REVIEWING THE 

NUCLEAR NONPROLIFERATION TREATY 

Henry Sokolski 

Editor 

May 2010 

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ISBN 1-58487-444-9
iii

CONTENTS

Foreword ......................................................................... v

Part I: Introduction and Overview ............................ 1

1. The NPT’s Untapped Potential to Prevent 

Nuclear Proliferation .............................................. 3

Henry Sokolski 

Part II: The Nuclear Nonproliferation Treaty and 

Its History ......................................................................15

2. The Treaty on the Nonproliferation of Nuclear 

Weapons (Text) ......................................................17

3. What Does the History of the NPT Tell Us about 

Its Future? ................................................................27

Henry Sokolski

Part III: The NPT and Nuclear Weapons—Articles I, 

II, and VI ................................................................ 65

4. How Will the Nuclear Weapons Story End? ......67

Victor Gilinsky

5. Moving Toward Zero and Armageddon? ..........77

Henry Sokolski

Part IV: The NPT and Nuclear Safeguards ―

Article III...............................................................103

6. Peaceful Nuclear Energy and the Nuclear Nonproliferation Treaty...............................................105

Eldon V. C. Greenberg 

7. Spreading the Bomb without Quite Breaking 

the Rules.................................................................131

Albert Wohlstetter
iv

8. Falling Behind: International Scrutiny of the 

Peaceful Atom ......................................................181

Henry Sokolski 

Part V: The Rights and Benefits of Peaceful Nuclear 

Energy—Articles IV andV..................................211

9. It’s Called Nonproliferation ...............................213

Henry Sokolski and George Perkovich 

10. The Three Qualifications of Article IV’s 

“Inalienable Right” ..............................................219

Robert Zarate 

11. Nuclear Technology Rights and Wrongs: The 

NPT, Article IV, and Nonproliferation .............237

Christopher Ford

12. Economics of New Nuclear Power and Proliferation Risks in a Carbon Constrained World ......385

Jim Harding 

Part VI: Withdrawing From and Enforcing the 

NPT—Article X.....................................................417

13. Locking Down the NPT .......................................419 

Henry Sokolski and Victor Gilinsky

14. Enforcing the NPT and IAEA Compliance........423

Pierre Goldschmidt

About the Contributors .............................................443 
v

FOREWORD

The following volume consists of research that the 

Nonproliferation Policy Education Center (NPEC) 

previously commissioned along with previously published essays. Funding for this project came from the 

Carnegie Corporation of New York and the Ploughshares Foundation. The key project managers of these 

foundations, Stephen Del Rosso, Carl Robichaud, and 

Paul Carroll were generous with their time and their 

support. NPEC’s intern, Kristen Gehringer, did much 

of the initial heavy lifting in preparing the book manuscript; along with NPEC’s project coordinator, Tamara 

Mitchell, NPEC’s research associate, Daniel Arnaudo; 

and the staff of the Strategic Studies Institute (SSI). 

Without their help, and that of Dr. James Pierce, the 

Strategic Studies Institute’s Director of Publications, 

this book would not have been possible. 

HENRY SOKOLSKI

Executive Director

The Nonproliferation

 Policy Education Center
vi
1

PART I

INTRODUCTION AND OVERVIEW
2
3

CHAPTER 1

THE NUCLEAR NONPROLIFERATION 

TREATY’S UNTAPPED POTENTIAL 

TO PREVENT PROLIFERATION

Henry Sokolski

As currently interpreted, it is difficult to see why 

the Nuclear Nonproliferation Treaty (NPT) warrants 

much support as a nonproliferation convention. Most 

foreign ministries, including that of Iran and the United States, insist that Article IV of the NPT recognizes 

all states’ “inalienable right” to develop “peaceful nuclear energy.”1

 This includes money-losing activities, 

such as nuclear fuel reprocessing, which can bring 

countries to the very brink of acquiring nuclear weapons. If the NPT is intended to ensure that states share 

peaceful “benefits” of nuclear energy and prevent the 

spread of nuclear bomb making technologies, it is difficult to see how it can accomplish either if the interpretation above is correct.

Some argue, however, that the NPT clearly proscribes proliferation by requiring international nuclear safeguards against military diversions of fissile 

material. Unfortunately, these procedures, which are 

required of all non-nuclear weapons state members of 

the NPT under Article III, are rickety at best. The International Atomic Energy Agency (IAEA) nuclear inspections, which are intended to detect illicit nuclear 

activities and materials, certainly have a mixed record. 

Not only has the IAEA failed to find existing covert 

reactors and fuel-making plants, which are critical to 

bomb making, the agency still cannot assure the continuity of inspections for spent and fresh reactor fuels 
4

that could be processed into bomb usable materials 

at roughly two-thirds of the sites that it currently inspects. What is easily as worrisome is that even at declared nuclear fuel-making sites, the IAEA routinely 

loses count of many bombs’ worth of production each 

year.

Finally, in the practical world, the NPT hardly 

admits of modification and is far too easy for violating states to withdraw from. Under Article X, treaty 

members are free to leave the NPT with no more than 

3 months notice merely by filing a statement of the 

“extraordinary events [relating to the subject matter 

of the treaty] it regards as having jeopardized its supreme interests.” As North Korea demonstrated with 

its withdrawal from the NPT, these slight requirements are all too easy to meet.

As for amending the treaty, it is nearly impossible. 

Not only must a majority of NPT members ratify any 

proposed amendments, but every member of the IAEA 

government board and every NPT nuclear weapons 

state member must ratify the proposal as well, and 

this is only to get amendments for consideration by 

those states that have not yet ratified the NPT. Ultimately, any state that chooses not to so ratify is free to 

ignore the amendment, and the treaty is functionally 

unamendable. 

For all of these reasons, the NPT is not just seen as 

being weak against violators and difficult to improve, 

but it is seen effectively as a legal instrument that enables nations to acquire nuclear weapons technology. 

Former President George W. Bush highlighted this in 

a February 2004 nuclear nonproliferation speech in 

which he argued that the NPT had created a “loophole” in promoting all aspects of civilian nuclear technology including nuclear fuel making. This allowed 
5

proliferating states to “cynically manipulate” the treaty to develop and acquire nearly all the technology 

and materials they needed to make nuclear weapons. 

President Bush attempted to shore up the NPT by calling on the world’s nonweapons states that have not 

yet developed nuclear fuel making to foreswear such 

activities and to allow more intrusive civilian nuclear 

inspections in exchange for their assured access to nuclear fuel from those states now producing enriched 

uranium. 

Bush’s appeal, however, was hardly successful: 

Australia, Canada, South Africa, Jordan, Iran, and Argentina, among other states, were unwilling to give 

up their “right” to make nuclear fuel. Then, in September 2007, Israel bombed a covert Syrian nuclear reactor that was under construction. This act of violence, 

which followed months of intelligence consultations 

with the United States, was a clear vote of no confidence in the IAEA nuclear inspections system. 

Compounding these setbacks, in 2005 the U.S. Government proceeded to negotiate a civilian nuclear cooperation agreement with India—a nonweapons state 

under the NPT that had already violated its pledges 

not to misuse previous U.S. and Canadian civilian nuclear energy aid and that had tested nuclear weapons 

in 1974 and 1998. Implementation of this agreement 

prompted Pakistan, Israel, and North Korea to call for 

similar treatment. Finally, as early 2010, Washington 

and its allies had still not seriously penalized, much 

less reversed, the nuclear misbehavior of Iran and 

North Korea, two states that the IAEA found to be in 

clear breach of their NPT safeguards obligations.

Each of these developments has undermined the 

NPT’s nonproliferation credibility and led to a chorus 

of pleas from policy analysts for members of the NPT 
6

to take any number of steps to strengthen the treaty. 

Some of these measures would require nonweapons 

states to adopt more intrusive nuclear inspection 

procedures. Others would increase IAEA safeguards 

funding and establish automatic penalties for safeguard agreement violations. 

The most prominent of these proposals, however, 

have to do with implementation of the NPT’s famous 

disarmament Article VI. Under this article, 

Each of the Parties to the 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. 

As to what Article VI might entail, the NPT’s preamble is quite explicit: the NPT member states should 

support a global ban on nuclear testing, cease producing nuclear weapons and their means of delivery, and 

pursue nuclear and general disarmament. 

Nonweapons states point out that none of these 

objectives has yet been met. For all of the reductions 

that have been made in U.S., allied, and Russian nuclear weapons deployments (down from over 75,000 

nuclear weapons to fewer than 10,000), both the United States and Russia, they note, still retain thousands 

of nuclear weapons in storage. Also, the five original 

NPT nuclear weapons states have yet to bring the 

Comprehensive Nuclear Test Ban Treaty (CTBT) into 

force and have yet to reach any agreement to cease 

nuclear weapons production.

When one digs deeper, though, this indictment of 

the NPT weapons states become a bit more complicated. After all, most of the declared nuclear weapons 
7

states have reduced their weapons deployments and 

have announced moratoriums on the further production of uranium or plutonium for weapons purposes 

and on the further testing of nuclear weapons. Also, 

the states most opposed to concluding formal international agreements on nuclear testing and production 

are not the NPT nuclear weapons states, but rather 

states outside of the NPT, such as India, North Korea, 

and Pakistan, or states such as Egypt, which refuses to 

ratify the CTBT until Israel signs the NPT and eliminates its nuclear weapons assets. 

Combine these complications with the ones already 

reviewed and the NPT Review Conference scheduled 

for May 2010, which allows all NPT members to share 

their views on what needs fixing in the treaty’s implementation, and you have the makings for everything 

but consensus. This is so although President Barack 

Obama succeeded in getting the United Nations Security Council (UNSC) to adopt an ambitious resolution 

last fall detailing a number of worthy NPT Review 

Conference goals.

How, then, will the NPT be viewed after the May 

conference is held? One strong possibility is that the 

NPT will become more and more of a diplomatic talking point—a nuclear version of the Biological Weapons 

Convention, a set of agreed international goals rather 

than an international understanding with concrete, 

operational consequences. What this risks is letting 

the NPT become a dead letter like the Kellogg-Briand 

Pact, which vainly tried in 1929 to ban war—i.e., a 

solemn, albeit ineffective legal attempt to prohibit the 

worst of what is certain to occur.

All of this is likely, but only so long as the NPT is 

viewed as it is now—as a set of nuclear bargains at 

war with one another. True, most nuclear nonprolifer-
8

ation experts insist that any reading of the treaty that 

might alter or curtail NPT members’ nuclear rights as 

they are currently viewed is simply a nonstarter. Such 

a view, however, is unnecessarily fatalistic. In fact, the 

NPT is open to interpretation and has already been 

significantly altered as a result. 

Here, the clearest demonstration is the way that 

the NPT’s Article V promise to share the possible benefits of peaceful nuclear explosives has played itself 

out. When this article was first proposed in the 1960s, 

most nations, including the United States and Russia, 

believed that nuclear explosives could be employed 

as “ploughshares” to create canals and to complete 

other civil engineering tasks, including mining and 

excavation. To assure nonweapons states the possible 

benefits of such nuclear applications, the NPT allowed 

nuclear weapons states to share such benefits by supplying nuclear explosive services to nonweapons 

states on a turnkey basis. 

To date, no state, though, has applied for such assistance nor has any state offered it—for two unanticipated reasons. First, the possible benefits of peaceful 

nuclear explosives turned out to be negative: Given 

the costs of cleaning up the radioactive debris that the 

use of peaceful nuclear explosives would produce, it 

became clear that it would be far cheaper to use conventional explosives for any proposed civil engineering applications. In short, it turned out that there were 

no benefits to share.

Second, and closely related, the few states that 

insisted on conducting their own “peaceful nuclear 

test explosions”—India and Russia—were strongly 

suspected of cynically using Article V as a cover for 

nuclear weapons testing. Certainly, the United States 

and most nuclear supplying states sanctioned India 
9

for its 1974 test of a “peaceful” nuclear device by depriving it of access to most controlled civilian nuclear 

supplies. In time, any nuclear explosion, peaceful or 

not, was seen as a violation of an implied norm against 

any form of nuclear testing. 

This example of Article V’s reinterpretation, although not well known or understood, speaks directly 

to several of the NPT’s current difficulties. As already 

noted, the common, current view of an inalienable 

right to peaceful nuclear energy recognized by the 

NPT is that this right automatically allows states to 

participate in any nuclear activity, no matter how uneconomical or dangerous, so long as it has some conceivable civilian application and the materials or activities in question are occasionally inspected by IAEA 

inspectors or their equivalent. This is Japan’s view, 

and that of the Netherlands, Germany, South Africa, 

Brazil, Iran, and also the United States. 

Yet, the recasting of Article V suggests that there 

is another more sensible way to read Article IV. This 

view recognizes the explicit qualifications made in the 

NPT with regard to exercising the inalienable right to 

peaceful nuclear energy. This right, the NPT notes in 

Article IV, must be implemented “in conformity” with 

the treaty’s clear strictures in Articles I and II. These 

two articles, in turn, deny nuclear weapons states 

the right “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,” and the articles ban nonweapons 

states from seeking or receiving “any assistance in the 

manufacture of nuclear weapons.” 

Properly understood, being in conformity with Articles I and II implies also being in conformity with 

Article III, setting forth the NPT requirement that all 
10

nonweapons states accept the imposition of international nuclear safeguards on all of their civilian nuclear activities and materials to prevent their military 

diversion to making bombs. Certainly, a nonweapons 

state refusing such safeguards would be in implicit 

violation of Article II. Thus, the final statement of the 

2000 NPT Review Conference refers to the need for 

nonweapons state members to exercise their Article IV 

activities in conformity with Articles I, II and III. 

Technically, this safeguard condition is not easily met. Not all nuclear activities and materials can in 

fact be safeguarded to prevent their diversion to make 

bombs. Some activities, e.g., nuclear fuel making and 

operating large nuclear programs in hostile, noncooperative states (e.g., North Korea or Iran), cannot be 

inspected in a fashion that can reliably assure detection of a possible military diversion early enough to 

provide sufficient time to intervene to prevent the 

production of a bomb. Similarly, some nuclear materials are so weapons adaptable (e.g., highly enriched 

uranium, separated plutonium, or plutonium based 

fuels) that reliable and timely detection of their diversion to make bombs is simply not possible.

