful» exemption clause of Art. III.2 — may even be permitted to produce nuclear explosive parts, or
___________
(Continuation of preceding page.)

    1.    Does this mean that the exporting State will have the right — or even the obligation — to verify compliance of the receiver State with some or all of the applicable obligations entailed in the NPT?
    2.    What consequences does this entail for  a) the exporting firm, b) the exporting State, c) the importing State, d) the importing firm, e) third States having an interest that these obligations are fulfilled and their fulfilment be verified to their satisfaction?
    3.    What might happen, if the exporting State — for whatever reason — refuses to take the responsibility for «verifying the fulfilment» of some or all of the NPT obligations undertaken by an importing NNWS?
    4.    How can an exporting NPT State discharge its obligations under Article III.2, if it is requested by — and is prepared to supply material and/or equipment falling under this Article to — a) a NNWS, b) a NPT-NNWS?
    5.    Does the NPT provide the right to signatory States interested in reliable verification of the fulfilment of the obligations undertaken by a NPT-NNWS, in the partial or total absence of such IAEA verifications, to intervene in the affairs of NPT-NNWS?
    6.    Can and should the IAEA's role in implementing the NPT safeguards be curtailed by way of interpretation alone, e.g. without parallel amendments of the NPT?
    Some related views of States are compiled in: GOV/COM. 22/6, p. 31. See also: GOV/COM. 22/27; GOV/COM. 22/63.
    12     «The objective of safeguards is the timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown, and deterrence of such diversion by the risk of early detection.» (INFCIRC/153, § 28). See also: GOV/COM. 22/2, 13, § 36.

212     H.A. KELLER – P. BÄHR - P. B. KALFF

at least non-explosive radiation weapons 13. The reason for this astonishing fact is a simple reservation in Art. III.2 of the NPT, providing that the prohibition to supply NNWS nuclear material and equipment outside the required safeguards applies only to nuclear material and equipment intended for peaceful purposes!

16 — The Swiss Government considers the NPT to cover non-fission-induced nuclear weapons 14. By the same token, the United States Government has formally stated:

«The treaty deals only with what is prohibited, not with what is permitted»15.

«The NPT prohibits ... transferring complete nuclear weapons and other nuclear explosive devices to any recipient ...» 16.

17 - When the US and the USSR delegations to the Eighteen Nation Disarmament Committee (ENDC, now CCD) in Geneva jointly introduced their first draft of the NPT control Article III on January 18, 1968 17, the Rumanian 18, the Swedish 19 and the
_____________
    13     A detailed analysis of why this may be so is given in: Keller, H.A. et al, «On the Economic ...», op. cit., §§ 10-18, 29-36; see also: Boerner, B., «Rechtsfolgen des Atomsperrvertrages für die Bundesrepublik Deutschland», Veröffentlichungen des Instituts für Energierecht, Universität Köln, Bd. 22, Köln, 1968. Boerner seems to agree with the authors that such an interpretation on «nuclear explosive parts» — though violating the treaty's spirit — finds some support in the background and wording of the NPT (p. 19). However, Boerner seems to disagree entirely on the question of «control-exempt NPT NNWS nuclear material acquisition facilities for non-peaceful purposes» (p. 33). Yet, this view of the authors seems to be standard policy of the IAEA by now, and is shared widely (see: IAEA GOV/COM. 22.3, p. 13-15; INFCIRC/153, p. 5).
    It is not evident why — and at least questionable that — the NPT should afford an exemption from the IAEA NPT safeguards only for such nuclear material and equipment declared to be for non-explosive military purposes. For NPT Articles I and II provide no certain coverage of «parts» of nuclear weapons and other nuclear explosive devices, the less so as plutonium, U-233 and U-235 can — and under a security point of view, certainly should — be considered to constitute such «parts». Yet, the IAEA, the Swiss delegate then, and most commentators, for readily understandable reasons, have from the beginning tried in this way to somewhat narrow this mile-wide loop-hole. Such commendable efforts — in order to eventually succeed — would seem to require and deserve a sounder basis than that provided by the present NPT.
    14     Answer by the Swiss Federal Council on Foreign Affairs, Pierre Graber, to parliamentary question by Ständerat Jauslin of 12/18/69, as given in the Ständerat on 3/18/70.
    15     US Secretary of State, Dean Rusk, in: Treaty on the Nonproliferation of Nuclear Weapons, Senate Executive Report N° 91-1, Washington 3/6/69, p. 3.
    16     Memorandum furnished by Atomic Energy Commission to Committee «Relationship of Non-Proliferation Treaty to Atomic Energy Act Provision regarding Military Cooperation with Allies», reproduced in: Military Implications of the Treaty on the Non-Proliferation of Nuclear Weapons, Hearings before the Committee on Armed Services, US Senate, Washington, 2/27/69,p. 141.
    17     ENDC/192, Rev. 1; ENDC/193, Rev. 1.
    18     ENDC/PV. 362, §§ 11, 13-15.
    19     ENDC/PV. 363, §§ 19-23. THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     213 Brazilian 20 delegations came fairly close to discovering and publicly discussing this unexpected loop-hole in their first comments in early February. And when, thereupon, the authors orally presented, the above conclusions as the result of their analysis of said draft Article III to these and other delegations and correspondents in February 1968, the reactions observed varied from amazement and total disbelief to guarded welcome of this apparently mile-wide opening. On March 13, we then had copies of our widely-quoted NPT analysis — containing the first public reference to this loop-hole — delivered to all delegations in Geneva and New York 2l. Still, to the authors' knowledge, this matter was not brought up formally before the NPT was adopted by the UN General Assembly. Indeed, even the IAEA Director General's note on «Work Done by Safeguards Consultants between October 1968 and August 1969» 22, still says:
    «In the course of their work, the consultants found it necessary to make a number of assumptions concerning the application of safeguards under the NPT as follows: (...)
    (c) The safeguards system will be applied under the NPT in most non-nuclear-weapon States, where all nuclear material will be subject to safeguards; ...».
18 — With the IAEA Safeguards Conference's basic working paper of May 1970 23, light finally penetrated the surface, and the Conference was invited to work out the conditions for «Non-application of safeguards to nuclear material to be used in non-peaceful activities». Reflecting an encouraging awareness, openmindedness and independance, the Swiss Delegation to the
_______________
    20     ENDC/PV. 363, § 43.
    21     Pravda, Tass and Radio Moscow (05.47 GMT 4/4/68, reproduced in: Summary of World Broadcasts, BBC, SU/2739/AI/1) felt obliged to spread a slanderous «critic» of our analysis, attributed to Nikolay Kurdyumov. In it, we were taken to task for our impudence to conclude — and to say so publicly — that the NPT would «not guarantee that the proliferation of nuclear weapons would really be halted as a result of the conclusion of the treaty». Probably overrating both our background and the impact of that study, Kurdyumov greeted us with «little political saboteurs» — an attitude, incidentally, which was reflected by Kremlin NPT experts, when, at the 1969 UN Non-Nuclear-Weapon States Conference in Geneva, they referred to our 1968 study in dismay as the «red poison in green covers», Somewhat more encouraging, our effort then drew some 50 favorable replies and comments from officials of so many foreign ministries and disarmament delegations.
    22     GOV/INF/212.
    23     IAEA, «Safeguards Agreements in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons», Note by the Director General, GOV/COM. 22/3, Vienna, 1970. Related key statements first surfaced in the views communicated to the Agency (GOV/COM. 22/6, p. 32, 33). See also: footnote 13.

214     H.A. KELLER – P. BÄHR - P. B. KALFF

Safeguards Conference, on June 15, 1970, raised the following questions formally 24:

    «As regards the first aspect, he recalled, that one interpretation of NPT allowed for uncontrolled and unlimited supply of nuclear raw material and special fissionable material and also equipment to non-nuclear-weapon States party to the Treaty if the material and equipment were for non-explosive military purposes. It did not appear that NPT imposed other requirements.
    Who would verify and guarantee that that loop-hole would not be exploited to acquire secret military weapons?
    Further, was it not reasonable to assume that it would be exploited for peaceful purposes on a non-controlled basis, giving a State important economic advantages?»
19 — These questions have remained essentially unanswered to this date and are likely to remain so. As such they cast an ominous shadow over the entire IAEA concept and system of safeguards against governmental diversions. For a government bent on going nuclear in the sense that it wants to develop and dispose of an independent nuclear explosives capability will almost certainly either stay away from the NPT and its collateral IAEA safeguards — like India and some Middle Eastern, African and South American States —, or simply invoke the readily available military exemption provision, or withdraw from the NPT — which courses of actions conceivably are most likely to be followed, in the event, by some other Middle Eastern and Asian states. Certainly, it would not seem to make much sense for any such state to expose itself to the risk of being caught red-handed in an embarrassing act when it has the internationally confirmed legal right to close the curtains on same whenever and for as long as it pleases.

