What's Intent Got to Do With It? Interpreting "peaceful Purpose" in Article Iv.1 of the Npt

• Citation: Vol. 32 No. 3
• Publication year: 2018
• topic: Military Law

What's Intent Got to Do with It? Interpreting "Peaceful Purpose" in Article IV.1 of the NPT

David S. Jonas

Ariel E. Braunstein

WHAT'S INTENT GOT TO DO WITH IT? INTERPRETING "PEACEFUL PURPOSE" IN ARTICLE IV.1 OF THE NPT

David S. Jonas^* Ariel E. Braunstein^**

"I can't explain what I mean. And even if I could, I'm not sure I'd feel like it."¹ 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.² 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."³ 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."⁴ A frequent debate surrounding

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Article IV is about the meaning and interpretation of "inalienable right."⁵ Generally, Non-Nuclear Weapon States (NNWS)⁶ 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.⁷ Conversely, NWS emphasize that NNWS' right to nuclear materials and technologies is conditioned⁸ on compliance with Articles I and II; this gives credence to their argument that NNWS are not entitled to all materials and technologies, which would enable them to develop the complete nuclear fuel cycle.⁹ 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.¹⁰

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

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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,"¹¹ 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,¹² 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?¹³ While the U.S. position has long been that a "peaceful purpose" is "non-aggressive" as opposed to "non-military,"¹⁴ 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)¹⁵ to analyze and interpret "peaceful purpose." It will then present the views

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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.¹⁶ 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.¹⁷ 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.¹⁸ 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.¹⁹ This is indeed how the scenario played out: Article

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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,"²⁰ 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.

It is therefore clear that the issue of ambiguity is in no way unique to the meaning of "peaceful purpose," especially considering the way treaties were drafted at the time the NPT entered into force.²¹ It is important to note at the outset that "peaceful use" and "peaceful purpose" are used interchangeably throughout the NPT.²² However, the difference between "use" and "purpose" is of paramount importance and will be further analyzed.

While very little information is available about what constitutes the use of nuclear energy for "peaceful purposes," some officials have made statements regarding what uses do not qualify as such.²³ It is therefore helpful to review these guidelines to determine which activities should be initially excluded from the category of "peaceful purpose" under Article IV.1 in order to define what does constitute a "peaceful purpose."

U.S. officials have disclosed "warning signs" considered to be indicative of non-peaceful nuclear activities and have listed criteria to consider in making such a determination.²⁴ Among the criteria are "the presence of unmarked

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nuclear facilities" and any measures taken by a state which are seemingly inconsistent with civilian nuclear programs.²⁵

These factors are useful in determining what constitutes a "peaceful purpose" because, in specifying activities beyond the realm of civilian use, they help delineate what clearly is not a "peaceful purpose." Scholars of nuclear nonproliferation law and policy have likewise spoken out in support of these criteria. One such supporter is Professor Eldon V.C. Greenberg, who serves as a legal advisor to the Nuclear Control Institute. He has stated:

If the [proliferation] risks are great, if there can be no reasonable civilian justification for particular forms of assistance or activities, and if there can be no certainty that safeguards would be effective with respect to such assistance or activities, then a presumption should arise under the [NPT] that such assistance or activities are not for a permissible, peaceful purpose but are rather for a weapons or explosive purpose and therefore in violation of Articles I and II.²⁶

Further, Robert Zarate concludes that Article IV presents a limited range of interpretations for "peaceful purposes" because "peaceful nuclear energy 'in conformity with articles I and II' excludes not only nuclear explosive technology for peaceful or non-peaceful purposes, but also other nuclear technology and assistance that could 'assist, encourage or induce' non-nuclear-weapon states 'to manufacture or otherwise acquire' nuclear explosive technology."²⁷

Interestingly, none of these guidelines mention nuclear materials and technologies that are used for military purposes but not as nuclear weapons or nuclear explosive devices. Such examples include depleted uranium (used both in armor-piercing projectiles and tank armor and shielding)²⁸ and naval reactor

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fuel (used to power nuclear submarines²⁹ and currently being studied as a means to power research and rescue submarines).³⁰ While being utilized in the military context may not immediately qualify as "non-peaceful" or violent, the use of such materials and technology in that manner normally serves a non-peaceful end.³¹ For example, while depleted uranium utilized in tank armor and shielding is intended for defensive and passive—rather than aggressive—purposes, depleted uranium is also used to make armor-piercing projectiles, which are intended for aggressive purposes. Likewise, naval reactor fuel powering a...