This, then, raises a question: If a nuclear activity or 

material is so close to bomb making that it cannot be 

safeguarded against military diversion, is it protected 

as being “peaceful” under the NPT? In the 1970s, it 

was hoped that nuclear fuel making in Japan, Brazil, 

South Africa, the Netherlands, and Germany could be 

safeguarded. Yet, recent discoveries of nuclear weapons usable materials unaccounted for (MUF) in Japan 

and the United Kingdom (UK) raise serious questions 

as to whether or not these assumptions were ever 

sound. We also know from experience in Iraq, Libya, 

Iran, Syria, and North Korea that the IAEA inspections 
11

system cannot be relied upon to find covert nuclear 

weapon-related activities in states that refuse to cooperate fully with IAEA inspectors.

How, then, should one proceed? Should we continue to allow new states to make nuclear fuel even 

though we now know that these activities cannot be 

effectively safeguarded against military diversion? 

What of states that we have reason to believe may 

cheat, e.g., Egypt, Algeria, Syria, or Saudi Arabia—

states that have all hidden their acquisition of nuclear 

technologies or nuclear capable delivery systems? 

Should we nonetheless allow them to develop large 

nuclear energy programs in the vain hope that IAEA 

safeguards somehow will work?

Many less developed states would answer that the 

NPT’s preamble explicitly stipulates that all of peaceful nuclear energy’s benefits, including “any technological by products which may be derived from the development of nuclear explosives,” should be available 

for civilian purposes to all states. This would suggest 

that the NPT recognizes and protects an intrinsic right 

of all states to get to the very brink of making bombs. 

Yet, if the NPT is dedicated to sharing the benefits 

of peaceful nuclear energy, these benefits presumably 

must be measurably beneficial and be distant enough 

from bomb making or the risk of being easily diverted 

to that purpose such that inspections could reliably 

detect their military conversion in a timely fashion 

(i.e., well before any bombs might be made). At the 

very least, what is protected ought not to be dangerous and clearly unprofitable. That, after all, is why the 

NPT bans the transfer of civilian nuclear explosives, 

why it allowed the sharing of civilian nuclear explosive services only on a turnkey basis, and why ultimately this offer was never acted upon. 
12

By this set of standards, what currently is defended as being “peaceful nuclear energy” and protected 

by the NPT, ought to be questioned. Are nuclear fuel 

making and large nuclear programs economically 

competitive, i.e., “beneficial” in places like the Middle 

East when compared to making power with readily 

available natural gas or buying nuclear fuel from other producers? How economically competitive are such 

programs against safer alternatives in any region? 

Can nuclear fuel making be surveilled anywhere with 

rigor sufficient to reliably detect military diversions 

in a timely fashion? Are not such activities a threat in 

any nonweapons state? Should these activities be allowed to be expanded in nonweapons states and to 

new locales? 

This set of questions, then, brings us back to the 

current prevailing reinterpretation of Article V. If the 

benefits of a nuclear activity are negative as compared 

to nonnuclear alternatives, and if the nuclear activity 

or material is dangerously close to producing a nuclear weapon, is there any reason to believe that it is 

a peaceful benefit protected by the NPT? These questions deserve answers. More important, the answers 

must be allowed to affect how the NPT is read and 

what states view as NPT protected activities. 

The same is true regarding the NPT’s withdrawal 

clause under Article X. The problem with Article X is 

that it has been read to give states like North Korea the 

freedom to violate the treaty and then withdraw with 

little or no adverse consequence. Yet, the Vienna Convention on Treaties points out that states that violate 

an agreement should and can be held accountable for 

their transgressions whether they choose to withdraw 

from the agreement or not. France and the United 

States now insist that this is the appropriate way to 
13

read the NPT. 

Reading Article X this way would mean that violating states inclined to leave the NPT, such as North 

Korea and Iran, would have far greater difficulty doing so with impunity. It is unclear whether this view, 

which the UNSC supported last September with the 

adoption of UNSC Resolution 1887, will prevail. Yet, 

creating as many useful interpretative challenges of 

this sort as possible will be critical if the NPT is to remain effective against further proliferation. 

Certainly, such a goal informs the present volume’s design. Each chapter, dedicated to clarifying 

the NPT’s key ambiguities, is roughly structured to 

trace the NPT’s text article by article. The analysis set 

forth here was mostly written or commissioned by the 

Nonproliferation Policy Education Center. 

Much more, of course, could have been included 

in this book. But rather than seeking to be comprehensive, the aim throughout is to provide a guide for both 

policymakers and security analysts. This guide should 

assist in navigating the most important debates over 

how best to read and implement the NPT and, in the 

process, spotlighting alternative views of the NPT that 

are sound and supportable. 

ENDNOTES - CHAPTER 1

1. NPT, Chapter 2 of this volume, p. 21.
14
15

PART II

THE NUCLEAR NONPROLIFERATION TREATY

AND ITS HISTORY
16
17

CHAPTER 2

THE TREATY ON THE NONPROLIFERATION

OF NUCLEAR WEAPONS

The States concluding this Treaty, hereinafter referred to as the Parties to the Treaty,

Considering the devastation that would be visited 

upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger 

of such a war and to take measures to safeguard the 

security of peoples,

Believing that the proliferation of nuclear weapons 

would seriously enhance the danger of nuclear war,

In conformity with resolutions of the United Nations General Assembly calling for the conclusion of 

an agreement on the prevention of wider dissemination of nuclear weapons,

Undertaking to co-operate in facilitating the application of International Atomic Energy Agency safeguards on peaceful nuclear activities,

Expressing their support for research, development and other efforts to further the application, 

within the framework of the International Atomic 

Energy Agency safeguards system, of the principle of 

safeguarding effectively the flow of source and special 

fissionable materials by use of instruments and other 

techniques at certain strategic points,

Affirming the principle that the benefits of peace-
18

ful applications of nuclear technology, including any 

technological by-products which may be derived 

by nuclear-weapon States from the development of 

nuclear explosive devices, should be available for 

peaceful purposes to all Parties to the Treaty, whether 

nuclear-weapon or non-nuclear-weapon States,

Convinced that, in furtherance of this principle, all 

Parties to 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,

Declaring their intention to achieve at the earliest 

possible date the cessation of the nuclear arms race 

and to undertake effective measures in the direction 

of nuclear disarmament,

Urging the co-operation of all States in the attainment of this objective,

Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapons tests 

in the atmosphere, in outer space and under water in 

its Preamble to seek to achieve the discontinuance of 

all test explosions of nuclear weapons for all time and 

to continue negotiations to this end,

Desiring to further the easing of international tension and the strengthening of trust between States in 

order to facilitate the cessation of the manufacture of 

nuclear weapons, the liquidation of all their existing 

stockpiles, and the elimination from national arsenals 

of nuclear weapons and the means of their delivery 

pursuant to a Treaty on general and complete disarma-
19

ment under strict and effective international control,

Recalling that, in accordance with the Charter of 

the United Nations, States must refrain in their international relations from the threat or use of force 

against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, and that 

the establishment and maintenance of international 

peace and security are to be promoted with the least 

diversion for armaments of the world’s human and 

economic resources,

Have agreed as follows:

ARTICLE I

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.

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 
20

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. 

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.

3. The safeguards required by this Article shall 

be implemented in a manner designed to comply 
21

with Article IV of this Treaty, and to avoid hampering the economic or technological development of the 

Parties or international co-operation in the field of 

peaceful nuclear activities, including the international 

exchange of nuclear material and equipment for the 

processing, use or production of nuclear material for 

peaceful purposes in accordance with the provisions 

of this Article and the principle of safeguarding set 

forth in the Preamble of the Treaty.

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. Negotiation 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-day 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.

ARTICLE IV

1. Nothing in this Treaty shall be interpreted as 

affecting the inalienable right of all the Parties to the 

Treaty to develop research, production and use of 

nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of 

this Treaty.

2. All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest 

possible exchange of equipment, materials and sci-
22

entific 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.

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. Nonnuclear-weapon States Party to the Treaty so desiring 

may also obtain such benefits pursuant to bilateral 

agreements.
23

ARTICLE VI

Each of the Parties to the Treaty undertakes to 

pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at 

an early date and to nuclear disarmament, and on a 

treaty on general and complete disarmament under 

strict and effective international control.

ARTICLE VII

Nothing in this Treaty affects the right of any 

group of States to conclude regional treaties in order 

to assure the total absence of nuclear weapons in their 

respective territories.

ARTICLE VIII

1. Any Party to the Treaty may propose amendments to this Treaty. The text of any proposed amendment shall be submitted to the Depositary Governments which shall circulate it to all Parties to the 

Treaty. Thereupon, if requested to do so by one-third 

or more of the Parties to the Treaty, the Depositary 

Governments shall convene a conference, to which 

they shall invite all the Parties to the Treaty, to consider such an amendment.

2. Any amendment to this Treaty must be approved by a majority of the votes of all the Parties to 

the Treaty, including the votes of all nuclear-weapon 

States Party to the Treaty and all other Parties which, 

on the date the amendment is circulated, are members of the Board of Governors of the International 

Atomic Energy Agency. The amendment shall enter 

into force for each Party that deposits its instrument 
24

of ratification of the amendment upon the deposit of 

such instruments of ratification by a majority of all 

the Parties, including the instruments of ratification 

of all nuclear-weapon States Party to the Treaty and 

all other Parties which, on the date the amendment is 

circulated, are members of the Board of Governors of 

the International Atomic Energy Agency. Thereafter, 

it shall enter into force for any other Party upon the 

deposit of its instrument of ratification of the amendment.

3. Five years after the entry into force of this 

Treaty, a conference of Parties to the Treaty shall be 

held in Geneva, Switzerland, in order to review the 

operation of this Treaty with a view to assuring that 

the purposes of the Preamble and the provisions of 

the Treaty are being realised. At intervals of five years 

thereafter, a majority of the Parties to the Treaty may 

obtain, by submitting a proposal to this effect to the 

Depositary Governments, the convening of further 

conferences with the same objective of reviewing the 

operation of the Treaty.

ARTICLE IX

1. This Treaty shall be open to all States for signature. Any State which does not sign the Treaty before 

its entry into force in accordance with paragraph 3 of 

this Article may accede to it at any time.

2. This Treaty shall be subject to ratification by 

signatory States. Instruments of ratification and instruments of accession shall be deposited with the 

Governments of the United Kingdom of Great Britain 

and Northern Ireland, the Union of Soviet Socialist 

Republics and the United States of America, which 

are hereby designated the Depositary Governments.
25

3. This Treaty shall enter into force after its ratification by the States, the Governments of which 

are designated Depositaries of the Treaty, and forty 

other States signatory to this Treaty and the deposit 

of their instruments of ratification. For the purposes 

of this Treaty, a nuclear-weapon State is one which 

has manufactured and exploded a nuclear weapon or 

other nuclear explosive device prior to 1 January 1967.

4. For States whose instruments of ratification or 

accession are deposited subsequent to the entry into 

force of this Treaty, it shall enter into force on the date 

of the deposit of their instruments of ratification or 

accession.

5. The Depositary Governments shall promptly 

inform all signatory and acceding States of the date of 

each signature, the date of deposit of each instrument 

of ratification or of accession, the date of the entry 

into force of this Treaty, and the date of receipt of any 

requests for convening a conference or other notices.

6. This Treaty shall be registered by the Depositary 

Governments pursuant to Article 102 of the Charter of 

the United Nations.

ARTICLE X

1. Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty 

if it decides that extraordinary events, related to the 

subject matter of this Treaty, have jeopardized the 

supreme interests of its country. It shall give notice of 

such withdrawal to all other Parties to the Treaty and 

to the United Nations Security Council three months 

in advance. Such notice shall include a statement of 

the extraordinary events it regards as having jeopardized its supreme interests.
26

2. Twenty-five years after the entry into force of 

the Treaty, a conference shall be convened to decide 

whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period 

or periods. This decision shall be taken by a majority 

of the Parties to the Treaty.

ARTICLE XI

This Treaty, the English, Russian, French, Spanish 

and Chinese texts of which are equally authentic, shall 

be deposited in the archives of the Depositary Governments. Duly certified copies of this Treaty shall be 

transmitted by the Depositary Governments to the 

Governments of the signatory and acceding States.

IN WITNESS WHEREOF the undersigned, duly 

authorized, have signed this Treaty.

DONE in triplicate, at the cities of London, Moscow and Washington, the first day of July, one thousand nine hundred and sixty-eight.

Entered into force March 5, 1970

In accordance with Article X, paragraph 2, the Review and Extension Conference of the Parties to the 

Treaty on the Non-Proliferation of Nuclear Weapons 

decided that the Treaty should continue in force indefinitely on May 11, 1995.
27

CHAPTER 3

WHAT DOES THE HISTORY

OF THE NUCLEAR NONPROLIFERATION 

TREATY TELL US ABOUT ITS FUTURE?1

Henry Sokolski

When experts discuss the prospects of the Nuclear 

Non-proliferation Treaty (NPT), they naturally focus 

on impending events. Will nonaligned nations tie 

their continued adherence to reaching a comprehensive test ban? Will North Korea, Algeria, Iraq, and Iran 

live up to their NPT obligations? Will NPT’s inspectorate, the International Atomic Energy Agency (IAEA), 

strengthen its inspection procedures?

The answers to these questions—like the future 

itself, however—are necessarily speculative. In contrast, the NPT’s history is known. More importantly, 

it is arguably the most relevant factor in gauging the 

treaty’s chances for future success. To understand the 

NPT’s past, after all, is not only to understand what 

the treaty’s original intentions were but to consider 

how practical and relevant these aims are today and 

how viable they are likely to be.

In general, of course, we already know what the 

NPT is supposed to do: limit the spread of nuclear 

weapons. What we are less clear on, however, is exactly how the NPT is supposed to achieve this end. 

Was the goal of curbing the transfer of nuclear weapons technology to be subordinated to the NPT’s stated 

aim of ending the arms race between Washington and 

Moscow? Did smaller nations, in fact, have a right—as 

the NPT’s Article 10 suggests—to withdraw from the 

treaty if, in their estimation, neither Washington nor 

Moscow had taken effective measures to end the nu-
28

clear arms race or if a neighboring adversary acquired 

nuclear weapons of its own? Did the NPT, in fact, reflect the view that nuclear proliferation was less of an 

evil than either of these two outcomes?