20 — If then, as it appears to be the case, this mile-wide loop-hole cannot be closed for whatever mix of reasons, it would not seem to hurt the nonproliferation cause to admit so much — quite the contrary. In fact it would permit to concentrate our scarce resources for attacking and eventually neutralizing the much more real dangers arising from eventual non-governmental diversions of special fissionable material.

E.  Avenues for Preventing Non-Governmental Diversions

21 — Transport and storage of special fissionable material are seen to provide the two most significant opportunities for non-govern-
_____________
    24     GOV/COM/OR. 2, § 56 (translated from: «Declaration de la Delegation Suisse», DPF, Berne, 1970, p. 8).

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     215

mental diversions. And if the change of focus from governmental to non-governmental diversion safeguards would indicate a radically new approach to safeguards from the point of view of those eventually entrusted with the related tasks, the parameters «transport» and «storage» may by themselves lead the thinking away from conventional safeguards concepts the more they are allowed to dominate this thinking. And dominate they must if non-governmental diversions are seriously going to be sought to be prevented by all available means. Which leads to the theoretically ideal solution of a contained nuclear energy system entailing zero transport and storage of special fissionable material.

22 — What are the opportunities, what the limits — from the scientific and the technological point of view — for such a system? The main input, of course, would still be natural uranium or thorium, but that, by itself, could hardly serve for terror, blackmail or even weapon production purposes. This source material would then have to be converted to nuclear fuel on site, fully automatically, preferably in a continuous fashion requiring no storage for the fuel and, ideally, spent fuel would be processed fully on site, too. The nuclear fuel thus produced would be used exclusively at the nuclear power plant thus served, with thermal and electrical energy being the system's only significant output.

23 — This theorical model depends, for its realization, primarily on the commercial availability of source material conversion systems (SMCS), the installation and operation of which will result in economically and/or politically acceptable fuel costs. Possible SMCS candidates are seen primarily in the following systems 25:

1.     Laser isotope separation systems
2.     Plasma centrifuge isotope separation systems
3.     Ultra-centrifuge isotope separation systems
4.     Jet-nozzle isotope separation systems
5.     Micro-explosion breeder reactors 26.
24 — These systems would seem to avail themselves for economic development, production and eventual application on the sizes indicated by the nuclear power plants they would be intended to serve in an interlinked, integrated way on site. Although the authors do not presently expect either gas-diffusion plants or conventional breeder (e.g. LMFBR) systems to be suitable for such integrated nuclear energy systems (INES), a respective comparative economic analysis might profitably be complemented by a corresponding expansion of the list of conceivable alterna-
______________
    25     Boskma, P., «Uranium Enrichment Technologies and the Demand for Enriched Uranium» in: Nuclear Proliferation Problems, op. cit., p. 59-64; see also the forthcoming SIPRI study on uranium enrichment.
    26     See: §§ 45-51.

216     H.A. KELLER - P. BÄHR - P. B. KALFF

tive conversion systems. With the possible exceptions of the ultra-centrifuge and the jet-nozzle systems — none of these SMCS is likely to become commercially available before some ten years, even assuming sufficient r&d funds to be available. Nevertheless, a concentrated effort to fully explore this novel nuclear avenue appears to be indicated by, and is recommended because of the inherently high safety against non-governmental diversions of special fissionable material uniquely provided by the INES system.

III. ECONOMIC CONSIDERATIONS
A. General

25 — The importance of an international treaty in terms of its security, political and/or economic significance tends to equip it and its provisions with a commensurate momentum of their own, governed primarily by related developments and the laws of political expediency. Thus, provisions of initially secondary importance may suddenly be discovered to avail themselves for meeting a need which may not have been foreseen and whose satisfaction with a given treaty instrument may consequently not reflect the original intentions and objectives of its signatories, and may in fact run counter both the treaty's proclaimed objectives and the legitimate interests of those having subscribed to it.

26 — A situation of this nature seems now in the making. The NPT provides for verification of the obligations undertaken by its signatories, a.o., by way of international controls of their peaceful nuclear facilities and the involved fissionable material in particular. At the time of its development the NPT's reference to «other nuclear explosive devices» was generally considered to be directed at excavation-type peaceful applications of nuclear explosives, generally described as Plowshare programs27.
    Another nuclear explosion aspect of potentially far broader interest and economic significance has been outlined in a theoretical way in our 1968 study and in the meantime has acquired concrete form. In Article IV, the NPT specifies :

«Nothing in this Treaty shall he interpreted as affecting the inalienable right of all 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».
_______________
    27     Even though, the Japanese Delegation sought already then to have the NPT distinguish between nuclear micro- and macro-explosions and to have the former exempted from all NPT restrictions.

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     217

27 — The reservation that the related rights for peaceful nuclear activities are limited by the obligations undertaken under Articles I and II may turn out to be — economically and politically — a highly damaging one to NNWS. As such it may be inadmissible inasmuch as it may jeopardize both the development and early availability of «soft» Plowshare devices, as well as of some advanced nuclear reactors involving laser, electron or other high-energy beams and entailing no comparable ecological loads. For neither eventually feasible non-fission-induced boron/hydrogen explosives, nor the concept to compress minute quantities of fission and/or fusion material with such beams to the effect of technically contained nuclear micro-explosions, can be denied to involve a «nuclear explosive device».

B. Nuclear Macro-Explosions

28 — On the subject of peaceful uses of nuclear explosions, the NPT has served to focus world-wide attention on a highly promising new technology for economic large-scale excavations — even though, primarily for ecological reasons, it has, for the moment, moved out of focus in the very country of its birth, the United States 28. Air blast and seismic effects aside, radioactivity releases on any level — in the view of a growingly ecology-minded public — have become, and are likely to remain the key obstacle to the early large-scale application of the presently still «hard» Plowshare technology anywhere in the western world.

29 — The Soviet Union is known to have placed itself in the forefront of this technology's development and is reported to have actually commenced the execution of one of its key Plowshare projects, namely the link of, and partial diversion of the Arctic-bound Pechora River to, respectively with the Kama River — eventually leading into the Caspian Sea — by way of an over 100 km long, nuclearly excavated canal 29. No positive assurance has been obtained that the radioactivity problem known to be associated with nuclear surface excavations has been solved there — under which circumstances a basic requirement would be met for Plowshare to qualify as a soft, i.e. an ecology-oriented or even ecologically safe technology.

30 — Individual ecological reservations notwithstanding, numerous Plowshare projets of equally vast economic significance for the areas directly involved and beyond have indeed been conceived of, as is evidenced in the following indicative list of possible application sites for corresponding water resources management within and beyond the involved drainage basins.
_____________
    28     AP, «U.S. to End Atoms-for-Peace Tests», International Herald Tribune, 3/5/71.
    29     Kirejev, V. W., et al., «Excavation by Grouped Nuclear Explosions in Alluvial Rocks», IAEA-TC-I-4/14, Vienna, 1975.

218    H. A. KELLER - P. BÄHR - P. B. KALFF

31 — In light of these significant opportunities for applications of the eventually available soft Plowshare technology, it seemed proper to seek every possible guarantee that under the NPT these services would actually become available under adequate international mechanisms providing them on a non-discriminatory, equitable basis with due consideration of all relevant factors 30. In exchange for the abdication of their sovereign rights to develop the peaceful nuclear explosion technology for economic development of their natural resources, the NNWS were thus given assurances in Article V to the effect that:

