Fluet Partner Dave Jonas co-wrote an article for Emory International Law Review that discusses Part 1 of Article IV of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which states:
“Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.”
Read an excerpt of the article, titled “What’s Intent Got to Do with It? Interpreting ‘Peaceful Purpose’ in Article IV.1 of the NPT”, below, or see the full article.
What’s Intent Got to Do with It? Interpreting ‘Peaceful Purpose’ in Article IV.1 of the NPT
By David S. Jonas & Ariel E. Braunstein + For Emory International Law Review
“I can’t explain what I mean. And even if I could, I’m not sure I’d feel like it.”
Introduction
The drafters of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) seem to have taken the words of J.D. Salinger’s character, Holden Caulfield, to heart: Since it entered into force in 1970, the NPT has been the subject of contentious debate due, in large part, to its plethora of ambiguous provisions. It would not be a stretch to assert that, if the drafters were asked today to define any of these vague provisions, they might utter a retort similar to Caulfield’s own response.
Perhaps the NPT’s most controversial provision, in terms of meaningful current application (if only one must be singled out), is Part 1 of Article IV, which deals with states’ rights to nuclear energy for “peaceful purposes.” Article IV.1 states: “Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.” A frequent debate surrounding Article IV is about the meaning and interpretation of “inalienable right.” Generally, Non-Nuclear Weapon States (NNWS) adopt the position that the NPT gives them the inalienable right to pursue nuclear technology for peaceful purposes, and by limiting certain technologies and materials to which they may have access, Nuclear Weapon States (NWS) and other potential suppliers in the Nuclear Suppliers Group (NSG) are violating that right. Conversely, NWS emphasize that NNWS’ right to nuclear materials and technologies is conditioned on compliance with Articles I and II; this gives credence to their argument that NNWS are not entitled to allmaterials and technologies, which would enable them to develop the complete nuclear fuel cycle. This debate has evolved into what some NNWS have called “nuclear apartheid,” in which they claim that NWS deny them access to nuclear materials and technologies in order to maintain the status quo hierarchy.
However, there is another pressing ambiguity embedded in the text of Article IV.1. Despite the frequent debate over whether states are entitled to unbridled access to nuclear energy for peaceful purposes, nowhere does the NPT define exactly what constitutes a “peaceful purpose.” This is a vital distinction, especially considering that NNWS’ access to nuclear materials and technologies is expressly conditioned on Articles I and II. Articles I and II only prohibit the development and acquisition of “nuclear weapons” and “nuclear explosive devices,” but there exists a host of nuclear materials and technologies that are neither nuclear weapons/nuclear explosive devices nor strictly peaceful. Two such examples are depleted uranium and naval reactor fuel—both of which are used for military purposes.
While there are individualized, country-specific restrictions that delineate what constitutes the use of nuclear energy for “peaceful purposes,” such as export controls and nuclear cooperation agreements, there is neither a globally-accepted definition for “peaceful purpose” nor international guidelines to determine how to characterize materials that do not fall squarely within the parameters of Articles I and II. Therefore, the question arises: How should states in general—and the United States in particular—characterize materials that are neither nuclear weapons/nuclear explosive devices nor meant strictly for “peaceful purposes,” such as depleted uranium and naval reactor fuel? While the U.S. position has long been that a “peaceful purpose” is “non-aggressive” as opposed to “non-military,” an interpretation of “peaceful purpose” is nonetheless necessary to verify whether this is an acceptable position.
This Article will first discuss the limited views that states have put forth regarding the meaning of “peaceful purpose.” Next, it will incorporate the standards set out in the Vienna Convention on the Law of Treaties (VCLT) to analyze and interpret “peaceful purpose.” It will then present the views expressed both by the NWS and the NNWS as to the proper interpretation and application of Article IV as a whole, with specific emphasis on “peaceful purpose.” Finally, it will conclude by advocating that U.S. policy should dictate that depleted uranium and naval reactor fuel should not be considered uses of nuclear energy for “peaceful purposes.”
I. Ambiguity as a Theme: What Is Not a “Peaceful Purpose”
It is first important to note that “peaceful purpose” is not the only source of vague language in the NPT. On the contrary, the NPT is rife with ambiguity that has been the cause of fierce debate for nearly five decades. That being said, Article IV is one of its most ambiguous Articles—as much for the terms it uses as for those it does not. A prominent example is the notable absence of any language referring to enrichment and reprocessing (ENR). The drafters of the NPT were well aware of ENR while drafting the NPT, yet they consciously chose to exclude that specific language—“enrichment and reprocessing”—from Article IV. To specifically designate ENR as an inalienable right would be to give all states legal authority to develop the entire nuclear fuel cycle, which would, in turn, pose a great danger that states would divert the ENR technologies from civilian uses to nuclear weapons programs. Because the NWS were very hesitant to recognize such a right, both the NWS and NNWS eventually agreed to the sufficiently vague language of Article IV as it reads today so that the states in both groups would be able to present the final language as a victory to their respective governments. This is indeed how the scenario played out: Article IV.1, which underlines “the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes,” is ambiguous enough for NNWS to argue that ENR is implied as an inalienable right and for NWS to argue that it is not—thus, an arguably win-win scenario for both groups.
Read the full article.