And what of nuclear safeguards? Were nuclear activities and materials that were quite close to bomb 

making or nuclear weapons themselves to be allowed 

if they were claimed to be for peaceful purposes and 

were acquired or transferred under international inspections? Did the drafters of the NPT’s provisions 

for safeguards consciously limit the intrusiveness of 

inspections in order to protect any and all transfers of 

civilian nuclear energy?

Certainly, if the answer to these historical questions is yes, the NPT’s future as an effective nonproliferation agreement would be in doubt. At a minimum, 

it would suggest that the prospects for strengthening 

the International Atomic Energy Agency (IAEA) and 

NPT and for getting near-nuclear or undeclared-nuclear nations to join were distant. 

The NPT’s history, though, is not that clear. It is 

true that the NPT’s framers finally opposed intrusive 

IAEA inspections, encouraged the sharing of peaceful 

nuclear energy, described the greatest proliferation 

threat as being the superpowers’ continued buildup of 

nuclear arms, and even claimed that nations had the 

right to acquire nuclear weapons under extraordinary 

events. Yet, each of these propositions was debated 

and arguably balanced by the NPT’s first two articles prohibiting the transfer or acquisition of nuclear 

weapons “directly or indirectly.” These articles, first 

suggested by the Irish in 1958 as an intermediate step 

toward superpower nuclear arms control, presumed 

that the further spread of nuclear weapons threatened 

accidental and catalytic nuclear war and instability, 
29

both for states with and those without nuclear weapons.

These “Irish” articles are important, then, if only 

because they seem at odds with the NPT’s other provisions. These include language—backed by a substantial negotiating record—that provides for NPT 

members’ rights under Articles 3, 4, and 10 to (1) 

withdraw from the treaty (and, thus, legally acquire 

nuclear weapons), (2) engage in the “fullest possible 

exchange” of nuclear technology, and (3) keep nuclear 

inspections under the NPT from “hampering [NPT 

members’] economic or technological development.”

Critics of the NPT argue that Articles 1 and 2 should 

rule over the interpretation and implementation of the 

rest of the treaty.2

 However, this is neither the way the 

NPT is popularly understood nor the way most of the 

NPT’s framers saw the treaty when they finalized it in 

1968. Then, as now, the predominant nuclear threat in 

the eyes of the treaty’s supporters was not accidental 

or catalytic war, but the possibility that nuclear competition between major nations might get out of hand, 

start a war, or—short of this—encourage nonweapons 

states to go nuclear. As the NPT’s framers saw it, the 

best way to prevent this would be to agree to total 

nuclear disarmament, while mutual nuclear deterrence at very low levels of nuclear armament among 

nations would be second best. Indeed, smaller nations 

might prefer to acquire their own nuclear forces rather 

than allow an ever-escalating and threatening nuclear 

arms race between the major nuclear states go unchallenged or have to depend on unreliable superpower 

guarantees of nuclear security.

From this perspective, asking states without nuclear weapons to forgo acquiring them is asking them 

to forgo exercising a right that could be in their national security interest. As such, forswearing nuclear 
30

weapons required a quid pro quo—i.e., a requirement 

for the superpowers to take effective measures to end 

the nuclear arms race and facilitate the fullest possible transfer of civilian nuclear technology (which the 

nuclear powers gained by developing weapons) from 

the nuclear haves to the nuclear have-nots.

Such deal making, however, is unnecessary if one 

focuses on the security concerns highlighted in the 

Irish’s original United Nations (UN) resolution of 1958. 

Curbing the threat of accidental and catalytic nuclear 

war would be a good that states with and without 

nuclear weapons would benefit from—a good of such 

high value that subordinating all other aspects of the 

NPT to achieve it would be worthwhile.

This, then, is the challenge facing today’s supporters of the NPT. They must recognize that there are 

two different ways to interpret the treaty: through the 

lens of the Irish resolutions (i.e., Articles 1, 2, and—

arguably—3) or through the subsequent articles. For 

the policymaker, making this choice is critical to determining just how viable the NPT is likely to be and 

what, if anything, remains to be done.

To choose wisely requires an understanding of 

what sort of proliferation threat the NPT was originally intended to address; how and why this original 

concern was largely displaced by the new concerns 

noted above; how much of a tension between these 

views remained at the time of the NPT’s signing in 

1968; and which of these views makes more sense today. In short, we must go back to NPT’s origins.
31

1958-65: THE IRISH RESOLUTION AND 

PREVENTING CATALYTIC NUCLEAR WAR AND 

THE FURTHER SPREAD OF NUCLEAR WEAPONS

Although the proliferation of nuclear weapons is 

now synonymous with the spread of know-how, nuclear materials, and specialized equipment to rogue 

states such as Iran, this was not the central worry animating those who first suggested the need for an international nonproliferation agreement in the late l950s. 

Instead, their concern was the actual and proposed 

American transfers of nuclear weapons to Germany 

and the North Atlantic Treaty Organization (NATO).

Starting with the Eisenhower administration in 

1953, the United States began to deploy nuclear artillery in Europe for use by NATO forces under a dual 

key control arrangement. The United States had custody of the nuclear-artillery warheads, while U.S. and 

NATO armies had nuclear-capable artillery tubes integrated into their ground forces. If an occasion arose 

when the U.S. President deemed use of the nuclear 

artillery necessary, he could order the release of the 

nuclear warheads to the NATO commander, and the 

commander of the NATO ally would give authority to 

release use of the nuclear-capable artillery tubes. Following this model, the United States was able to deploy nuclear weapons not only to NATO ground forces, but to U.S. and Allied air forces in Europe without 

losing control of the weapons themselves.

Unfortunately, Warsaw Pact members and the 

world’s neutral powers believed that U.S. authority 

over these weapons was less than complete. In 1956-

57, the Soviet Union was so concerned about the U.S. 

stationing of nuclear weapons in Germany that it proposed a ban on the employment of nuclear weapons of 
32

any sort in Central Europe.3 The United States, meanwhile, submitted a draft disarmament plan before the 

UN Disarmament Commission in which transfer of 

control of U.S. nuclear weapons to NATO allies was 

permitted if their use was necessary to fend off an 

armed attack.4

In 1958 concern with controls over such nuclear 

transfers was heightened further when the U.S. Congress passed an amendment to the U.S. Atomic Energy Act that permitted the transfer of weapons materials, design information, and parts to nations that 

had “made substantial progress in the development of 

nuclear weapons.”5 Also, with the continued transfer 

of nuclear weapons to NATO, U.S. control arrangements became less rigid: one congressional investigation discovered German aircraft that were fueled, 

ready to take off at a moment’s notice, and loaded 

with U.S. nuclear weapons.6

This trend toward laxer U.S. restraints on authority for the transfer of nuclear weapons came at the 

same time as progress toward disarmament negotiations in the UN had reached an impasse. The United 

States and the Soviet Union had agreed to a voluntary 

moratorium on nuclear testing in the fall of 1958, but 

the United States and its allies tied their continued adherence to this test ban to progress toward disarmament and a general easing of tensions. Last, but hardly 

least, the United States had threatened or considered 

using nuclear weapons on at least six separate occasions since Eisenhower had assumed the presidency 

in 1953.7

Against this backdrop, the Irish offered their draft 

resolution concerning the “Further Dissemination of 

Nuclear Weapons” before the First Committee of the 

General Assembly of the UN on October 17, 1958. This 
33

resolution was quite modest, merely addressing the 

possibility that “an increase in the number of states 

possessing nuclear weapons may occur, aggravating international tensions” and making disarmament 

“more difficult.” It went on to recommend that the 

General Assembly establish an ad hoc committee to 

study the dangers inherent in the further dissemination of nuclear weapons.8

The Irish offered to amend the resolution so as to 

urge parties to the UN’s disarmament talks not to furnish nuclear weapons to any other nation while the 

negotiations were under way and to encourage other 

states to refrain from trying to manufacture nuclear 

weapons, but Western support for the amendment 

was thin. On October 31, 1958, the Irish withdrew the 

resolution when it became clear that no NATO nation 

was yet ready to endorse the initiative.9

The Irish, however, pursued the idea. The following year, their foreign minister resubmitted yet another 

version of the resolution to the General Assembly and 

made it clear that the proposal was a minimal proposition which all parties ought to accept. It was “hardly 

realistic,” he argued, to expect any “early agreement 

on the abolition of nuclear weapons.” But “what we 

can do,” he argued, “is to reduce the risks which the 

spread of these weapons involves for this generation, 

and not to hand on to our children a problem even 

more difficult to solve than that with which we are 

now confronted.” Indeed, the Irish foreign minister 

argued that “if no such agreement is made, they [the 

nuclear powers] may well be forced by mutual fear 

and the pressure of their allies, to distribute these 

weapons, and so increase geometrically the danger of 

nuclear war.”10

Why was such nuclear proliferation so dangerous 
34

and likely? First, without an international nonproliferation agreement, “a sort of atomic sauve-qui-peut”—every man for himself—was likely in which states, “despairing of safety through collective action,” would 

seek safety for themselves by getting nuclear weapons 

of their own.11 This trend was likely to get worse, the 

Irish argued, since there was “no conceivable addition” to the list of countries possessing nuclear weapons which would not cause a change in the pattern 

of regional and world politics. Such a change could 

be “great enough to destroy the balance of destructive 

weapons . . . which has given the world the uneasy 

peace of the last few years.”12 As the Irish foreign minister later explained,

the sudden appearance of nuclear weapons and their 

almost instantaneous long-range delivery systems in a 

previous nonnuclear state may be tantamount, in the 

circumstances of the world today, to be pushing a gun 

through a neighbor’s window. . . . It may even be regarded as an act of war by neighboring countries who 

have not the second strike nuclear capacity possessed 

by great nuclear powers [who] may be able to eliminate the threat by taking limited measures.13

The second reason that nuclear proliferation posed 

a great danger was that nations without nuclear weapons would try to acquire them from their nucleararmed allies, who, out of a misguided sense of political convenience, were likely to be cooperative. All this 

would do, however, was give these smaller nations 

“the power to start a nuclear war, or to engage in nuclear blackmail—conceivably against a former ally.” 

In short, without an international agreement against 

further transfers of nuclear weapons, accidental and 

catalytic wars would become more likely, and nations 

would drift into “a nightmare region in which man’s 
35

powers of destruction are constantly increasing and his 

control over these powers is constantly diminishing.”14

The third and final reason was that nuclear weapons technology itself was becoming more available. 

As the Irish foreign minister explained, weaponsusable plutonium was a direct by-product of nuclear 

electrical-power reactors, and these generators were 

being built in states without nuclear weapons. It 

would become increasingly difficult, he believed, for 

the governments of these countries to “resist domestic 

pressure to take the further step of producing nuclear 

weapons [on the] grounds of economy and security, if 

not for considerations of prestige.”15

These considerations were all factored into the 

original bargain inherent in the Irish resolution: The 

states with nuclear weapons would forgo relinquishing control of their weapons to their allies, and states 

without nuclear weapons would refrain from manufacturing or acquiring them and accept inspection of 

their reactors and territories to ensure that they were 

living up to their undertakings. This was the full extent of the bargain. All states—with or without nuclear weapons—would be better off because the possibility of accidental or catalytic war would be reduced. 

Beyond this, nonweapons states would be spared the 

expense of having to develop strategic weapons, and 

the weapons states would have less reason to advance 

the qualitative development of their own strategic 

systems.

The Irish insisted on no direct linkage with progress on capping or reversing the arms rivalry between 

Moscow and Washington. Nor was there any notion 

that the nuclear nations should offer peaceful nuclear technology to the nonweapons states to get them 

to open their territories to inspection. In fact, as the 
36

Irish foreign minister later made clear, nonweapons 

nations ought to welcome having their nuclear facilities inspected or, at least, not object since they might 

later serve as arms control test beds. Nor, he argued, 

should the inequity of nonweapons states opening 

their nuclear facilities to inspections (from which nuclear states would be exempt) be seen as involving any 

loss of prestige. After all, several nonweapons states 

had already endorsed the idea of regional disarmament and European nuclear-weapons-free zones that 

required asymmetrical inspections. Nonproliferation 

inspections were only an extension of the same idea.16

The United States and other states with nuclear 

weapons, however, initially had misgivings about 

the Irish resolutions. As has already been noted, most 

NATO nations abstained when the Irish resolution 

was first put to a vote in 1958. In 1959, though, the Soviet Union also opposed the resolution, complaining 

that it was too permissive: it would allow the United 

States to transfer nuclear weapons to European soil 

so long as the United States retained control of the 

weapons. Meanwhile, France abstained, arguing that 

the transfer of fissionable materials and nuclear weapons was difficult to control, and that the real problem 

was ending manufacture of these items. At the time, 

France was itself getting ready to test its first nuclear 

weapon and was assisting the Israelis in their nuclear 

weapons efforts.17

As for the United States, it supported the 1959 

Irish resolution after abstaining in 1958, arguing that 

it permitted serious study of critical issues. Yet, when 

the resolution was modified in 1960 to call upon the 

weapons states to declare at once their intention to 

“refrain from relinquishing control of such weapons 

to any nation not possessing them and from transmit-
37

ting to it the information necessary for their manufacture,” the United States again objected.18 Although the 

Soviets decided to reverse themselves and support the 

draft, the United States at the time was pushing the 

idea of giving NATO nuclear armed submarines for a 

multilateral force (MLF). Mindful of that idea, the U.S. 

representative to the UN complained that the Irish 

resolution failed to recognize the critical responsibility of the nations with nuclear weapons. The U.S. representative went on to ask how the Irish could expect 

other nations to forgo nuclear weapons if the weapons 

states refused to end their own nuclear buildup. Besides, he argued, a commitment of indefinite duration 

of the sort the resolution called for was unverifiable.19

The United States objected again in 1961 when the 

Swedes resubmitted a similar resolution recommending that an inquiry be made into the conditions under which countries not possessing nuclear weapons 

might be willing to enter into specific undertakings 

to refrain from manufacturing or otherwise acquiring 

such weapons and to refuse to receive, in the future, 

nuclear weapons on their territories on behalf of any 

other country.20

The resolution’s new language worried the United 

States. The resolution was no longer focused on restraining weapons nations from relinquishing control 

of nuclear weapons but on getting nonweapons nations to refuse receiving nuclear weapons on their territories. In short, it appealed to all of NATO to stop 

hosting U.S. nuclear weapons. This point was hardly 

lost on the Soviets, who immediately incorporated 

the Swedish language (i.e., “refrain from transferring 

control [and] refuse to admit the nuclear weapons of 

any other states into their territories”) into their own 

draft treaty for general and complete disarmament in 
38

1962.21

The United States objected to the Swedish resolution, complaining that it effectively called “into question the right of free nations to join together in collective self-defense, including the right of self-defense 

with nuclear weapons if need be.”22 Yet, the U.S. representative was equally insistent that the United States 

supported the goal of nonproliferation. His proof was 

that the U.S. draft program for general and complete 

disarmament—like the Irish resolution—required 

states with nuclear weapons to “refrain from relinquishing control” of nuclear weapons to nonweapons 

states.23

1965–68: BARGAINING TO KEEP STATES 

FROM EXERCISING THEIR RIGHT TO 

ACQUIRE NUCLEAR WEAPONS

For the next 4 years, the United States continued 

to insist that it was interested in promoting nuclear 

nonproliferation.24 However, it opposed a variety of 

nonproliferation resolutions backed by the Soviets, 

Swedes, and others, which, if accepted, would have 

jeopardized existing nuclear-sharing arrangements 

with NATO or the possibility of creating a multilateral nuclear force for a “United States of Europe.” 