«... potential benefits from any peaceful applications of nuclear explosions will be made available to non-nuclear-weapon States Party to the 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».
_____________
    30     In their 1968 NPT study (op. cit.), the authors stressed the economic significance of most Plowshare projets to transcend national boundaries. Which would indicate close consultations and, eventually, the prior conclusion of agreements between all parties involved providing for equitable compensations for all damages and benefits thus to be incurred. Related criteria and guidelines have been proposed (ibid., § 67) on the basis of the Helsinki Rules of the International Law Association (London 1967). The Article V concept of «adequate representation of Non-Nuclear-Weapon States» may require these criteria, guidelines and services to be developed outside the IAEA. Perhaps, as proposed by Jamaica, «the new machinery whilst co-operating with IAEA should function within the United Nations system» (UNGA, XXIV, A/7678, p. 24).
   Concerning Plowshare studies, see:
Gerber, C. R., et al., «Plowshare - A Selected, Annotated Bibliography of the Civil, Industrial, and Scientific Uses for Nuclear Explosives», TID-3522 (lat, ed.) CFSTI, Springfield VA;
Teller, E., et al., «The Constructive Uses of Nuclear Explosives», McGraw-Hill, New York, 1968;
Heiss, K. P., et al, «General Report on the Economics of Peaceful Uses of Nuclear Explosions», PNE-3005, Mathematica, Princeton, 1967;
Keller, H. A., «Plowshare - A New Key to Water Resources Development», Doublekay-6702, Basel - Princeton, 1967;
Keller, H. A. (ed.), «The Plowshare Technology - A Selected Documentation», Parts I and II, DoubIekay-7502/3, Basel, 1975;
Kruger, P., «Peaceful Nuclear Explosions», European Nuclear Conference, Paris, April 1975;
IAEA, «The Agency's Responsibility to Provide Services in Connection with Nuclear Explosions for Peaceful Purposes», GC (XIII) / 410, Vienna, 1969; IAEA, «Peaceful Nuclear Explosions», STI/PUB/367, Vienna, 1972; IAEA, «Review of Activities in Connection with Nuclear Explosions for Peaceful Purposes», GOV/INF/290, Vienna, 1975; IAEA, «Technical Committee on the Peaceful Uses of Nuclear Explosions», TC-I, Vienna, 1975.

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     219

32 —

TABLE 1
Plowshare Project              Rivers or Seas involved              Main Purposes            States Involved
 
 
1. AFRICA
New Suez Canal Mediterranean,
Red Sea
navigation UAR
Quattara Mediterranean,
Quattara Depr.
hp, c UAR
Gabgaba Nile oroys, hp, n Sudan,
UAR
Batetela Congo oroys, hp, n Zaire,
Congo
Samo Niger, ri, n Mali,
Black Volta Upper Volta
Ivory Coast,
Ghana,
Niger,
Dahomey,
Nigeria
Niokolo Senegal, ri Senegal,
Gambia Mali,
Gambia

2. MIDDLE & SOUTH AMERICA
Tonala Mezcalapa fr, hp Mexico
Guerrero Balsas fr, hp Mexico
Santiago Canto fr, hp Cuba
New Panama Canal Atlantic, navigation Panama,
Pacific Nicaragua,
Columbia
Isabella Coco, ri, hp Honduras,
Rio Grande Nicaragua
Bando Atrato,
Pacific
fr, hp, c Columbia
Morosquillo Rio San Jorge,
Atlantic
fr, hp, c Columbia
Cariaco Rio Orinoco,
Rio Unare
ri, hp, n Venezuela
Tomo  Rio Orinoco, ri, hp, n Venezuela,
Rio Negro Columbia,
Brazil
Condor Rio Santiago oroys, hp Ecuador,
Peru
San Lourenco Rio Grande,
Paraiba
ri, hp Brazil
Paranapiaraba Paranapanema,
Rio Ribera
ri, hp Brazil

220     H.A. KELLER - P. BÄHR - P. B. KALFF

Plowshare Project              Rivers or Seas involved              Main Purposes            States Involved
   
 
Amambia Parana oroys, hp, n Brazil,
Paraguay,
Argentina
Fartura Rio Iguaca, ri, hp Brazil,
Rio Uruguay. Argentina,
Uruguay

3. ASIA (excl.

USSR for lack of data)
Karkheh Karkheh,
Karun River
ri, fr, n, c Iran
Nadia Ganges fr, n India,
Bangladesh
Deogarh Son River
Mahanadi River
ri, hp India
Kra Canal Andaman Sea, navigation Thailand,
Gulf of Siam Burma
Tsuyung Yangtze-Kiang, ri, fr, hp, n,           c China,
Red River North Vietnam
Wan' Kiang Hwang Ho oroys, hp, n China
 
 
 
 
 
 
 

Abbreviations:
navigation           sea-level navigation
hp                      hydro-power development
c                        local climate changes through alteration of hydrological cycles
oroys                  off-river over-year storage
n                        river navigation development
ri                        integration of drainage basins of rivers involved
fr                        flood control, flood relief

33 — Yet, in its ratification message to Congress, the United States Senate — unopposed by the US Government, which is bound by such directives — stated :

«The committee is satisfied that the U.S. responsibilities under article V will be carried out on a full-cost recovery basis and projects under article V will be undertaken only when the best interest of the United States is clearly evident» 3I. This position would not seem to be entirely compatible with either the spirit or the letter of the obligations undertaken by NPT- Nuclear Weapon States. The same may be said of the
____________
    31     US Senate Executive Report on NPT, op. cit., p. 19.

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     221

equally unchallenged unilateral decision by the U.S. Congress to practically stop — apparently for economy reasons — the further development of the peaceful nuclear excavation technology, or for that matter, of the NRC's recent unilateral and, formally and initially, infinite suspension — apparently for review purposes — of all exports of enriched uranium 32.

34 — Numerous countries have expressed interest in the early and equitable availability of the Plowshare technology. The above-mentioned unilateral actions seem to have limited — for the time being — the sources of the promised «potential benefits» to just one, the Soviet Union. Moreover, the ominous bilateral arrangements allowed under NPT Article V, are seen even less to provide for adequate consideration and protection of the related interests of countries eventually affected by the execution and/or operation of such far-reaching Plowshare projects.

35 — On the technical and ecological side it is to be noted that at present only one technology is known to eventually entail, for all practical purposes, neither primary nor secondary radioactivity. Yet, that very technology — if and when mastered — is also understood to require no special fissionable material but
____________
    32     In this context, a decision handed down by a US Court of Appeals appears to put all related US obligations under the NPT into an alarming perspective, even though the decision in question has no evident link to nuclear energy matters. As quoted and commented on by Detlev VAGTS of the Harvard Law School (in: Breaking the UN Embargo on Rhodesian Trade: Its Significance for Mining Interests, WWP & I, p. 42-44), the court said:
    «We think that there can be no blinking the purpose and effect of the Byrd Amendment. It was to detach this country from the UN boycott of Rhodesia in blatant disregard of our treaty undertakings. The legislative record shows that no member of Congress voting on the measure was under any doubt about what was involved then; and no amount of statutory interpretation now can make the Byrd Amendment other than what it was as presented to Congress, namely a measure which would make — and was intended to make — the United States a certain treaty violator.
    Under our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it ...».
    VAGTS thus comments (authors’ additions in brackets):

«It is not clear how often the combination of causes will arise for another version of this drama... However, other countries may assume the role of outcast (or special, perhaps secret US friend, as the case may be) as world politics shift. If that happens, we know that the United States will participate in the boycott (of some Non-Nuclear-Weapon States, e.g. concerning peaceful nuclear explosion services, and/or delivery of nuclear material, equipment and/or know-how) only up to the point where its own interests seem to be adversely affected, regardless of its treaty commitments».
    And while VAGTS, of course, comments on the concrete case of the UN embargo on Rhodesia, his observations on the Byrd Amendment and the related court ruling — as indicated by the authors' additions — would seem to readily avail themselves for extrapolation and application to the US obligations under the NPT
and die related congressional actions. Indeed, the question also might be raised as to the possible effect the latter have had already, and may yet produce, on the United States status with die NPT.

222     H. A. KELLER - P. BÄHR - P. B. KALFF

instead readily available and practically uncontrollable source materials 33.

36 — Available data suggest that the USSR Plowshare programs have been developed to the level of industrial applications in several fields, particularly water and mineral resources development 34.
This pioneering work is commendable and the Soviet Union deserves credit for both the technology's factual development and its efforts on the international, level to exempt it from all technology-unrelated restraints such as those issuing from efforts to curb the nuclear arms race and proliferation.

37 — Nevertheless, dependency on any one single national source for such economic key services is hardly acceptable or even ideal for those interested in them, and the option to seek to obtain them on either a bilateral or an international basis does not significantly alter this outlook. This unfortunate situation is seen to have further strengthened the respective reservations of several key countries and in fact may be expected to eventually result in experiments similar to and beyond that of India.

C.  Nuclear Micro-Explosions
1. General

38 — The concept to compress fusion pellets to supra-high densities and to ignite them to the effect of technically contained, nuclear micro-explosions by way of specially tailored, ultra-short laser bursts is generally credited to Dr. John H. Nuckolls of the University of California's Lawrence Radiation Laboratory (now: LLL, for Lawrence Livermore Laboratory). It dates back to the early sixties, may be viewed as a spin-off of Nuckolls' involvement in nuclear weapons r&d, and its development to-date has most probably benefitted considerably from the LLL's advanced nuclear weapon codes, studies and related know-how 35.
____________
    33     Although not presently discussed with regard to this technology's eventual security implications, it goes without saying that the very significant economic and ecological advantages of this technology can be expected to be paralleled by a commensurate security drawback.
    34     Nordyke, M. D., «A Review of Soviet Data on the Peaceful Uses of Nuclear Explosions», LLL, UCRL-51414 Rev. 1, TID-4500, UC-35, Livermore, 1974 (reproduced in: Doublekay-7502, op. cit.).
    35     Hora, H., «Laser Plasmas and Nuclear Energy», Plenum Press, New York, 1975; Emmet, J. L., et al., «Fusion Power by Laser Implosion», Scientific American, New York, June 1974; Boyer, K., «U.S. AEC Laser-Fusion Program», LA-DC-72-1113, LASL, Los Alamos, 1974; Brueckner, K. A., et al., «Laser-Driven Fusion», Rev. Mod. Phys., Vol. 46, N° 2, April 1974;

(Continuation on following page.)
THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     223

2. Programs and Adverse Experiences with the IAEA and Others

39 — Even though, significant development efforts on the micro-explosion, or inertial confinement thermonuclear reactor concept have, in earnest, been started only in this decade primarily in the United States and the Soviet Union. In 1971, an American industrial group, KMS Industries, Inc., Ann Arbor, Mich., obtained USAEC permission «to conduct, at its own expense, a research and development program in which it would attempt to achieve controlled thermonuclear reactions that might be applied in a potential fusion power reactor. The work would involve the irradiation of pellets of thermonuclear material by a high-power, short-pulsed laser. The pellets would be heated to thermonuclear temperatures... very rapidly and the thermonuclear energy possibly released on a controlled basis in a reactor».

40 — Efforts by the authors — started in early 1972 — to interest some non-American atomic energy authorities and involved industries in this novel approach to peaceful nuclear energy development and applications have led to some preliminary arrangements. More recently, a company was established in Switzerland which, eventually, might serve as a catalyst for the previously proposed broader and internationally supported venture onto those new horizons. Related programs are known
______________
(Continuation of preceding page.)

Teller, E., «Futurology of High-Intensity Lasers», in: Laser Inter action, (Schwarz + Hora, eds), Vol. 3 A, Plenum Press, New York, 1974, p. 3-10; Charatis, G., et al., «Experimental Study of Laser Driven Compression of Spherical Glass Shells», KMSF-U219, Ann Arbor, 1974; Lubin, M., et al., «Short-Pulse-Laser-Heated Plasma Experiments», Nuclear Fusion, Vol. 13 (6), 1973, p. 829-838; Booth, L. A., «Central Station Power Generation by Laser-Driven Fusion», LA-4858-MS, Vol I, 1972; McCann, T. E., et al., «Neutron Production in Electron Beam Targets», APS meeting, Albuquerque, June 1972; Winterberg, F., «Production of Dense Thermonuclear Plasmas by Intense Ion Beams», Plasma Physics, Vol. 17, 1974, p. 69-77; Yonas, G., et al., «Electron Beam Focusing and Application to Pulsed Fusion», Nucl. Fusion, Vol. 14, 1974, p. 731-740.
    For an analysis of the NPT-related issues and the opportunities evolving from the nuclear micro-explosion development, see: Keller, H. A., et al., «A Documentation and Interpretation on Laser- and Electron Beam-Induced Fusion Energy», DoubIekay-7251, Basel, 1972; also, by the same author: «A Case for Pioneering Actions on Nuclear Micro-Explosion Systems», Life Report IV, Doublekay-7351, Basel, 1973.
    Papers reflecting related programs outside the United States are indicatively listed in footnote 36.
    The apparently horrendous financial and economy implications of the projected investments in conventional nuclear energy programs, and the savings eventually attainable by way of the micro-explosion reactor systems, deserve and are planned to be analysed in detail separately.

224     H.A. KELLER - P. BÄHR - P. B. KALFF

to have been commenced, a.o., in Britain, France, Canada, Australia, Japan, Israel and Switzerland 36.

41 — A corresponding key invention — covering hybrid pellets — was made by an AEC-independent United States scientist in Switzerland under contract with the author in August 1972 37.
____________
    36     The Swiss Federal Institute for Reactor Research, EIR in Würenlingen, a.o., is conducting numerical and other studies on various aspects of hybrid micro-explosion systems using fissionable and fusionable material.

    Indications of Micro-Explosion Works Conducted Outside the United States:
«The Institutes which reported definitely on fusion neutrons from laser produced plasmas are:
Lebedev-Institute (Group of Basov-Kxyukov) (USSR)
Limeil Laboratories CEA (France)
Laser Energetics Lab., University of Rochester (USA)
Sandia Laboratories (USA)
Osaka University (Japan)
Max Planck-Institute, Garching (FRG)
Lebedev-Institute (Group of Basov-Sklizkov) (USSR)
Lawrence Livermore Labs (USA)
Los Alamos Scientific Labs (USA)
Naval Research Labs (USA)
Lebedev-Institute (Group of Prokhorov-Pashinin) (USSR)
KMS-Fusion Industries (USA)
Academy of Science, Peking (China)
Polish Academy of Science (Poland)
... The Soreq Nuclear Institute (Israel), the Australian State University and the Battelle Institute, Golombus, Ohio (USA) are very advanced in producing neutrons».
Excerpt from: Laser Interaction, (Schwarz + Hora, eds.), Vol. 3 B, Plenum Press, New York, 1974, p. 799-800.
    Indicative scientific publications are seen to be:
Basov, N. G., et al., «Investigation of Plasma Parameters at the Spherical Heating of the Isolated Solid Target by High-Power Laser Radiation», Lebedev Physical Institute, Moscow, in: Laser Interaction, op. cit., Vol. 3/B, New York, 1974;
Hora, H., «Coupling of Laser Radiation into Plasma by Dynamic Absorption Causing Super-Efficient Compression*), Atomkernenergie, Vol. 24-3, 1974, p. 187-192;
Hughes, J. L., «Laser-CTR Developments in Australia», Australian National University, Canberra, in: Laser Interaction, op. cit., Vol. 3 B, New York, 1974, p. 755-773;
Yamanaka, C, et al., «Thermonuclear Fusion Plasma Heated by Lasers», Institute of Laser Engineering, Osaka, in: Laser Interaction, op. cit., Vol. 3 B, New York, 1974, p. 629-665;
Spalding, L, «Some Reactor Implications of Laser Fusion», UKAEA, Culham Laboratory, Abingdon, in: Laser Interaction, op. cit., Vol. 3/B, New York, 1974, p. 775-797;
Floux, F., et al., «X-Ray Emission from Laser Created Plasmas», Phys. Lett., A. Vol. 45 (6), 1973, p. 483-484;
Weil, S. (ed.), «Selected Bibliography on Plasma Production by Lasers», Israel AEC, Tel Aviv, 1973;
Hohla, K., «The Iodine Laser, A High Power Gas Laser», Institute for Plasma Physics, Munich, in: Laser Interaction, op. cit., Vol. 3 A, New York, 1974, p. 133-146;
Decoste, R., et al., «Linear and Nonlinear Heating of a Cold Dense Plasma by Pulsed CO2 Laser Radiation», Report 73-895-01, Institut de Recherche de l’Hydro-Québec, Varennes, 1973;
Seifritz, W., et al., «Laser Induced Thermonuclear Micro-Explosion Using Fissionable Triggers», ANS Philadelphia paper, EIR, Würenlingen, 1974.
37 Winterberg, F., «Micro-Fission Explosions and Controlled Release of Thermo-nuclear Energy», Nature, Vol. 241, Feb. 16, 1973, p. 449-450.

THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     225

Attempts to safeguard its prompt availability for investigation and eventual development by way of the IAEA journal Nuclear Fusion were accompanied by the following developments:

  • The inventor was issued a secrecy order by the AEC (which reportedly obtained a copy of the manuscript by way of the IAEA referee) and the US Mission in Vienna intervened promptly at the IAEA with the result that the IAEA refused to publish the paper on the ground that it contains «restricted data» 38.
  • Three Soviet scientists jointly published an intriguingly similar-looking English-version paper as an original work (containing a possible duplication of a calculation error contained in the manuscript submitted to Nuclear Fusion) with priority claims in apparent conflict with those of the inventor 39.
  • 42 — This incident 40 raises some questions concerning the handling of scientific information by the IAEA, as well as the observance of key IAEA statutory obligations. Which in no way is a reflection on the integrity, competence or sincerity of the IAEA officials involved, but is to question some of the policies, methods and basic reasonings which have led to this institutionalized reversed spin-off.