Ultimately, the United States focused on reaching an 

international nuclear nonproliferation agreement only 

when it became clear that Germany and other NATO 

nations were not keen on reaching an MLF agreement. 

With the MLF disposed of and the Soviets willing to 

accept language that would allow the United States 

to deploy nuclear weapons in NATO—assuming they 

were kept under U.S. control—the United States was 

ready to negotiate a nonproliferation agreement.25
39

By early 1966, however, the terms of UN debate 

over proliferation had changed. Whereas in 1958, 

nonproliferation was seen as a good in itself—equally 

beneficial to states with and without weapons—by the 

early 1960s, smaller nations perceived nuclear nonproliferation as a potential obstacle to assuring their 

national security, while the United States and Soviet 

Union continued to refine and expand their own nuclear arsenals.

Another key difference in the debate was how nations viewed superpower nuclear deterrence. In 1959 

the Irish downplayed the threat presented by nuclear 

superpower rivalry: “That situation, fraught with 

danger as it is, is nonetheless one with which we have 

managed to live for a number of years. Techniques 

have been evolved to deal with it.” The key concern 

was not with this set of dangers but with those “likely to 

flow with the wider dissemination of nuclear weapons.”26

By the mid-1960s, however, faith in the stability of 

the superpower nuclear balance and concerns about 

the threat of accidental and catalytic war had begun 

to wane. In their place, worries about the superpower 

arms races and the threat of the superpowers’ nuclear 

imperialism over nonnuclear nations gained traction. 

As India’s UN representative explained in 1966,

[the] dangers of dissemination and independent 

manufacture [of nuclear weapons] pale into the background when one views the calamitous dangers of 

the arms race which is developing today as a result 

of the proliferation of nuclear weapons by the nuclear weapon powers themselves, large and small. For 

many years now, the super powers have possessed 

an over-kill or multiple-destruction capacity and even 

their second-strike capabilities are sufficient to destroy 

the entire world. They have hundreds of missiles of 

varying ranges which are capable of devastating the 
40

surface of the earth. They are continuing to test underground, miniaturizing warheads, improving penetration capabilities and sophisticating their weapons 

and missiles. The other nuclear weapons powers are 

also following the same menacing path, conducting 

atmospheric weapons tests, proceeding from mannedbomber delivery systems to missile systems and 

submarines. Only 4 days ago, the People’s Republic 

of China conducted yet another weapons test, firing 

an intermediate-range guided missile with a nuclear 

warhead. When we talk of the dangers of the arms 

race, therefore, we face the dangers of the most titanic 

proportions. It is here that the proliferation of nuclear 

weapons has its most catastrophic consequences.27

Egypt’s representative to the UN disarmament talks 

made the same point somewhat differently:

The nonnuclear countries will in law renounce their 

right to nuclear weapons, but nuclear stockpiles and 

the threat of a nuclear confrontation will in fact continue to exist indefinitely. . . . This de facto situation 

could always constitute an incitement to manufacture 

or acquire nuclear weapons. To diminish this risk still 

further it will be necessary, pending the complete 

elimination by radical measures of nuclear stockpiles 

and the nuclear threat, to include in the treaty a formal 

and definite indication of what the nuclear Powers 

propose to do with the existing nuclear armament.28

Why did this shift occur? First, nonnuclear nations 

who were eager for a nonproliferation treaty in the 

very early 1960s but frustrated by the impasse created 

by the Soviet Union, the United States, and NATO nations over the issue decided to work without the superpowers’ cooperation. As has already been noted, 

in 1961 the Swedes submitted a resolution before the 

UN General Assembly calling for an inquiry as to the 

conditions under which nonweapons states might be 
41

willing to refrain from acquiring nuclear weapons. 

The idea here was to force the nuclear states’ hand 

by demonstrating the popularity of nuclear nonproliferation and threatening to promote it without the 

superpowers. However, the very premise of the inquiry—that nonweapons nations would naturally acquire nuclear weapons unless certain conditions were 

met—was at odds with the idea that nonproliferation 

was equally a security imperative for both weapons 

and nonweapons states.

Second, beginning in the late 1950s, an intellectual 

shift occurred in the way nuclear arms and deterrence were viewed. During this period, a new nuclear 

theory—finite deterrence—emerged. According to 

this view, smaller nations could keep larger nuclear 

powers from threatening them militarily by acquiring 

a small number of nuclear weapons of their own. With 

their limited nuclear arsenal, the smaller nations might 

not be able to prevail in war against a larger power 

but could effectively “tear an arm off” by targeting the 

larger nation’s key cities, and thus deter such nations 

from ever attacking.29 Closely related to this point was 

a critique of the superpowers’ constant quantitative 

and qualitative improvement of their strategic forces. 

This buildup was considered unnecessary and provocative because a nation needed only a small nuclear 

arsenal to threaten to knock out an opponent’s major 

cities.30

In 1962, this view was reflected in replies to the UN 

secretary-general’s inquiry about the conditions under 

which nonweapons states “might be willing to enter 

into specific undertakings to refrain” from acquiring 

weapons.31 Sixty-two nations replied, most of them 

wanting specific neighbors or all the states within 

their region to foreswear acquiring nuclear weapons 
42

as a condition for their doing likewise. Other nations, 

such as Italy, wanted the nuclear powers to halt their 

nuclear buildup.32 Meanwhile, the three nuclear powers that answered the inquiry indicated that general 

and complete disarmament was the best solution.33

For the next 2 years, the debate over the merits of 

establishing a European MLF made it impossible for 

the Soviet Union, the United States, and most NATO 

nations to reach any agreement over nuclear nonproliferation.34 At the very least, no progress in nonproliferation seemed likely until moves toward disarmament 

made progress. The world’s nonaligned nonweapons 

states, on the other hand, were eager to secure a separate nonproliferation treaty and called on the UN to 

convene an international conference to negotiate such 

an agreement.35 In June 1965, India and Sweden suggested a new approach to the UN Disarmament Commission: a nonproliferation agreement combined with 

measures that would begin to cap the arms race between the superpowers. Italy also suggested imposing 

a time limit on the nonnuclear nations’ agreement to 

refrain from acquiring nuclear weapons. Advocates of 

this limit—a threat of coercive leverage—argued that 

it would serve as an inducement to the superpowers 

to disarm. With support from the world’s nonaligned 

nations, the resolution passed overwhelmingly.36

From this point on, the debate over reaching a 

nuclear nonproliferation agreement presumed that 

nonweapons nations had a right to acquire nuclear 

weapons, and that the only question was what they 

should get in exchange for not exercising it. Each nation expressed this right in a different fashion. For 

China, it was essential that nonnuclear nations not be 

“deprived of their freedom to develop nuclear weapons to resist US-Soviet nuclear threats.”37
43

For Brazil, the prerogative of nonnuclear nations 

to go nuclear was nothing less than their right to selfdefense. As Brazil’s representative explained,

if a country renounces the procurement or production by its own national means of effective deterrents 

against nuclear attack or the threat thereof, it must be 

assured that renunciation—a step taken because of 

higher considerations of the interests of mankind—

will not entail irreparable danger to its own people. 

The public could never be made to understand why a 

government, in forswearing its defense capability, had 

not at the same time provided reasonable and lasting 

assurances that the nation would not be, directly or 

indirectly, the object of total destruction or of nuclear 

blackmail.38

For Brazilians, this meant that any nuclear nonproliferation agreement had to include guarantees that 

states with nuclear weapons would not use or threaten to use them against states without such weapons.

Other states, however, thought that nothing less 

than nuclear disarmament was necessary. Tunisia, like 

Brazil, was “not happy about renouncing [its] right to 

acquire nuclear weapons” but thought that it was too 

poor ever to try to acquire them and thus could be truly secure only in a disarmed world.39 Sweden, which 

was still developing a nuclear weapons option of its 

own,40 shared Tunisia’s views but saw giving up “the 

most powerful weaponry that has ever been produced 

by man” as something it—as one of the “smaller and 

more defenseless nations”—could do only if the superpowers disarmed.41

India, which was also developing a nuclear weapons option,42 was the most outspoken in defending its 

right to unrestricted development of nuclear energy. 

This stance, in part, was simply a reflection of India’s 
44

established opposition to international safeguards, 

which—it had argued since the early 1950s—would 

interfere with its economy’s development and its “inalienable right [to] produce and hold the fissionable 

material required for [its] peaceful power programs.”43

After China exploded its first nuclear device in May 

1964, though, protecting this right became even more 

imperative. As the Indian minister of external affairs 

explained in 1967,

most of the countries represented at the disarmament 

committee appreciated India’s peculiar position with 

regard to the nonproliferation treaty. . . . China would 

be a nuclear state which would not be called upon to 

undertake any obligations. India could have become a 

nuclear country if it had exploded the bomb as China 

did. But because India had shown restraint, a desire 

for peace, and opposition to the spread of nuclear 

armaments, under this treaty it would find itself in 

a much worse position than China. . . . The result of 

our restraint is that we are a nonnuclear power which 

will have to suffer all the disadvantages. On the other 

hand, China, which has shown no restraint, will not 

suffer from any disadvantage even if it signs the treaty, as it is already a nuclear power.44

What were the Indians talking about? The minister of external affairs left little doubt that they were 

referring to every nuclear advantage the weapons nations enjoyed—including nuclear testing. After all, he 

noted, the draft nonproliferation treaty would “seriously hamper and impede” peaceful nuclear research 

since it would prevent nonnuclear countries from 

undertaking underground explosions for the purpose 

of carrying out nuclear research while imposing no 

such obligation on states with nuclear weapons.45 The 

ability to produce weapons-usable materials free from 

intrusive and discriminatory international safeguards 
45

and the freedom to develop all aspects of nuclear energy—including nuclear explosives, the minister continued—was critical to secure India’s “sovereign right 

of unrestricted development” of nuclear energy.46

If it were just India making these arguments, they 

might be dismissed as being peculiar to a nation “exposed to nuclear blackmail.”47 Yet, Brazil’s representative shared India’s views, arguing that:

nuclear energy plays a decisive role in [the] mobilization of resources. We must develop and utilize it in every form, including the explosives that make possible 

not only great civil engineering projects but also an 

ever-increasing variety of applications that may prove 

essential to speed up the progress of our peoples. To 

accept the self-limitation requested from us in order 

to secure the monopoly of the present nuclear-weapon powers would amount to renouncing in advance 

boundless prospects in the field of peaceful activities.48

At the time, Brazil was developing a nuclear weapons 

option of its own.49

It would be wrong, however, to dismiss Brazil’s and 

India’s interest in peaceful nuclear explosives (PNE) 

and sensitive nuclear activities as a cynical move. The 

United States, after all, had been touting the possible 

advantages of PNEs since the early 1960s as the reason 

for its opposition to reaching a comprehensive nuclear 

test ban with the Soviets. The United States also was 

enthusiastic about the need to develop fast-breeder reactors that would use reprocessed plutonium fuels.50

Thus, Nigeria, Mexico, and Ethiopia, which had no 

nuclear programs, were every bit as insistent as India and Brazil that any treaty on nonproliferation not 

place them “in a position of perpetual inferiority in 

any field of knowledge.”51 Nigeria’s recommendation 

to solve this problem was
46

that non-nuclear weapons powers would not only 

have nuclear explosives, through an international organization, for their peaceful projects but also have 

opportunities for their scientists to develop to the full 

their intellectual capabilities in all fields, including 

that of nuclear-explosive technology.52

These nations were just as adamant that whatever 

international safeguards the NPT required not interfere with their development of new power reactors 

and fuels. In this, they were joined by Japan and Germany, who feared that the United States and Soviet 

Union would use the NPT’s safeguard provisions to 

steal industrial nuclear secrets from their civil nuclear 

programs. As Germany’s foreign minister explained 

in 1967,

The unhindered civilian utilization of the atom is a vital interest of the Federal Republic. . . . It is known that 

German scientists are working with the prospect of 

success on the development of the second generation 

of reactors, the so-called fast breeders. . . . We go on 

the assumption that the placing into effect of controls 

does not interfere with the economic operations of factories, does not lead to the loss of production secrets, 

but counters the dangers of misuse. For this purpose it 

is adequate to control the end-product points, and to 

have a control which possibly could be exercised by 

automated instruments.53

Germany’s foreign minister argued that nations like 

his own were already apprehensive of states with 

nuclear weapons trying to monopolize the civilian nuclear field by dint of their commanding lead in military nuclear technology.54 At least as great a worry, he 

argued, was the extent to which inspections under the 

proposed NPT might compromise the pace and com-
47

mercial confidentiality of civil nuclear developments 

by nonweapons states.

In the end, the NPT‘s preamble and Article 3 stipulated that nations like Germany could meet their safeguards obligations through somewhat less threatening 

but equivalent procedures under Western Europe’s 

nuclear safeguarding organization, EURATOM, that 

inspections would be restricted to monitoring the 

flows of source and fissionable materials at “certain 

strategic points,” and that they would be designed “to 

avoid hampering the economic or technological development of the Parties.”

The NPT also emphasized in Articles 4 and 5 that 

nothing in the treaty should 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.” 

Indeed, the treaty called on all parties to “undertake 

to facilitate [the] fullest possible exchange of equipment, materials and technological information for the 

peaceful uses of nuclear energy.” The treaty established procedures for sharing the benefits of peaceful 

nuclear explosives, although it prohibited the direct 

transfer of explosive devices to or development by 

nonweapons states.

Finally, in Article 6 the treaty called on the weapons 

states to “pursue negotiations in good faith on effective measures relating to the cessation of the nuclear 

arms race at an early date and to nuclear disarmament.” Even the Italians’ suggestion to leverage the 

superpower nuclear reductions (i.e., 6 months before 

the end of a fixed period, nations could give notice of 

their intent to withdraw from the treaty) was retained 

after a fashion in Article 10. The 6-month option was 

rejected along with Nigerian demands that the NPT 
48

explicitly empower members to withdraw if the treaty’s disarmament aims were “being frustrated.”55 But 

it was agreed that the treaty would not be of indefinite duration. Instead, it would last 25 years and be 

reviewed as to whether or not it should be extended 

and, if so, how. As the Swiss noted, it was “preferable” that the treaty be “concluded for a definite period” so as to avoid “tying” the hands of non-weapons 

states who could not be expected to wait indefinitely 

on the weapons states to disarm.56 Thus, any party to 

the treaty, under Article 10, retained the right to withdraw if it “decides that extraordinary events, related 

to the subject matter of this treaty, have jeopardized 

the supreme interests of its country.”57

WHICH PAST AS PROLOGUE?

Reading the NPT today, one can easily forget that 

the original bargain of the Irish resolutions of the 

late 1950s and early 1960s is present in the final version of NPT. Indeed, Articles 1 and 2, which prohibit 

the direct or indirect transfer and receipt of nuclear 

weapons, nuclear explosives, or control over such 

devices, read very much like the original Irish resolutions themselves. In Article 3, the treaty also calls on 

parties to accept and negotiate a system of safeguards 

that would prevent “diversion of nuclear energy from 

peaceful uses to nuclear weapons or other nuclear explosive devices.” Finally, the treaty makes it clear in 

Article 4 that parties to the NPT could exercise their 

right to develop peaceful nuclear energy only “in conformity with Articles I and II.”

Nor did the NPT’s framers abandon their original 

concerns about the threat of catalytic or accidental nuclear war. The Germans in 1967, for example, defend-
49

ed the NPT aims “because it is frightening to think 

what would happen if possession of nuclear weapons 

were spread chaotically through the world, if some 

adventurous state were one day irresponsibly to use 

such a weapon.” Echoing this view, Germany’s foreign minister argued that “even only one additional 

nuclear power would start a chain reaction that would 

be hard to control.”58 The Canadians made essentially the same point, arguing that some discrimination 

against nonweapons states was “the only alternative 

to allowing the continued spread of nuclear weapons 

. . . and such a process in the end would have no other 

result than nuclear war . . . on the greatest scale.”59

The British representative to the General Assembly 

was just as emphatic:

We are concerned not only that new possessors of nuclear weapons may employ them against each other, 

or against a non-nuclear state; we see an even greater 

danger in the possibility that the use of nuclear weapons by a third country could precipitate a war which 

would end in a nuclear exchange between the two socalled Superpowers. In our view, and I would think 

in that of the Soviet Union as well, each additional 

nuclear power increases the possibility of nuclear war, 

by design, by miscalculation, or even by accident.60

Arrayed against these concerns, however, was the 

view expressed by the Indian delegation that:

further proliferation is only the consequence of past 

and present proliferation and that unless we halt the 

actual and current proliferation of nuclear weapons, it 

will not be possible to deal effectively with the problematic danger of further proliferation among additional countries.61

This alternative view, along with the idea that non-
50

nuclear nations had inalienable rights to develop civilian nuclear energy and to withdraw from the NPT 

(and thus acquire nuclear weapons legally) if the superpowers did not disarm (or their security interests 

were at serious risk), became the NPT consensus view 

and was captured in Articles 4, 5, 6, and 10 as well as 

most of the NPT’s preamble. 

Articles 1 and 2, in contrast, reflected the original 

bargain of the Irish resolutions, which were concerned 

about the threat of accidental and catalytic nuclear 

war, whereas the NPT’s other articles (with the possible exception of Article 3) generally reflected the finite deterrence theorizing of the time. 

The problem is that these two views, both propounded in the NPT, are at odds. Certainly, it is difficult to argue that the further spread of even small 

numbers of nuclear weapons to other nations will 

significantly increase the risk of accidental or catalytic 

nuclear war, while at the same time recommending 

that nonweapons states limit the nuclear arsenals of 

weapons states by threatening to acquire such weapons themselves. Yet, this is precisely the tension present in the negotiations leading up to the NPT and reflected in the treaty’s text (i.e., Articles 1, 2, 6, and 10).

More important, this tension continues to be reflected in the debate over what constitutes “peaceful” 

nuclear development under Article 4 in conformity 

with Articles 1 and 2. Nations that subscribed to the 

notion that the superpower arms race was a key cause 

of horizontal proliferation believed that nonweapons 

states deserved access to any and all civilian nuclear 

energy transfers to compensate them for their restraint 

and to assure them equal access to technology that the 

states with nuclear weapons already had.

For most of these nations, any civilian nuclear 
51

transfer made under safeguards was automatically 

“in conformity with Articles I and II.” Indeed, for 

the Dutch, Belgians, and Luxembourgians—and, at 

times, even the Americans—the line between safeguarded and unsafeguarded activities under the NPT 

was, as one nonproliferation expert recently noted, 

“quite bright.”62 In May 1968, the representative of 

the Netherlands government, for example, urged the 

superpowers to live up to their disarmament obligations under Article 6, explaining that the obligation of 

nonweapons states to forgo the acquisition of nuclear 

weapons should “in no way” restrict their access to 

civil nuclear technology:

My delegation interprets Article I of the draft treaty to 

mean that assistance by supplying knowledge, materials and equipment cannot be denied to a non-nuclearweapon State until it is clearly established that such 

assistance will be used for the manufacture of nuclear 

weapons or other nuclear devices. In other words, in 

all cases where the recipient parties to the treaty have 

conformed with the provisions of Article III, there 

should be a clear presumption that the assistance rendered will not be used for the manufacture of nuclear 

weapons and other explosive devices.63

The Americans were just as insistent that “peaceful applications of energy derived from controlled and 

sustained nuclear reactions—that is, reactions stopping far short of explosion, [had] nothing to do with 

nuclear weapons” and, thus, development of such applications would not be affected by the NPT’s prohibitions.64

Yet, other evidence indicates that the NPT’s framers felt uncomfortable about obligating the nuclear 

powers to provide any and all forms of nuclear-energy technology or materials, save nuclear explosives 
52

themselves. In the final debates over the NPT, Spanish 

and Mexican attempts to create a duty on the part of 

the nuclear haves to provide nuclear-energy aid to the 

nuclear have-nots and to reference “the entire technology of reactors and fuels” in the NPT’s text, were 

rejected.65 This rejection, it has been argued, suggests 

that the NPT’s framers understood that some forms 

of civil nuclear energy (e.g., weapons-usable nuclear 

fuels and their related production facilities) were so 

close to bomb making that sharing them might not be 

in “conformity” with Articles 1 and 2.

More important, safeguarding such dangerous activities and materials was probably impossible. Certainly, if inspections lived up to Article 3’s requirement to “avoid hampering” nations’ “technological 

development” and remained heedful of the NPT‘s 

concern—registered in its preamble—for focusing on 

the “flow” of source and special fissionable materials 

at “certain strategic points,” they would have difficulty accounting for significant quantities of weapons-usable materials at enrichment and reprocessing 

facilities, at reactors that used weapons-usable fuels, 

and at their respective fuel-fabrication plants. Nor 

would timely warning of diversions be likely. Such 

“safeguarding,” as we see above would only mask the 

probable transfer or acquisition of nuclear weapons 

and thus violate the NPT’s prohibitions in Articles 1 

and 2 and Article 3’s stricture that safeguards serve 

the purpose of verifying member nations’ fulfillment 

of their NPT obligations.66

It would be reassuring if the NPT’s negotiating record could settle such disputes. Unfortunately, it only 

raises them. Indeed, tension between the first three 

articles and those that follow in the NPT still exists today. Unaligned nations such as Indonesia and Mexico 
53

still argue that weapons states must go much further 

in reducing their nuclear arsenals and in sharing the 

benefits of peaceful nuclear energy to keep nonweapons states from abandoning the NPT. And the issue 

of just what constitutes effective safeguards under 

the treaty for problematic nations such as North Korea, Libya, Iran, Algeria, and Iraq, and for dangerous 

nuclear activities such as reprocessing in Japan, is as 

much a concern as ever.

A number of things, however, have changed since 

1968. With the demise of the Soviet Union, the former 

rivalry is now largely muted. Rather than an ever-escalating nuclear arms race, the United States and former Soviet republics are cooperating in reducing the 

number of nuclear weapons.

As for the promised benefits of peaceful nuclear 

power, these too seem less compelling. Certainly, 

few—if any—nations now believe that PNEs promise 

any economic benefits. The United States, India, and 

Russia—the only nations to experiment with such 

devices—no longer use them, and even Brazil and 

Argentina, who initially rejected the NPT because it 

would not allow them to acquire such devices, have 

renounced their development. Economically viable 

nuclear electricity, meanwhile, has been limited to 

uranium-fueled thermal reactors operating only in the 

most advanced economies of North America, Europe, 

and East Asia. The economical use of weapons-usable 

plutonium or mixed-oxide fuels in thermal or fast reactors is, at best, still many decades away.67

Meanwhile, the security dangers of certain types 

of civilian nuclear power and of reactor development 

in some regions have become all too apparent. Iraq, 

Iran, North Korea, and Algeria all have nuclear energy programs that are monitored by the IAEA. Yet, all 
54

harbor a desire to develop nuclear weapons and have 

attempted to evade IAEA inspections and proper import procedures. It is unclear whether even special 

IAEA inspections could provide sufficient warning 

of dangerous activities in these politically turbulent 

nations.68 IAEA monitoring of plutonium fabrication 

and reprocessing activities in such stable nations as Japan has also been criticized as dangerously deficient. 

In fact, the quantity of weapons-usable materials produced by such plants threatens to exceed the amount 

of fissile material present in the arsenals of weapon 

states.69

Finally, there is a newfound awareness that finite 

deterrence—based on a circumscribed though nonetheless painful response as opposed to all-out nuclear 

retaliation—and the supposed stability that might 

come from threatening to attack a few of an opponent’s cities, are nowhere near as sound as once supposed—either in theory or practice. The release of new 

information on the Cold War suggests that nuclear deterrence even between the superpowers was anything 

but automatic or guaranteed. Indeed, a nuclear incident in Cuba and/or possible war over intermediaterange nuclear force (INF) deployments in Europe was 

far more likely than many people imagined.70

Nor has finite deterrence proved to be as cheap or 

easy as originally promised. In the case of the French—

the original innovators of finite deterrence—developing and maintaining a force de frappe have required 

spending billions of dollars annually to field several 

generations of strategic forces that have never seemed 

quite credible (or survivable enough) to other members of NATO—even against a limited Soviet attack. 

Smaller nations aiming to deter their weapons-state 

neighbors or nuclear-imminent neighbors are likely to 
55

face similar challenges that proportionally will be at 

least as stressful.

These developments, of course, do not change the 

NPT’s negotiating history. But they do suggest the 

relative risks of emphasizing the NPT framers’ concerns of the late 1960s over those they originally had 

in 1958. More important, by focusing on the NPT’s 

original concerns, we are more likely to correct for 

its current deficiencies, which are themselves rooted 

in views that were all too popular at the time of its 

signing. Indeed, how well we focus on these concerns 

today will determine what worth the NPT will have in 

the decade ahead. 

ENDNOTES – CHAPTER 3

1. Previously published in Henry Sokolski, ed., Fighting Proliferation: New Concerns for the Nineties, Maxwell Air Force Base, 

AL: Air University Press, 1996, pp. 3-29. 

2. See, for example, Frank Barnaby and Shaun Burnie, The 

Nonproliferation Treaty: A Critical Assessment, Amsterdam, the 

Netherlands: Greenpeace International, January 17, 1994.

3. See “Soviet Proposal Introduced in the Disarmament Subcommittee: Reduction of Armaments and Armed Forces and the 

Prohibition of Atomic and Hydrogen Weapons, May 18, 1957,” 

U.S. Department of State, Documents on Disarmament, 1945–1959, 

Washington, DC: U.S. Government Printing Office, 1960, pp. 

756–57.

4. Ibid. See “Western Working Paper Submitted to the Disarmament Subcommittee: Proposals for Partial Measures of Disarmament, August 29, 1957,” Documents on Disarmament, 1945–

1959, p. 870.

5. The Atomic Energy Act of 1954, U.S. Code secs. 54, 64, 82, 

91(c), 92, as amended, 1954.
56

6. See George Bunn, Arms Control by Committee: Managing 

Negotiations with the Russians, Stanford, CA.: Stanford University 

Press, 1992, p. 62.

7. The Eisenhower administration had threatened to use or 

considered using nuclear weapons to end the Korean War in 

1953, to save the French in Vietnam in 1954, to save the Republic 

of China in 1954, 1955, and 1958, and to prevent any invasion of 

Kuwait in 1958. Atomic howitzers also were deployed by U.S. 

forces landing in Lebanon in 1958. The Russians, meanwhile, 

threatened the use of nuclear weapons to end the Suez crisis in 

1956. See Peter Lyon, Eisenhower: Portrait of the Hero, Boston: Little, Brown and Company, 1969, pp. 534, 541, 583, 606, 610, 624, 

639–40, 719, 775–76, 784.