    3. Development Trends and Possible Consequences
    on Other Nuclear Energy Programs

    43 — Since 1972 a dislocation in fusion r&d priorities away from magnetic to inertial confinement can be observed and recent de-classifications in the laser-fusion field by the AEC can be expected to advance this process still further. The total US expenditures on fusion r&d in 1974 reached about 100 mio $, almost half of which went into micro-explosion programs.
    ______________
        38     The key details of this case have been presented and analysed in Doublekay-7351,. op. cit., p. viii-x, 3/4.
        39     Askarjan, G. A., et al., «Application of Super-High Compression of Matter by Reactive Ablation Pressure for Production of Microcritical Mass of Fisser, Production of Super-Strong Magnetic Field and Acceleration of Charged Particles», Lebedev, Preprint N° 109, Moscow, 1973.
        The footnote of this preprint reads: «This paper reproduces a Lebedev Physical Institute Report of July, 1972, which was sent to JETP-Letters August, 1972 (published with delaying in Vol. 17 NIO, May 20, 1973)».
        40     The Swiss Government sought to obtain an explanation of the circumstances of this matter from the IAEA but reportedly has received less than satisfactory answers to-date. As the legitimate interests of a wider audience seem thus to have been jeopardized, a more productive inquiry aimed at forestalling other such happenings might be called for by an interested party: The related key provision of the IAEA Statute is seen to be Article VII.F. See also: GOV/COM. 22/6, p. 27-29.

    226     H.A. KELLER - P. BÄHR - P. B. KALFF

    A US Congressman recently introduced a bill for the accelerated development of micro-explosion fusion systems on a scale paralleling the Manhattan project of the early fourties 41. Recent data strongly suggest hybrid micro-explosion systems (using both fissionable and fusionable material for obtaining higher gain factors 42 and/or for high-efficiency breeding of U-233 or plutonim in the blanket zone) to offer substantial economic advantages. Most significant, in the case of the eventual boron-hydrogen reaction 43, this particular hybrid system would entail almost no radioactive wastes.

    44 — All these programs and activities have already led to expectations significantly altering the nuclear energy supply outlook for as early as the second half of the eighties and beyond in that they hold the promise and possibility to essentially by-pass the presently planned uranium enrichment facilities. As explained below, this seems to be feasible and economically indicated under conditions fully meeting the overall electricity demand and the fuel requirements of the fission power plants then in operation.

    4. Micro-Explosion vs. Conventional Breeder Reactor Concepts 44

    45 — The plutonium inventory in a 1000 MWe fast breeder reactor is about 2500 kg, representing a capital investment of some 25 mio $ at present prices. The presently developed liquid metal breeder reactor (LMFBR) is calculated on this scale to produce some 100 kg plutonium (or the more valuable U-233, depending on the feed input) per year, compared to some 250 kg for a corresponding gas-cooled breeder reactor (GCFBR) which, however, seems to trail the LMFBR significantly with regard to their development levels.

    46 — In contrast to this, a micro-explosion breeder reactor — trailing, of course, both LMFBR and GCFBR in development levels — will require a thorium or natural uranium inventory of some 150 t
    ____________
        41     US Congressman Richard T. Hanna, «The Fusion Energy Act», H.R. 17538, Congressional Record, 93rd G, Vol. 120, N° 167, Washington, 12/3/74.
        42     In die case of pure-fusion micro-explosion systems, the gain factor is calculated to be about 200, whereas in the case of hybrid pellets using both fissionable and fusionable material levels of 1400 and more may be obtained even with smaller reactors units.
        43     Weaver, T. A., et al., «Exotic CTR Fuels for Direct Conversion-Utilizing Fusion Reactors», UCID-16230, Livermore, 1973; Hora, H., «First Possible Exotherm Hydrogen-Boron11-Reactions by Laser Compression with the Nonlinear Force», extracts published in Laser Focus, 4, 1975; Hora, H., «Increased Nuclear Energy Yields from the Fast Implosion of Cold Shells Driven by Nonlinear Laser-Plasma Interactions», Institut für Experimentalphysik, Chr. Albrechts-Universität, Kiel, 1975.
        44     Private communications to the author. See also:
    Seifritz, W., et al., «Uranium and Thorium Shells Serving as Tampers of DT-Fuel Pellets for the Electron Beam Induced Fusion Approach», joint EIR/Nuclear Ltd. paper to be presented at June ANS meeting in New Orleans.

    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     227

    (representing some 4 mio $ at present prices), but no special fissionable material such as plutonium or U-233 for inventory purposes — hence the system's unique, inherent safety against an accidental or sabotage blow-up. The financial savings entailed in this inventory feature are not likely to be lost to other design features either. Moreover — and economically most significant — a 1000 MWe micro-explosion breeder reactor is conservatively calculated to be capable of producing annually, ceteris paribus, over 2700 kg gross 45 and over 2000 kg net U-233 or plutonium. Besides, enough tritium for on-site production of the DT fusion pellets required is thereby obtained as well — all of which in forms and ways surpassing present and presently anticipated safety and environmental load standards.

    48 —

    TABLE II
    1000 MWe Integrated Micro-Explosion Breeder Reactor System
    Preliminary Input and Output Indices

    A INVENTORY             Quantity     Present Market Value
    Thorium,                  150 t        4 mio $
        or Natural Uranium    150 t                 2.5 mio $

    B ANNUAL INPUT
    Lithium                  1000 kg            20 000 $
    Deuterium,              <1000 kg           >80 000 $
    Thorium,                >2000 kg     >50 000 $
        or Natural Uranium  >2000 kg                >31 000 $

    C ANNUAL OUTPUT
    U-233,                  >2000 kg     >32 mio $
        or Plutonium        >2000 kg                >20 mio $

    Electricity (75% load, 15 mills/KWh)
    Breeder Unit 1000 MWe    5900 GWh          88.5 mio $
    Conventional Reactor Units
    totalling 3000 MWe,
    using only fuel supplied
    from Breeder Unit     >17 700 GWh         >267 mio $
    Total System Output   >23 600 GWh         >354 mio $
    ___________
        45     The figures presented are based on LIDSKY's 0.3955 capture rate (rate of D-T reaction neutrons captured in thorium) as quoted in: Leonard, T. A., Review of Fusion-Fission Concepts, Nuclear Technology, Vol. 20, December, 1973. Allowance of a 50% reduction effect is made for reactions characteristical of structure of and material used in pellet, reactor chamber and blanket zone.

    228     H.A. KELLER - P. BÄHR - P. B. KALFF

    48 — In combination with an on-site reprocessing plant and equipped with the indicated fuel flow controls, such an integrated breeder unit — in addition to its own fusion pellet-driven 3000 MWth or 1000 MWe installed power — would be capable of supplying the fuel for some three conventional 1000 MWe, e.g. high-temperature gas-cooled (HTGR) nuclear power stations running all at the same power level.

    49 — The annual in- and output indices for an integrated 1000 MWe or 3000 MWth micro-explosion breeder reactor system work out as given in Table II. Although not readily comparable with present-generation reactor fuels supplied by enrichment facilities, the market value of U-233 and plutonium is seen to fairly reflect the capital costs of the development, construction and operation of the enrichment facilities. Table III gives the main indices of the URENCO and the EURODIF programs as reported in the published literature.

    50 —

    TABLE III
    Cost, Installed Power Requirements, Capacity and
    Schedule Indices of URENCO and EURODIF Programs 46

                                                     EURODIF  URENCO
    Separative work capacity
      of main plants (in t/y)                        9 000   10 000

    kg U-235 contained in fuel produced if
      plant were set up and run at full capacity
      for fuel with following enrichment
        2%                                          68 400   76 000
        3%                                          60 300   67 000
        4%                                          56 300   62 500
        5%                                          53 100   59 000
        90 % (the reference plants are not
        known to be laid out for such fuels)        46 800   52 000
    Required installed electric power (MW)           3 000      250
    Estimated plant costs at 1975 prices (mio $)     3 000    2 400
    Estimated begin of commercial operations          1979     1977

    51 — With its potential to annually produce thousands of kilograms of readily available U-233 or plutonium for feeding additional — rather than pre-emptying satellite — conventional nuclear power stations with a multitude of its own installed power, the
    ____________
        46     Nucleonics Week, January 2, 1975, p. 2; and private communications to the author. See also the forthcoming SIPRI enrichment study and the European Nuclear Conference, Paris, April, 1975.