8. The resolution initially passed with 37 affirmative votes, 

but 44 nations—including the United States, UK, Italy, Japan, 

France, Greece, Belgium, Turkey, and the Netherlands—abstained. See “Irish Draft Resolution Introduced in the First Committee of the General Assembly: Further Dissemination of Nuclear Weapons, October 17, 1958,” in Documents on Disarmament, 

1945–1959, pp. 1185–1186.

9. Ibid.

10. Ibid., pp. 1474–1478. See “Address by the Irish Foreign 

Minister [Aiken] to the General Assembly, September 23, 1959 

[extract],” 

11. Ibid.

12. Ibid., pp. 1520–1526. See “Statement by the Irish Foreign 

Minister [Aiken] to the First Committee of the General Assembly, 

November 13, 1959.”

13. See “Statement of Irish Foreign Minister [Aiken] to the 

First Committee of the General Assembly, November 6, 1962,” 

U.S. Arms Control and Disarmament Agency, Documents on Disarmament, 1962, Washington, DC: U.S. Government Printing Office, 1963, pp. 1025–1028.

14. See “Statement by the Irish Foreign Minister, November 
57

13, 1959,” Documents on Disarmament, 1945–1959, pp. 1520–1526. 

In this speech, Foreign Minister Aiken attributes these views to 

Howard Simons, “World-Wide Capabilities for Production and 

Control of Nuclear Weapons,” Daedalus, Vol. 88, No. 3, Summer 

1959, pp. 385–409, which was a summary of “The Nth Country 

Problem: A World-Wide Survey of Nuclear Weapons Capabilities,” a study by the American Academy of Arts and Sciences, 

which would be published by the National Planning Association 

in 1959.

15. “Statement by the Irish Foreign Minister, November 13, 

1959,” in Documents on Disarmament, 1945–1959, pp. 1520–1526.

16. See “Statement of Irish Foreign Minister . . . November 6, 

1962,” in Documents on Disarmament, 1962, pp. 1025–1028.

17. See Lawrence Scheinman, Atomic Energy Policy in France 

under the Fourth Republic, Princeton, NJ: Princeton University 

Press, 1965, pp. 183ff.; and Avner Cohen, “Stumbling into Opacity: The United States, Israel, and the Atom, 1960–63,” Security 

Studies, Vol. 4, No. 2, Winter 1994, pp. 199–200.

18. See United Nations Department of Political and Security 

Council Affairs, The United Nations and Disarmament, 1945–1970, 

New York: United Nations Publications, 1971, pp. 260–261.

19. Ibid.

20. Ibid., pp. 265. The Swedes submitted this resolution, 1664 

(16), December 4, 1961. 

21. Ibid.

22. See “Statement by the United States Representative [Yost] 

to the First Committee of the General Assembly: Spread of Nuclear Weapons, November 30, 1961,” in US Arms Control and 

Disarmament Agency, Documents on Disarmament, 1961, Washington, DC: U.S. Government Printing Office, 1962, pp. 691–692.

23. Ibid.

24. See, for example, “Statement by ACDA Director Foster 
58

to the Eighteen Nation Disarmament Committee: Non-dissemination of Nuclear Weapons, February 6, 1964,” in U.S. Arms 

Control and Disarmament Agency, Documents on Disarmament, 

1964, Washington, DC: U.S. Government Printing Office, 1965, 

pp. 32–33, in which restraint in international nuclear nonproliferation was urged since without it there “would be no rest for 

anyone . . . no stability, no real security and no chance of effective 

disarmament.” It was also argued that because the acquisition of 

nuclear weapons by smaller countries would “increase the likelihood of the great Powers becoming involved in what would 

otherwise remain local conflicts,” both the security of weapons 

and nonweapons states in U.S. eyes was at stake.

25. See Bunn, pp. 66–75.

26. See “Statement by the Irish Foreign Minister, November 

13, 1959,” Documents on Disarmament, 1945–1959, pp. 1520–1526.

27. See “Statement by the Indian Representative [Trivedi] to 

the First Committee of the General Assembly: Nonproliferation 

of Nuclear Weapons, October 31, 1966,” U.S. Arms Control and 

Disarmament Agency, Documents on Disarmament, 1966, Washington, DC: U.S. Government Printing Office, 1967, p. 679.

28. Ibid., pp. 156–157. See “Statement of the Egyptian Representative [Khallaf] to the Eighteen Nation Committee on Disarmament, March 3, 1966.” 

29. One of the earliest expressions of this idea can be found 

in Jacob Viner, “The Implications of the Atomic Bomb for International Relations,” International Economics: Studies by Jacob Viner, 

Glenco, IL: Free Press, 1951, pp. 300–309. For the earliest popular presentation of finite deterrence theory, see Pierre M. Gallios, 

“Nuclear Aggression and National Suicide,” The Reporter, Vol. 18 

November 1958, pp. 22–26.

30. See, for example, P. H. Backus, “Finite Deterrence, Controlled Retaliation,” U.S. Naval Institute Proceedings, March 1959, 

pp. 23–29; and George W. Rathjens, Jr., “Deterrence and Defense,” 

Bulletin of the Atomic Scientists, September 1958, pp. 225–228.

31. United Nations Department of Political and Security 
59

Council Affairs, The United Nations and Disarmament, pp: 260-261.

32. In fact, it was in a NATO gathering held in February 1962 

that Italy first voiced reservations about agreeing not to acquire 

nuclear weapons unless the nuclear weapons nations promised 

to disarm. Later that year, however, it acquiesced and supported 

a U.S. draft resolution that would allow the use of U.S. weapons by a multilateral NATO naval force. For details, see George 

Bunn, Roland M. Timerbaev, and James F. Leonard, “Nuclear 

Disarmament: How Much Have the Five Nuclear Powers Promised in the Non-Proliferation Treaty?” John B. Rhinelander and 

Adam M. Scheinman, eds., At the Nuclear Crossroads: Choices about 

Nuclear Weapons and Extension of the Non-Proliferation Treaty, Lanham, MD: University Press of America, Inc., 1995, p. 15.

33. See The United Nations and Disarmament, 1945–1970, p. 266.

34. See, for example, the exchange between the Soviet and 

U.S. representatives to the Eighteen Nation Disarmament Committee, July 2, 1964, in Documents on Disarmament, 1964, pp. 241–

56.

35. Ibid., pp. 485–490. For a review of the nonaligned nations’ 

actions along these lines, see “Statement by the U.A.R. Representative [Fahmy] to the First Committee of the General Assembly: 

Nonproliferation of Nuclear Weapons, October 22, 1965.” 

36. See The United Nations and Disarmament, 1945–1970, p. 

269. Italy and others continued to promote this idea through 

1967. See, for example, “Statement by the Burmese Representative [Maung Maung] to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons, October 10, 1967”; 

and “Statement by the Italian Representative [Caracciolo] to the 

Eighteen Nation Disarmament Committee: Draft Nonproliferation Treaty, October 24, 1967,” in U.S. Arms Control and Disarmament Agency, Documents on Disarmament, 1967, Washington, 

DC: U.S. Government Printing Office, 1968, pp. 463, 529.

37. See, for example, “Chinese Communist Comment on 

Draft Nonproliferation Treaty, September 3, 1967,” in Documents 

on Disarmament, 1967, pp. 381.
60

38. Ibid., p. 370. See “Statement by the Brazilian Representative [Azeredo da Silveira] to the Eighteen Nation Disarmament 

Committee: Draft Nonproliferation Treaty, August 31, 1967.” 

39. Ibid., p. 429. See “Address by President Bourguiba of Tunisia to the General Assembly, September 27, 1967 [extract].”

40. See Steve Coll, “Neutral Sweden Quietly Keeps Nuclear 

Option Open,” The Washington Post, November 25, 1994, p. A1.

41. See “Statement by the Swedish Representative [Alva 

Myrdal] to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons, October 3, 1967,” in Documents 

on Disarmament, 1967, p. 444.

42. For a brief history of India’s nuclear weapons program, 

see Leonard S. Spector, Nuclear Proliferation Today, New York: 

Vintage Books, l984, pp. 23ff.

43. See Roberta Wohlstetter, “The Buddha Smiles: Absentminded Peaceful Aid and the Indian Bomb,” Energy Research 

and Development Administration, Monograph 3, contract no. (49-

1)-3747, Marina del Rey, CA: Pan Heuristics, April 30, 1977, pp. 

30–75.

44. See “Extract from News Conference Remarks by the Indian External Affairs Minister [Chagla], April 27, 1967,” in Documents on Disarmament, 1967, pp. 204–205.

45. Ibid.

46. Ibid., p. 235. See “Statement by the Indian Representative 

[Trivedi] to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons, May 23, 1967.” 

47. Ibid.

48. Ibid.; and “Statement by the Brazilian Representative 

[Correa da Costa] to the Eighteen Nation Disarmament Committee: Peaceful Uses of Nuclear Energy, May 18,1967,” p. 226.

49. For a description of Brazil’s attempt to secure a safeguard-
61

ed military production reactor during this period, see Spector, 

pp. 236–238.

50. See Albert Wohlstetter et al., Swords from Plowshares: The 

Military Potential of Civilian Nuclear Energy, Chicago, IL: University of Chicago Press, 1979, pp. 85–86; and Albert Wohlstetter et 

al., Can We Make Nuclear Power Compatible with Limiting the Spread 

of Nuclear Weapons? Vol. 1-l, “The Spread of Nuclear Bombs: Predictions, Premises, Policies,” ERDA contract no. E(49-1)-3747, 

Los Angeles, CA: Pan Heuristics, November 15, 1976, pp. 9– 32, 

89–108.

51. See, for example, “Statement by the Ethiopian Representative [Zelleke] to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons, October 5, 1967”; 

and “Statement by the Mexican Representative [Castaneda] to 

the Eighteen Nation Disarmament Committee: Latin American 

Nuclear-Free Zone, May 18, 1967,” Documents on Disarmament, 

1967, pp. 228, 449–450.

52. Ibid., p. 377. See “Statement by the Nigerian Representative [Sule Kolo] to the Eighteen Nation Disarmament Committee: 

Draft Nonproliferation Treaty, August 31, 1967.” The Germans 

also shared this view; “Statement by Foreign Minister Brandt to 

the Bundestag: Nonproliferation of Nuclear Weapons, February 

1, 1967 [extracts].” 

53. Ibid., pp. 211–212. See “Statement by Foreign Minister 

Brandt to the Bundestag on Proposed Nonproliferation Treaty, 

April 27, 1967.” 

54. Ibid., p. 53. See, for example, “Statement by Foreign 

Minister Brandt to the Bundestag: Nonproliferation of Nuclear 

Weapons, February 1, 1967 [extracts].” 

55. Ibid., pp. 557–558. See “Statement by the Nigerian Representative [Sule Kolo] to the Eighteen Nation Disarmament 

Committee: Draft Nonproliferation Treaty, November 2, 1967 

[extract].” 

56. Ibid., p. 573. See “Swiss Aide Memoire to the Co-Chairmen 

of the Eighteen Nation Disarmament Committee: Draft Nonpro-
62

liferation Treaty, November 17, 1967.” 

57. On the point that this language meant that nonweapons nations might be compelled to withdraw if the weapons 

states did not live up to their pledge to disarm, see, for example, 

“Statement by the Swedish Representative [Alva Myrdal] to the 

Eighteen Nation Disarmament Committee: Nonproliferation of 

Nuclear Weapons, February 8, 1968”; “Statement by the Ethiopian Representative [Makonnen] to the First Committee of the 

General Assembly: Nonproliferation of Nuclear Weapons, May 

6, 1968”; and “Statement by the Indian Representative [Husain] 

to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons, February 27, 1968,” U.S. Arms Control and Disarmament Agency, Documents on Disarmament, 1968, 

Washington, DC: U.S. Government Printing Office, 1969, pp. 45, 

293–294, and 116.

58. See “Television Interview with Chancellor Kiesinger: 

Nonproliferation Negotiations, February 17, 1967 [extract]”; and 

“Statement by Foreign Minister Brandt to the Bundestag on Proposed Nonproliferation Treaty, April 27, 1967,” Documents on 

Disarmament, 1967, pp. 91, 215.

59. Ibid., p. 315. See “Statement by the Canadian Representative [Burns] to the Eighteen Nation Disarmament Committee: 

Nonproliferation of Nuclear Weapons, August 3, 1967.” 

60. Ibid., p. 458. “Statement by the British Representative 

[Hope] to the First Committee of the General Assembly, December 14, 1967.” 

61. Ibid., p. 432. See “Statement by the Indian Representative 

[Trivedi] to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons, September 28, 1967.” 

62. See, for example, Eldon V. C. Greenberg, The NPT and 

Plutonium: Application of NPT Prohibitions to “Civilian” Nuclear 

Equipment, Technology and Materials Associated with Reprocessing 

and Plutonium Use, Washington, DC: Nuclear Control Institute, 

1993, pp. 18–19.

63. See “Statement by the Dutch Representative [Eschauzier] 
63

to the First Committee of the General Assembly: Nonproliferation of Nuclear Weapons, May 6, 1968 [extract],” Documents on 

Disarmament, 1968, pp. 295–296.

64. Ibid., p. 721. See “Statement by ACDA Director Foster to 

the First Committee of the General Assembly: Nonproliferation 

of Nuclear Weapons, November 9, 1966.”

65. Ibid., p. 40. See “Spanish Memorandum to the Co-Chairmen of the Eighteen Nation Disarmament Committee, February 

8, 1968”; and “Mexican Working Paper Submitted to the Eighteen Nation Disarmament Committee: Suggested Additions to 

Draft Nonproliferation Treaty, September 19,1967,” Documents 

on Disarmament, 1967, pp. 394–395.

66. For this interpretation, see Greenberg; and Arthur Steiner, “Article IV and the ‘Straightforward Bargain’,” PAN Paper 

78-832-08, Wohlstetter et al., Towards a New Consensus on Nuclear 

Technology, Vol. 2, Supporting Papers, ACDA Report no. PH-78-

04-832-33, Marina del Rey, CA: Pan Heuristics, 1977.

67. For the latest economic forecast as to when such fuels 

might make economic sense, see, for example, Brian G. Chow and 

Kenneth A. Solomon, Limiting the Spread of Weapon-Usable Fissile 

Materials, Santa Monica, CA: RAND, October 1993, pp. 25–54.

68. See David Kay, “Detection and Denial: Iraq and Beyond,” 

Washington, DC: Consortia for the Study of Intelligence, June 

1994.

69. See, for example, Chow and Solomon, pp. xiv–xv; and 

Paul Leventhal, IAEA’s Safeguards Shortcomings—A Critique, 

Washington, DC: Nuclear Control Institute, September 12, 1994.

70. See, for example, William T. Lee, “The Nuclear Brink That 

Wasn’t—and the One That Was,” The Washington Times, February 

7, 1995, p. A19.
64
65

PART III:

THE NPT AND NUCLEAR WEAPONS–

ARTICLES I, II, AND VI
66
67

CHAPTER 4

HOW WILL THE NUCLEAR WEAPONS 

STORY END?*

Victor Gilinsky

Most know the story of nuclear weapons. The United States developed them to protect against a possible 

German program; then the Soviet Union built them to 

match America, then Britain, France and China, then 

Israel, South Africa, India, and Pakistan, and, most 

recently, North Korea.1

 A competitive spiral keeps 

nuclear countries locked in and attracts new members 

to the nuclear club, slowly perhaps, but nevertheless 

continually. Where this will end, none of us knows. It 

is a subject to which we should pay more attention. 

CAN WE KEEP THE BOMBS ON THE SHELF 

INDEFINITELY?

We sometimes contemplate the possibility of a 

worldwide nuclear breakdown, but I think we do so 

only on an intellectual level. We do not really believe 

it can happen. If we did, we would behave differently. 

Meanwhile, there is no sign that any of the current 

nuclear countries are ready to give up their arsenal, 

and the number of nuclear bombs in the world is still 

in the tens of thousands.2

_______________

*Remarks of Victor Gilinsky prepared for The 10th PIIC Beijing 

Seminar on International Security, Xiamen, China, September 24-

29, 2006, available from www.npec-web.org/Presentations/20060924-

Gilinsky-BeijingRemarks.pdf. Adapted slightly for publication.
68

The subtitle of this seminar is “Harmony Makes 

the World Stable and Secure.” In a world of so many 

nuclear weapons, can we count on harmony to restrain 

use indefinitely? Can we rely on so-called rational behavior (so-called because it is not always clear what 

“rational” means)? And, in any case, people often do 

not behave in their best interests, at least not in their 

collective best interests, and sometimes humanity displays a self-destructive streak. Did it make sense, for 

example, to build more than 100,000 nuclear weapons 

during the Cold War?

A pressing reason to look ahead more seriously 

than we do is that once one country breaks the taboo on 

nuclear weapons use, it is likely that restraints against 

further use will weaken. At that point, the organizing 

principles of the world will have to change. Our cities, 

our economic systems, and our civil societies, will all 

become anachronisms. Of course, the number of warheads and the dangers of a worldwide catastrophe are 

now reduced from what they were during the Cold 

War. A great deal of writing is devoted to explaining 

how to maintain nuclear stability in a world of many 

nuclear weapons. Optimists argue that, since even at 

the most dangerous time of the Cold War the antagonists did not use nuclear bombs, the nuclear future is 

“manageable.”

But to me, the Cold War experience suggests a different conclusion—that the nonuse of nuclear weapons since 1945 had less to do with these theories and 

more to do with simple human awe that made everyone hesitate to open Pandora’s Box, an awe that will 

not last forever. (If you remember the story, Pandora 

could not resist opening the Box and unleashed human misery.)

We were also just plain lucky, especially in the 
69

early years of the Cold War. Up to the mid-1950s, 

there were many bombs that one person had the ability to detonate, and some of them were small enough 

for one person to carry. Fortunately, none got into the 

wrong hands.

We were lucky in other ways. To protect against a 

Soviet surprise attack, the U.S. Air Force took to keeping some bombers fully loaded with nuclear weapons 

in the air at all time. Some of these planes suffered 

accidents and dropped their bombs. Altogether, about 

a dozen dropped thermonuclear bombs were never 

found. Fortunately, none detonated. I am sure other 

countries had similar accidents.

THE CUBAN MISSILE CRISIS

The great nuclear crisis of the Cold War was, of 

course, the 1962 Cuban missile crisis. At that time, 

we experienced some scenes that could have come 

straight out of the movie, Dr. Strangelove (1964). We 

discovered since then that the situation during the crisis was even more dangerous than it seemed at the 

time. I do not think we should flatter ourselves to think 

that we are much smarter today and that we could not 

get into a similar dangerous situation. Basic human 

nature hasn’t changed much in the last half century. 

One thing that surely has not changed is the cult of 

toughness in high-level decisionmaking. It is always 

safer to be thought “hard” than “soft.” This is a problem that has been with mankind since ancient times.

One of the experiences along these lines that affected me greatly was a talk after the Cuban crisis given 

by a Strategic Air Command (SAC) major general who 

had led U.S. bombers during the crisis on what he believed at the time was an attack on the Soviet Union. 
70

The general, a kind and thoughtful man, told us how 

difficult it was to say goodbye to his wife before his 

mission. He described in detail the extensive planning, the long training, and the tremendous discipline 

required. During the initial stages of the flight, he had 

time to reflect on his orders. The crews understood 

perfectly that each plane carried many megatons of 

nuclear explosives whose use would have awful consequences. When the bombers reached a certain point 

over the Arctic, they were to continue to their targets 

if they got a coded “Go” signal, and to return home if 

they did not.

The expected signal did not come, and at the last 

moment the general gave the order for the planes to 

turn around. (What a relief, I thought.) The general 

drew himself up, paused, looked out across the audience, and told us that having to give the order to turn 

around was the most disappointing(!) moment of his 

entire life.

It did not change my opinion of him as a good person. It did, however, give me new insight into human 

nature. The point I want to make is that no one, no 

matter how decent, can spend a lifetime training for 

something and not have some part of them want to 

apply their training, no matter how awful the consequences.

I do not want to leave you with the impression that 

this is a comment on the United States or the U.S. Air 

Force. It is a comment on human nature. It sometimes 

pulls us in the wrong direction.

WHAT ABOUT THE SCIENTISTS?

Just like the military want to apply their training, 

scientists like to see their ideas work in the real world. 
71

When the Los Alamos, New Mexico, scientists heard of 

the Hiroshima, Japan, atomic bomb detonation, many 

cheered. In retrospect, of course, that was a dreadfully 

inappropriate reaction. But it was only human nature. 

They were not cheering the deaths; they were cheering the first successful uranium explosion.

The lesson we need to remember is that most people cannot work on something with all their heart, not 

even an awful bomb, and not want to see it work. But 

as we know, that tendency can have unfortunate consequences.

Herb York, a former director of the Livermore Laboratory, wrote in his 1970 book, Race to Oblivion, that 

the problem of controlling nuclear weapons activities 

was made more difficult because those devoted to pursuing them were mostly sincere persons acting in good 

faith. They really believe in what they are doing. At the 

same time, he writes, the real motives for this work are 

not necessarily what they are represented to be.3

The line between genuine concern for the defense 

of one’s country and unchecked personal ambition is 

often unclear. The real driving force is often the sense 

of importance, and sometimes real prominence, that 

comes from working on powerful weapons. 

The U.S. and Soviet weapons scientists became 

powerful figures. The same is certainly true in other 

weapons states. Last month, for example, the Indian 

Prime Minister had to publicly mollify the top scientists in the Indian weapons establishment to get 

support for his nuclear deal with the United States. 

Or consider the privileged status in Pakistan of A. Q. 

Khan, despite such misdeeds as divulging nuclear 

weapons secrets to North Korea.
72

THERMONUCLEAR WEAPONS

Sometimes the irresistible attraction of the weapons is scientific. Physicists, especially, are enthralled 

with the idea that their scribbles on the blackboard 

can change the world, whether it is for better or for 

the worse.

Robert Oppenheimer, who initially opposed the 

U.S. development of the thermonuclear bomb, was ultimately won over by the Teller-Ulam idea that made 

it work. Oppenheimer called the idea “technically 

sweet.”4 The phrase betrays the seduction of interesting scientific problems, even if they are associated 

with weapons for mass killing. The same pull operated among physicists in other countries, perhaps even 

more strongly.

I should say that not all were seduced by temptation nor anxious at all costs to maintain their status with the powerful. Of the famous scientists who 

took part in the American debate over thermonuclear 

weapons in 1950, I am most impressed with Enrico 

Fermi and I. I. Rabi. When the question of building 

the thermonuclear bomb first arose, they took a firmer 

stance than Oppenheimer. They said, “The fact that 

no limit exists to the destructiveness of this weapon 

makes its very existence and the knowledge of its construction a danger to humanity as a whole.”5 Their advice was ignored, and we now live with that danger.

By 1952, the United States detonated a manymegaton thermonuclear device, the so-called Mike 

shot, on an island in the Pacific Ocean. Eventually the 

scientists learned to make small thermonuclear devices, too. But the main thing was the possibility of 

powerful warheads. The military liked big bombs for 

use in massive attacks because in those days bombers 
73

and missiles were highly inaccurate. You had to have 

high yield in order to have a high probability of destroying a target a continent away. Years later, when 

the accuracy of weapons was increased by orders of 

magnitude, there was no corresponding reduction in 

weapons yields. Warhead yields remain outrageously 

high in all countries.

SOVIET BIG BOMB

The Soviets, too, launched a crash program to 

develop thermonuclear weapons, and eventually 

overtook the United States in numbers. When Nikita 

Khrushchev wanted a huge bomb with which to intimidate the West, a Soviet team led by Andrei Sakharov produced a 100-megaton bomb—the largest bomb 

ever designed or used. The Soviets detonated it in 

1961 with an intentionally reduced yield of 50 megatons, because anything higher would have destroyed 

the plane that dropped it. Sakharov received a “Hero 

of Socialist Labor” award for it.

I mention this because we associate Sakharov’s 

name with human rights, not mass destruction. Of 

course, his role as a heroic opponent of the Soviet government came later. But the interesting thing is that 

when he wrote his Memoirs in 1990, he was still proud 

of designing the Big Bomb, just as Robert Oppenheimer, for all his later reflections, remained proud of 

having built the first fusion bomb.

I saw a copy of the Big Bomb in the bomb museum 

at Russia’s Chelyabinsk 70 weapons laboratory. An 

Italian woman in our group asked the old laboratory 

director, “How could you build such a horrible bomb?” 

He smiled and said, “When the orders come down from 

the Kremlin, for some funny reason, you do it.”6
74

What I am saying is that the state’s drive for big 

weapons is only part of the story, whether in the Soviet Union or anywhere else. From my own observation, it is more often the scientists and the weapons 

laboratories that entice the powerful in government 

with new ideas for bombs, rather than the other way 

around.

WHAT SHOULD ONE DO?

What about individual scientists? How is a scientist 

to act? Let me say a word especially to those whose careers are ahead of them. We have to think of our country’s defense because if we do not, who will beyond 

the military establishment itself? But—to paraphrase 

the ancient Jewish sage and teacher, known simply 

as Hillel—if we think only of our own country, what 

are we? There are ethical/moral lines we should not 

cross, even for our motherland.

Each person has ultimately to wrestle with himself 

as to what is legitimate defense and what crosses the 

line. The important thing, it seems to me, is to bring 

to your work your sense of what is right, and to ask 

yourself: What if everyone around the world did as I 

do? Is that acceptable behavior? And you need to ask 

this during your professional career, when your decisions matter, not to wait until they are merely of academic interest.

HOW LONG CAN WE TICKLE THE 

DRAGON’S TAIL?

I bring all this up because the importance of nuclear 

weapons seems again to be on the increase. The stated 

reasons for developing them or upgrading nuclear 
75

forces have supposedly to do with national defense, 

but I think the factors I have mentioned—the importance it gives to the participating individuals and 

weapons laboratories—also plays an important role 

in urging governments in this direction. The governments seem to hold to the optimistic notion that they 

can brandish the weapons and gain psychological and 

political advantage without risking that the weapons 

will actually be used. We assume we can do nuclear 

shadow boxing so carefully that no one gets hurt.

This reminds me of an experiment Los Alamos scientists conducted during World War II that was called 

“tickling the dragon’s tail.” The aim was to determine 

the critical masses of nuclear explosives by tapping 

two subcritical masses toward each other with a screwdriver, all the while measuring the neutron count. The 

idea was to control the dangers by tapping slowly and 

carefully so as to cause only very tiny movements. 

One day the experimenter’s screwdriver slipped and 

the two pieces got knocked too close together, and before the physicist could knock the pieces apart, he got 

a lethal dose and died a horrible death.7

We may be underestimating the worldwide dangers in the same way.

ENDNOTES—CHAPTER 4

1. South Africa built bombs but dismantled them and became 

a Nonproliferation Treaty signer.

2. The United States and Russia have reduced their stockpiles significantly and apparently will reduce them further, one 

should note, something for which they should get more credit 

than they do. But they both intend to hang on to a pile of these 

weapons indefinitely.

3. See Herbert York, Race to Olivion: A Participant’s View of the 
76

Arms Race, New York: Clarion Press, 1970, pp. 224-239, available 

from www.learnworld.com/ZNW/LWText.York.Race.Access.html.

4. See A History of National Security: Mike Shot, Los Alamos, 

NM: Los Alamos National Laboratory, April 6, 2010, available 

from www.lanl.gov/history/postwar/mikeshot.shtml.

5. See Enrico Fermi and I. I. Rabi, “An Opinion on the Development of the ‘Super’,” in The General Advisor Committee to the 

Atomic Energy Commission Majority and Minority Reports on Building 

the H-Bomb, Washington, DC: The U.S. Atomic Energy Commission, October 30, 1949, available from www.atomicarchive.Com/

Docs?Hydrogen?GACReport.shtml.

6. Recollection of events by the author of this chapter.

7. See Bryan Hubbard, “A Critical Accident ‘Tickling the 

Dragon’s Tail’,” Military.com, April 7, 2010, available from www.