    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     229

    integrated micro-explosion breeder reactor seems to provide an economically and ecologically highly attractive, viable alternative to the present breeder and enrichment systems. And with the latter's aim of a relatively secure and independent energy supply basis apparently attainable by way of this novel approach with little or no delay, this program would seem worth exploring — and safeguarding — under any set of circumstances.

    5. What Limitations on Micro-Explosion System Developments
    by and for NNWS Might Issue from the NPT?

    52 — With the NPT failing to distinguish between nuclear micro- and macro-explosions and related devices, the problem now arises as to whether Non-Nuclear-Weapon States — irrespective of whether they have abstained from, signed or ratified the NPT – are prohibited to take part in the development and implement tation of related programs (whereby alone they could make sure that these benefits will become available to them under acceptable conditions and at the earliest time science and technology rather than political and/or economic expediency — afford). This is so, because those countries which — due partly to their secret nuclear weapons programs — are understood to enjoy a considerable lead in related research and development works, are themselves under the respectively strict obligations defined in Article I of the NPT:

        «Each nuclear-weapon State Party to the 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».
    53 — On the other hand, NPT Nuclear Weapon States, too subscribed to the following NPT preambular paragraphs :     «Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technolocial 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 the 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 ...».
    230     H. A. KELLER - P. BÄHR - P. B. KALFF

    54 — These apparently contradictory obligations would not seem to carry the same legal weight. This is even more so as the NPT embodies such other noble declarations of intentions in its preamble as the «cessation of the nuclear arms race», «effective measures in the direction of nuclear disarmament» and the «liquidation of their existing stockpiles ... pursuant to a Treaty on general and complete disarmament under strict and effective international control».

    55 — Accordingly, chances for NNWS to reduce the apparent lead of the United States and the Soviet Union and the corresponding dependencies of the NNWS in this field, by way of co-operation arrangements — e.g. with US firms and institutes — involving the unimpeded exchange of related data, know-how, equipment and material, depend on an authoritative ruling exempting nuclear micro-explosion systems from all NPT restrictions. Unless and until such a ruling is obtained, the NPT would seem to avail itself for conveniently preventing the supply of factually or claimed-to-be-related services, equipments and/or material to any interested NNWS in that the above NPT «obligation» could be invoked whenever circumstances might indicate such a course of action. The related precedents recorded under both the Nuclear Test Ban Treaty of 1963 and the NPT are certainly not indicative of a laissez-faire policy on matters of such economic and political significance, any more than are other, more recently recorded unilateral breaches of treaty obligations involving the supply of critically important material.

    6. Official Positions on Nuclear Micro-Explosion Systems vs. NPT

    56 — On the background of the above-mentioned Swiss entry in this field, the USAEC 47 was consulted on the matter last year. In his answer of December 16, 1974, the then AEC General Manager, Dr. John A. Erlewine, managed to evade all point-blank questions elegantly. He referred to the published Hearings of the US Congressional Joint Committee on Atomic Energy, Nov. 10/11, regarding thermonuclear research. He also stated:

        «There are, of course, problems in this area, particularly when the work involves classified thermonuclear weapons concepts. On the other hand, there are certain private research efforts underway in the United States on an unclassified basis looking toward peaceful applications which are compatible with NPT obligations. ______________
        47     Now: Energy Research and Development Agency (ERDA), resp. Nuclear Regulatory Commission (NRC).

    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     231

        With respect to your more specific questions about possible co-operative arrangements involving the transfer of materials, equipment and technology between Swiss or French and US entities, I believe this could properly be pursued in the course of discussions between agencies of the governments involved». 57 — The above-quoted AEC answer seems to say that the United States authorities consider micro-explosion reactor concepts to fall indeed under the restrictions of the NPT, at least inasmuch as fissionable material is involved. Such a position has, to our knowledge, not been taken publicly by representatives of any NPT Nuclear-Weapon State, yet seems to have considerable support in some quarters, and may thus be indicated to be assumed until a binding clarification to the contrary will have been worked out by the involved governments.

    58 — Such a clarification seems now — belately — under way. Of course, political factors may figure prominently among the reasons why, until the end of March 1975, the IAEA practically stood aloof of, and refused to take any initiative and much less to develop any measure of leadership on the subject of nuclear micro-explosion systems — as may be expected from and befit an international agency with, de facto, different degrees of independence vis-a-vis its member states. And which, incidently, appears to be another candid indication of the degree to which non-nuclear-weapon states can rely on this body for independent, imaginative and relevant guidance on more or less vital nuclear energy matters 48.

    59 — Even though, the issuing situation — where the Agency's director general himself appeared scrambling for guidance on what to expect from, and how to deal with micro-explosion works in relation to IAEA safeguards — is seen to have other roots as well. In 1970, the IAEA expressed the view that the safeguards agreement then in the making

    «should provide that the State and the Agency take account... of technological developments which increase the effectiveness of safeguards, including, in particular, developments pertaining to the principle of safeguarding effectively the flow of nuclear material by use of instruments and other techniques at certain strategic points» 49. _____________
        48     On this background and for further reasons, the present structure, composition and mandate of the International Energy Agency would not appear adequate and conducive for fairly and effectively contributing, eventually, to meeting even its members' actual and eventual energy problems (see: «Agreement on an International Energy Program», Paris, Nov. 18, 1974, as presented to UK Parliament in January, 1975, ref.: Cmmd. 5826).
        49     GOV/COM. 22/3, op. cit., p. 10.

    232     H. A. KELLER - P. BÄHR - P. B. KALFF

    60 — In his comment 50 on the respective IAEA report, the author drew attention to apparently relevant developments not linked to safeguards and related techniques. In particular he thus observed, that:

    «in the pursuit of a given objective, taking account of technological developments on a given road is patently not enough when scientific and technological progresses in related or entirely unrelated fields may turn that very road into a dead-end street with regard to that objective. For this cardinal reason, the Agency's mandate on NPT safeguarding measures should be defined less in terms of the highest safeguards efficiency science and technology may afford, than in terms of the NPT's overall aim of 'preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices'».
    61 — The author's recommendation then was to broaden the technology outlook far beyond that proposed by the Agency so as to rule out the possibility of being kept ignorant on relevant developments, of eventually being overrun by events and of eventually sitting on a well-oiled, sophisticated and highly cost-efficient, but, hélas, relatively irrelevant safeguards system 51.

    62 — Although the Australian, Italian, UK, USA and Swiss delegations seemed to underscore this point of the need for dynamic safeguards relevancy at the Safeguards Conference in 1970, the IAEA's final safeguards model provides only that the Agency

    «take full account of technological developments in the field of safeguards, and shall make every effort to ensure optimum cost-effectiveness and the application of the principle of safeguarding effectively the flow of nuclear material subject to safeguards under the Agreement by _____________
        50     Keller, H. A., «Comments on the International Atomic Energy Agency's Working Paper for the Safeguards Committee», Doublekay-7001, Basel, 1970, p. 16-17.
       51    This was to be accomplished in the following way (ibid., p. 17-18):
    «The Agreement should provide that the Parties to same, in the implementation of safeguards pursuant to this Agreement,
    1.    follow closely, by way of die Agency dissiminate without delay to all other IAEA Member States all knowledge on, and fully take account of all scientific and technological developments which might facilitate the diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices;
    2.    continuously review the adopted safeguards in light of these developments and eventually adapt, abandon and/or replace those which fail to pass the test of highest relevancy, at the earliest possible date; and
    3.    take account of technological developments which increase the effectiveness of safeguards including, in particular, developments pertaining to the principle of safeguarding effectively the flow of special fissionable material by use of instruments and other techniques at certain strategic points».
    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     233
    use of instruments and other techniques at certain strategic points to the extent that present or future technology permits» 52. 63 — There can be little doubt that, a.o., the eventual commercial availability of nuclear micro-explosion systems — particularly those applying their breeder capabilities — puts the safeguards question in a new light. With the development of these systems not obviously linked to safeguards or safeguards technologies, the IAEA may thus indeed have been under no formal obligation to monitor and seriously study the relevancy of this development with regard to the Agency's safeguards functions — related obligations conceivably issuing from its own Statute notwithstanding. And neither the number — over 1000 — nor the quality of scientific publications on various aspects of micro-explosion systems, as digested by the IAEA's most valuable INIS information system, could be expected to necessarily have a visible corrective influence on this bureaucratic position, any more than could the authors' repeated attempts to this effect, which date back to the fall of 1972.

    64 — On this background, it is not surprising that the first formal introduction of the subject of nuclear micro-explosion systems at the IAEA Board of Governors 53 was not exactly welcomed in all quarters. Yet, the importance promptly attributed to the overdue consideration of this subject by several delegations may be reflected in the sudden haste with which the Agency has felt obliged to try to overcome the consequences of several years of looking in other directions. Thus, by late March 1975, the nuclear-weapon states as well as India, Japan, the Federal Republic of Germany and Switzerland were invited to nominate each an expert for advising the Agency on the nuclear micro-explosion technology and its eventual significance in relation to Agency safeguards.

    65 — Indeed, the four latter states invited can already fall back on a few world-renowned authorities in this field. Yet, it is difficult to see how these specialists will be able — in either the hastily convened two-day or in the likely follow-up meetings — to do more than test the ground for a better-prepared attempt to properly exempt nuclear micro-explosion systems from all unnecessary NPT restrictions with due consideration of all relevant factors. For initial indications are that — if forced through — the delineation proposals launched by some NWS are on a direct collision course with what at present are understood
    ____________
        52     INFCIRC/153, op. cit., § 6.
        53     Effectuated by the Swiss Governor, Prof. Qaude Zangger; see: GOV/OR. 474, §§ 56-68, session of February 25, 1975.

    234     H.A. KELLER - P. BÄHR - P. B. KALFF

    to be the NNWS' related vital interests 54. In this security- and economically sensitive field, general agreement on ways and means ascertaining and facilitating the unrestricted exchange of related know-how, material and services would not seem to lay around the corner — and indeed may require more patience, understanding for NNWS' related interests and resourcefulness than has been evident in the development of the NPT and the IAEA NPT safeguards.

    66 — In light of this, it will then be more than interesting — for it would seem to be indicative of many important things — to follow the IAEA's, the NWS' and the NNWS' related positions and actions, and to see if, how and with which security, political and economic effects the IAEA will administer whatever formula may eventually be adopted for fully or partially exempting nuclear micro-explosion systems from the NPT restrictions.

    IV.  IN DEFENCE OF EXPANDED SAFEGUARDS MEASURES

    67 — As discussed elsewhere 55, the NPT entails significant jeopardies with regard to fundamental interests of NNWS. Its assymetric design and structural imbalance concerning the rights and obligations is not conducive to a fair distribution of related burdens and benefits, responsibilities and opportunities between interested NWS and NNWS. How then, could the actually and/or potentially gravely damaging security, political and/or economic consequences of this fait accompli be avoided without undue security risks and without unduly interfering in both sovereign states' internal affairs and their eventual participation in the development and application of nuclear energy for peaceful purposes? The following are seen to be key ingredients for a fruitful search for and development of corresponding solutions:

  • A clear understanding of every and all NPT obligations undertaken by NWS and NNWS.
  • A clear understanding of the IAEA NPT safeguards provisions.
  • A clear understanding of the national safeguards systems.
  • ____________
        54     These proposals provide for quantitative limits of the energy equivalent per shot — e.g. in the kilogram TNT range — allowed in micro-explosion reactor system developments for and by NNWS. As such they would seem to preserve the economically perhaps most interesting electron beam-ignited systems — involving much higher energy equivalents per shot — as the exclusive hunting ground of the NWS. The Swiss Government, for one, in its ratification message to Parliament of October 30, 1974 (12083), let it be known that it will not, in the event, accept any NPT or NPT-related prohibitions or restrictions on the development, production and application of any technically contained system entailing the controlled continuous or pulsed release of nuclear energy.
        55     Keller, H. A., et al., «On the Economic...», op. cit., passim.

    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     235

  • A clear understanding of the background for eventual governmental diversions of special fissionable material,
  • A clear understanding of the background for eventual non-governmental diversions of special fissionable material,
  • A clear understanding of the individual states' nuclear energy needs and the underlying factors, dynamics and implications,
  • A clear understanding of the development opportunities, trends and implications in nuclear energy matters.
  • 68 — An analysis of the above-detailed NPT obligations points in the direction of IAEA safeguards encompassing the entire range of NNWS obligations 56. Although entirely compatible with both the letter and the spirit of the NPT, a detailed monitoring of the adherence to some of these obligations could, most significantly, lead to an indirect control of the NPT Nuclear-Weapon States' adherence — or lack of it — to their related obligations. Indeed, with most nuclear-related benefits expected to eventually accrue to NNWS from or by way of the NPT being covered by NPT obligations applicable to both NNWS and NWS correspondingly, such an instrument might become the most effective single tool for ascertaining the prompt, comprehensive, non-discriminatory and equitable access to these perhaps crucial benefits. For, if NNWS can reasonably be assumed to be effectively deterred from eventually intended non-compliance with their NPT obligations simply «by the risk of early detection», one might assume such risks to entail a similarly high — or low — effectiveness in the case of obligations undertaken by NPT Nuclear-Weapon States.

    69 — In the course of the above outlined developments, some basic and some repairable deficiencies in the structure, content and application of the present international instruments to faciliate and safeguard the peaceful development of nuclear energy have become evident. A state not occupying a seat in the governing body of the IAEA would seem to have little chance to effectively indicate such deficiencies and a non-permanent member of that exclusive club may be confronted with additional and pursuasive restraints to always act in the way its related interests would indicate. This. firm state of affairs gives rise to situations not helpful in and to the pursuit of the Agency's noble objectives. Serious consideration of alternative and new approaches to these problems within and without the given institutions may thus be indicated. One such conceivably acceptable, viable and effective measure of redress may consist in the setting up of an Agency- and member-independent, permanent and fully empowered Delegation of Atlantis at the Board of Governors.
    _____________
        56     Keller, H.A., «Comments ...», op. cit., p. 2-8; see also: comment in footnote 10.

    234     H.A. KELLER - P. BÄHR - P. B. KALFF

    This delegation would serve and function primarily as an independent conduit for informal and formal testing and introduction of ideas and of information relevant to the Agency's tasks and originating from otherwise inhibited or excluded sources — e.g. delegates, individual scientists, scholars or Agency staff members — on a, perhaps, anonymous basis 57.

    V. CONCLUSIONS
    70 — Nuclear material, and special fissionable material in particular, appears to have become — and to remain for some decades — an inseparable companion of industrial and economic development as well as a source conveying unparalleled economic and political power upon the bearer — be he factual or believed-to-be. This indicates measures safeguarding the public and society as a whole from abuse, exploitation and threats to the health and life of man, without unduly interfering in the delicate fabric of industrial development and the related world markets.

    71 — The safeguards developed by the International Atomic Energy Agency for application under the Nonproliferation Treaty are recognized as an attempt to strike such a balance. Unfortunately, they are based on a treaty seen to be poked with inconsistencies, unbalanced rights and obligations and, most important, loop-holes of incredible sizes and implications. Specifically:

  • The treaty's infamous imbalances do not stop at its parties' rights and obligations — themselves key sources of considerable economic and security anxieties — but cross the security-sensitive verification border, with the Non-Nuclear-Weapon States required to subject themselves to a system verifying the fulfilment of some of their obligations, while the obligations undertaken by the Nuclear-Weapon States remain totally unchecked.
  • The perfectly fitting complement of the above deficiency consists in the NPT Non-Nuclear-Weapon States' formal permission to import — from any capable and willing supplier state —, produce on its own, stockpile and use any quantity of even bomb-grade fissionable material, all totally exempt from the IAEA NPT or any other international safeguards, provided this material is declared to be for military purposes. What more is needed to render to a total farce the world-widely supported non-proliferation idea, particularly in light of the apparently forthcoming possibility to economically produce very significant quantities of bomb-grade fissionable material
  • ____________
        57     Originally proposed jointly by the late Ch. Eckenstein, by H. Viteri de la Huerta and by the author, on the occasion of UNCTAD III, with the corresponding development and — aborted — introduction of the so-called Santiago Resolution (see: Doublekay-7351, op. cit., p. A 2).

    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     217

    with new enrichment techniques and/or in the course of an on-going new reactor development?
  • On the governmental level significant restraints would seem to have, and to continue to operate effectively against any diversion of nuclear material from safeguarded uses to nuclear weapons or purposes unknown — even without any international safeguards at all. On the other hand, some forces operating on the non-governmental level would seem to lack precisely those restraints and, moreover, seem measuring up frighteningly well to the task of acquiring and — to disastrous effects — exploiting the potential entailed in either the factual or made-believe possession of special fissionable material in particular. Of course, neither the NPT, nor the IAEA NPT safeguards seem to have any claim to even recognize that genuine problem, much less to actually do anything with a view to eventually bring these rapidly growing dangers under effective control. For the IAEA NPT safeguards rely essentially on a deterrence-by-the-risk-of-early-detection assumption, the validity of which is not apparent for eventual non-governmental diversions.
  • The NPT has already proven ineffective to prevent the spread of fission explosion capabilities. Moreover, it is not only by design ineffective to prevent the eventual acquisition of pure-fusion weapon capabilities, but actually diverts eventually existing forces onto this very road. Due mainly to developments partly foreseen already at the time of its birth, the relevancy of these deficiencies has grown since the treaty's coming into force. On the other hand, the security relevancy of its safeguards provisions is thereby seen to be decreasing commensurately.
  • 72 — In short, the road to nuclear proliferation seems paved with good intentions — like the NPT and the IAEA NPT safeguards, the primary effects of which appear to be to convey a false sense of security and to divert our attention from the genuine problems. Certainly, the NPT would not only seem to carry its name with questionable merit, but to embody such appalling deficiencies that one wonders whether some problems have produced a solution or the other way around. Indeed, the possibility may not safely be excluded that the present NPT safeguards will fall dangerously short of their stated aims, with the measures and activities thus generated constituting a potentially tragic, for distracting further exercise in irrelevancy — something E. F. Schumacher might also describe as:
    Optimizing the arrangement of the deck chairs on the Titanic.


     73 — With the IAEA NPT safeguards shown to address themselves only to one set of genuine problems — and that, moreover, on what appears to be the wrong level and the wrong means —

    238     H. A. KELLER - P. BÄHR - P. B. KALFF

    corrective steps seem to be indicated. An expansion of these safeguards to cover at least all of the obligations undertaken by NPT Non-Nuclear-Weapon States may constitute such a practical first step. Another step may be directed at eventual non-governmental diversions as a major source of dangers, with corresponding measures entailing, perhaps, a radically new approach to safeguards. The most promising possibility to effectively solve this latter problem is presently seen to rest with integrated nuclear energy systems entailing no transportation and/or storage of special fissionable material.

    74 — All considered, we find ourselves compelled to inquire whether the NPT in fact will turn out to be more than a costly security farce and if so, whether it is not deficient beyond repairs. Inasmuch as this treaty has been and is likely to remain — perhaps unnecessarily — excessively wanting, we cannot responsibly argue for its preservation in its present form.

    75 — But then, again political realities may not yet — and anyway not soon enough — become conducive to the apparently necessary fundamental reappraisal of the proliferation problem and the safeguards approach to contain it. Accordingly, it may be indicated — short of dispairing — to try to live with the present IAEA NPT safeguards, with no illusions as to their adequacy for effectively coping with a genuine and urgent problem of growing dimensions. For such a flexible posture might at least afford the effective pursuit of the two NPT-related objectives seen to deserve our all attention most:

  • Development and implementation of measures effectively preventing non-governmental diversions of special fissionable material.
  • Development and implementation of NPT safeguards providing effective protection of the involved interests of the NNWS in particular.
  • 76 — On the economic side of the «bargain », the NPT entails the potential of significant economic discriminations. Contrary to obligations solemnly undertaken by the NPT Nuclear-Weapon States, both the early and the equitable availability of the «potential benefits» of the peaceful nuclear explosion technology are — if indeed they ever were — no longer certain, and even less so on the stipulated «non-discriminatory basis». The development of these technologies and their availability to NNWS through independent, joint means might thus be considered with benefit outside the conventional frame.

    77 — The failure of the NPT to exempt nuclear micro-explosion systems from its restrictions may be innocent in its origin but will remain so only if it will be corrected accordingly — and promptly at that. The boron-hydrogen macro- and micro-explosion systems may still be decades away from reality and the micro-explosion breeder concept has indeed only most

    THE NPT vs. NUCLEAR ENERGY DEVELOPMENTS     239

    recently been conceived and is only now undergoing serious numerical and system analysis. Accordingly, even under the best of circumstances they are not likely to be commercially available before the late eighties — apparently imminent related experimental breakthroughs and corresponding financial supports and program leaps notwithstanding. Yet, and to no small degree, these systems' dates and terms of availability are seen to be determined by the restraints allowed to affect their development. And given their conceivably extraordinary eventual impact on existing and planned nuclear energy programs, numerous nuclear projects in the billion dollar range might unexpectedly prove too early to be second best, uneconomic to run or even entirely obsolete. The very commitments to such projects undertaken between now and then might thus become such a restraint which might prove politically and/or economically irresistable. Failure to interprete the NPT to the effect that it will not, in fact and in law, restrict the development of nuclear micro-explosion reactor systems by and for NNWS would be another such restraint — one which might cause opportunity costs to the national economies involved not only in terms of billions of dollars, but huge and moreover perhaps unnecessary ecological loads as well.

    78 — Of course, the question of nuclear micro-explosions also seems to embody vast security and economic implications, irrespective of whether or not — in the event, under the NPT and/or other significant constraints — all or some selected Non-Nuclear-Weapon States will be allowed to share the responsibilities and eventual fruits of this exiting new nuclear reactor development. This somewhat sobering assessment issues from the prospect implied above, that a micro-explosion breeder reactor seems to be in the cards which — while entailing none of the conventional breeder's vast potential dangers — would, on a comparable scale, provide over twenty times the latter's capability to produce special fissionable material. And while the NPT Nuclear-Weapon States, under informal and formal recent prodding, belately may have acknowledged this problem area and the need to resolve these problems under consultations with the Non-Nuclear-Weapon States promptly and satisfactorily, the answer — for very important technological and economic reasons — must not, in the event, be allowed in the form that only those nuclear micro-explosion systems entailing shots with no more than a few kilograms TNT energy equivalent shall be exempted from some or all NPT restrictions.

    79 — Finally, failure to clearly and promptly exempt the development of nuclear micro-explosion reactor systems by and for NNWS from all NPT restrictions — development and application of indicated alternative security measures notwithstanding — would appear to constitute a direct violation of at least the proclaimed spirit, if not indeed the letter (Preamble, Article 4), of this treaty. For such failure could produce a severe, if not

    240     H.A. KELLER - P. BÄHR - P.B. KALFF

    decisive blow against all independent efforts in this field and raise anew the specter of monopolies in economic key sectors. This is the more so, as there are no overriding reasons why, on security grounds, the NPT should be permitted to apply at all to micro-explosion reactor systems as they, or components thereof, cannot be turned into nuclear weapons any more than conventional nuclear reactors can be.

    The potential economic interests involved are too significant for NNWS industries to enter into this field and contribute their resources for its exploration and development as long as the NPT Damokles swords hanging over it are not removed. On the other side of the coin — and in all frankness we owe our American friends — we must admit that the temptations to invoke this convenient instrument for political and/or economic gains are substantial and not neutralizable by declarations of good intentions alone. Unless, of course, one does not mind the existing factual monopoly in nuclear energy matter to have not only been legally sanctioned by over 100 States, but also to have been expanded significantly by way of the NPT.

    Accordingly, it would seem to be timely and well to follow the (former) USAEC's suggestion and to take the matter up on the right levels of the governments concerned. And it would seem to be equally timely and well to draw some consequences from the non-proliferation experiences to-date and from the related developments and opportunities, e.g. as outlined in this report. Setting up the proposed Delegation of Atlantis at the IAEA Board of Governors appears to be just the minimum corrective measure thus indicated. Above and beyond that, the stipulated solution outside conventional frames — i.e. the development, among Non-Nuclear-Weapon States primarily, of an entirely new international nuclear energy service  58 involving, perhaps, both macro- and micro-explosion systems and services — might also be considered with benefit, at least as a longterm objective.

    H. Anton KELLER,
    Paul BÄHR and Peter B. KALFF.
    _____________
        58     The on-going debate on ways and means for exploration and exploitation of the sea bed's vast natural resources has already produced some worth-while ideas which might avail themselves for adaptation or use as a model in the development of an international nuclear explosion service reflecting these conditions. The Center for the Study of Democratic Institutions, Santa Barbara, California, and the Gottlieb Duttweiler Institut, Rüschlikon, are noted for their related efforts. See also:
    Mann-Borgese, E., et al., «Energy Policies in the International System», Center, Santa Barbara, 1975; Mann-Borgese, E., «The World Communities», Center, Santa Barbara, 1973; «International Plowshare Organization», Doublekay-6902 (X), Basel, 1969; «International Nuclear Institute», in: Doublekay-7351, Appendix A, Basel, 1973.