Military.Com/Content/More Content1/?file=cw_nuclear_slotin. 
77

CHAPTER 5

MOVING TOWARD ZERO AND 

ARMAGEDDON?*

Henry Sokolski

Assuming current nuclear trends continue, the 

next 2 decades will test America’s security and that 

of its closest allies as they never have been tested before. Before 2020, the United Kingdom will find its 

nuclear forces eclipsed not only by those of Pakistan, 

but of Israel and of India. Soon thereafter, France will 

share the same fate. China, which has already enough 

separated plutonium and highly enriched uranium to 

triple its current stockpile of roughly 300 nuclear warheads, could expand its nuclear arsenal too. Meanwhile, Japan will have ready access to thousands of 

bombs worth of separated plutonium. U.S. and Russian nuclear weapons-usable material stocks—still 

large enough to be converted back to many tens of 

thousands of weapons—will decline only marginally 

while similar nuclear weapons-usable stores in Japan 

and other nuclear weapons states could easily double.1

Compounding these developments, even more 

nuclear weapons-ready states are likely: As of 2009, 

at least 25 states have announced their desire to build 

large reactors—historically, bomb starter kits—before 

2030. None of this will foster the abolition of nuclear 

weapons. Certainly, the current battery of U.S.-backed 

arms control measures, including the ratification of

____________

*A version of this chapter was published in the April 2010 edition 

of the Armed Forces Journal. 
78

major arms reductions treaties with Russia, a Comprehensive Test Ban, a cut-off treaty banning further 

military nuclear fissile production, and enhanced 

inspections of civilian nuclear programs—are unlikely to be enough to head off the troubling trends 

described. What is worse, the expected arms control 

measures, if executed too hastily, could easily make 

matters worse.

Thus, congressional critics of strategic arms reductions with Moscow argue that if the United States 

and Russia cut their strategic nuclear deployments 

too deeply and too quickly, it might undermine the 

credibility of our nuclear security alliances with states 

like Japan and Turkey who, in turn, might be tempted 

to go nuclear themselves. As for pushing ratification 

of a Comprehensive Test Ban Treaty, this too could 

backfire: India, whose last nuclear test series was followed by a Pakistani nuclear test, recently debated 

whether to resume nuclear testing to beat what some 

in India fear is an approaching nuclear test ban deadline. Meanwhile, American test ban treaty opponents 

have urged the U.S. Senate to tie the treaty’s test limits 

to what other states, like Russia, say the treaty might 

allow. Pegging the treaty to this limit, however, could 

conceivably actually encourage some forms of lowyield nuclear testing. 

As for securing a nondiscriminatory, global ban 

against the “military” production of separated plutonium and enriched uranium for nuclear weapons, this 

also could inflict unintended harm. Here, the danger is 

that the treaty bans the production only of fissile material for military purposes and, as such, could encourage increased production for civilian purposes. The 

odds of inspectors catching military diversions from 

such “peaceful” plants are quite low. Finally, with the 
79

growing popularity of “peaceful” nuclear energy, nuclear supplier states are claiming that exporting new 

power reactors will strengthen nonproliferation since 

it will come with the application of enhanced nuclear 

inspections. Unfortunately, in most of the truly worrisome cases, even enhanced inspections may not be 

reliable enough to safeguard against significant military diversions. As it is, international nuclear inspections are failing to maintain continuity of inspections 

over most of the world’s spent or fresh fuel that can be 

enriched and reprocessed to make weapons-usable fuels. These nuclear fuel-making plants, moreover, can 

be hidden from inspectors and, even when declared, 

be used to make weapons-usable materials without 

necessarily being detected in a timely fashion.2

Several of these points are beginning to receive 

attention in the United States. The debate over these 

matters, however, needs to be broadened. Why? Because even if Washington’s favorite nuclear control 

initiatives are well-executed and avoid running the 

risks noted above, the United States and its allies will 

still face a series of additional nuclear proliferation 

dangers of major proportions. 

A PACKED NUCLEAR ARMED CROWD? 

The first of these is that as the United States and 

Russia reduce their nuclear weapons deployments, 

China, India, Pakistan, and Israel are likely to increase 

theirs. Currently, the United States is proposing to 

reduce U.S. and Russian strategic weapons deployments to as low as 1,000 warheads each. As a result, it 

is conceivable that in 10 years’ time the nuclear numbers separating the United States and Russia from the 

other nuclear weapons states might be measured in the 
80

hundreds rather than the thousands of weapons (see 

Figure 1). In such a world, relatively small changes in 

any state’s nuclear weapons capabilities will have a 

much larger impact than it might on the world’s international security today.

Figure 1. Coming Nuclear Congestion.3

Compounding the international volatility that 

this set of trends is likely to induce are the large and 

growing stockpiles of nuclear weapons-usable materials (i.e., of separated plutonium and highly enriched 

uranium) in several states. These already exceed tens 

of thousands crude bombs’ worth of material in the 

United States and Russia and are projected to grow 

in Pakistan, India, China, and Israel (not to mention 

Japan, which currently has no nuclear weapons). This 

will enable these four states to increase their current 

nuclear deployments much more quickly and dramatically than ever was possible previously. (See Figures 

2 and 3 for these states’ current holdings of nuclear 

weapons fuel waiting in the wings).
81

Civilian stocks are for January 2007 and based on the 

latest national INFCIRC/549 declarations to the IAEA 

(with the exception of Germany). Civilian stocks are 

listed by ownership, not be current location. Weapon 

stocks are based on nongovernmental estimates except 

for the UK and the United States, whose governments 

have made declarations. India’s plutonium separated 

from unsafeguarded spent PHWR fuel is categorized 

as an additional strategic stockpile.

Figure 2. National Stocks of Highly Enriched 

Uranium as of Mid-2008.4
82

The numbers for the UK and the United States are 

based on official information. Numbers with asterisk 

are nongovernmental-estimates, often with large uncertainties. Numbers for Russian and U.S. excess HEU 

are for June 2008. HEU in non-nuclear weapon (NNW) 

states is under IAEA safeguards.

Figure 3. National Stocks of Separated Plutonium.5

Moreover, 20 years out, there could be more nuclear weapons-ready states—countries that could 

acquire nuclear weapons in a matter of months, like 

Japan and Iran. As already noted, more than 25 states 

have announced plans to launch large civilian nuclear 

programs. If they all realize their dreams of bringing 

their first power reactors on line by 2030, it would constitute a near doubling of the 31 states that currently 

have such programs, most of which are in Europe (see 

Figures 4 and 5).
83

Figure 4. Today Number of States or Regions

with Power Reactors Is Limited.6

Figure 5. Planned for 2030.7
84

Such a nuclear expansion could have major military implications. Every current weapons state first 

brought a large reactor on line prior to acquiring its 

first bomb. The United Kingdom (UK), France, Russia, 

India, Pakistan, and the United States all made many 

of their initial bombs from reactors that also provided 

power to their electrical grids. The United States, in 

fact, still uses a power reactor, a “proliferation resistant” light water reactor operated by the Tennessee 

Valley Authority, to make all of its weapons grade 

tritium for its nuclear arsenal. 

Other plants, of course, are needed to chemically separate out weapons-usable plutonium from 

the spent reactor fuel or to enrich the uranium used 

to power such machines. Yet, as the recent cases of 

Iran and North Korea demonstrate, such plants can 

be built and operated in ways that make it difficult 

to detect diversions in a timely fashion. Certainly, if 

all of the announced civilian nuclear programs are 

completed as planned, the world in 2030 would be far 

less stable. Instead of there being several confirmed 

nuclear weapons states—most of which the United 

States can claim are either allies or strategic partners—

there could be an unmanageable number of additional 

nuclear weapons capable-states—armed or weaponsready—to contend with, as Figures 6 and 7 depict.
85

Figure 6. Current proliferation seems manageable, 

but DPRK and Iran are problematic.

Figure 7. With more nuclear-ready states will we 

ramp up to a nuclear World War I?
86

In such a world, the United States might know 

who its friends and potential adversaries might be, 

but Washington would have difficulty knowing what 

such states might do in a crisis—close ranks with the 

United States, go their own way developing weapons 

options, or follow the lead of some other nuclear-capable nation. As for America’s possible adversaries, 

Washington would have difficulty determining just 

how lethal these adversaries’ military forces might be. 

All of this would only heighten the prospects for 

nuclear terrorism. Not only would there be more 

opportunities to seize nuclear weapons or nuclear 

weapons materials, there would be more military and 

civilian nuclear facilities to sabotage. Finally, the potential for miscalculation and nuclear war could rise 

to a point where even non-nuclear acts of terror could 

ignite larger conflicts that could turn nuclear.

Taken together, then, these trends could easily duplicate or exceed the kind of volatility that preceded 

World Wars I and II—periods in which overly ambitious arms control objectives were pursued while states 

completed major covert and overt military preparations that heightened tensions and subsequently were 

employed in total wars. 

MAKING THE MOST OF ZERO

All of this raises the question of whether we can 

avoid such a future. The short answer is yes, but only 

if we attend more closely to four basic principles. Let 

us discuss them in turn. First, as nuclear weapons deployments decline, more care must be taken to ensure 

that military reductions or additions actually work to 

decrease the chances for war. If our security guarantees are to continue to neutralize the nuclear weapons 
87

yearnings of our allies, it is critical that we avoid doing anything to undermine the favorable correlation of 

forces the United States enjoys against its key nuclear 

competitors. In addition to making roughly equal nuclear reductions with Russia, then, the United States 

will have to keep other nuclear-armed states, such as 

China and India, from trying to catch up with U.S. 

nuclear weapons deployment levels and—as in the 

case of India and China, Pakistan and India, and Japan 

and China—from trying to catch up with each other. 

This means that additional nuclear restraints, either 

in the form of nuclear weapons reductions or further 

limits on the production or stockpiling of weaponsusable fuel, will need to be reached with Russia, of 

course, but also with China, India, and Pakistan. As 

a practical matter, this also means that other nuclear 

weapons-ready or virtual weapons states (e.g., Japan) 

will have to be persuaded to curtail or end their production of nuclear weapons-usable materials or to dispose of some portion of what they currently have. 

To date, the United States has not publicly grappled with how best to do this. President Barack Obama 

has called for the negotiation of a fissile material cutoff treaty. But this agreement allows civilian nuclear 

fuel production, which is virtually identical to military fuel production. Also, after decades of fruitless 

negotiations in Geneva, it is unclear whether any such 

agreement could ever be brought into force. Some 

officials, including those advising Secretary of State 

Hillary Clinton, have suggested a complementary 

approach to these negotiations known as the Fissile 

Material Control Initiative. Instead of a binding treaty, both NPT weapons states and nonweapons states 

would simply identify what portion of their separated 

plutonium and highly enriched uranium stocks was in 
88

excess of either their military or civilian requirements 

and secure or dispose of them.8

Yet another practical idea, which would have direct bearing on India’s nuclear weapons activities, 

would be to ensure that implementation of the U.S. 

civilian nuclear cooperative agreement with New 

Delhi does nothing to help India make more nuclear 

weapons-usable fuels than it was producing when the 

deal was finalized late in 2008. Under the NPT, the 

states that had nuclear weapons in 1967—the United 

States, Russia, France, the UK, and China—swore not 

to help any other state outside of these five ever to 

acquire them directly or indirectly. Meanwhile, under 

the Hyde Act, which authorized the civilian U.S.-Indian nuclear deal, the White House is routinely required 

to report to Congress on just how much uranium fuel 

India is importing, how much it is using to run its 

civilian reactors, how much uranium it is producing 

domestically, and the extent to which the operation of 

its unsafeguarded reactors is expanding its stockpiles 

of unsafeguarded plutonium with either the direct or 

indirect help of NPT weapons states.9

India’s unsafeguarded plutonium stockpiles might 

grow faster per year than was the case prior to the 

nuclear cooperative agreement’s finalization in 2008 

because Indian uranium imports from one or more of 

the NPT weapons states could allow India to use more 

of its domestically produced uranium in its unsafeguarded reactors to make bomb usable plutonium. If 

this ever happened, the exporting nuclear weapons 

states would be implicated in violating the NPT. To 

prevent such a violation or, at least, limit the harm 

it might do, the United States should urge all other 

nuclear-supplying states to suspend civilian nuclear 

assistance until India’s unsafeguarded nuclear weap-
89

ons-usable material production declines. The logical 

venue at which to make this request would be the Nuclear Suppliers Group. Such vigilance should also be 

matched with efforts to keep Pakistan from expanding 

its nuclear weapons capabilities as well.

As for trying to maintain the relative parity of 

competing nuclear-armed state forces through nonnuclear military assistance or buildups, the trick will 

be to substitute conventional arms for nuclear ones 

in a manner that avoids increasing one or both side’s 

interest in acquiring more nuclear weapons. Unfortunately, deploying more advanced non-nuclear 

systems to compensate for forgone nuclear systems 

will not necessarily assure this. Consider long-range 

precision strike and advanced command control and 

intelligence systems in the case of India and Pakistan. 

Pakistan believes it must threaten to use its nuclear 

weapons first to deter India’s superior conventional 

forces. Precision strike systems, however, could conceivably target Pakistan’s nuclear weapons. As a result, one could imagine that arming India with such 

weapons would only put Pakistan even more on nuclear alert and encourage Islamabad to acquire even 

more nuclear weapons. Building up the wrong kinds 

of advanced nonnuclear weapons systems in India or 

helping it to build them in disproportionate numbers 

could adversely affect any restraint Pakistan might be 

inclined to show in its nuclear weapons plans.

Ballistic missile defenses could also be tricky. Under the right circumstances, having such defenses 

could provide a nonnuclear form of deterrence that 

might facilitate reducing the numbers of deployed 

nuclear weapons. Instead of neutralizing a possible 

opponent’s missiles by targeting them with nuclear or 

non-nuclear offensive weapons, active missile defens-
90

es might be used to counter them after launch. They also 

could be useful as a form of insurance against cheating 

on any future nuclear-capable ballistic missile reduction agreements. To secure these benefits, though, it is 

important to deploy missile defenses correctly.

Again, consider the Indian and Pakistani case. 

While Pakistan insists it must use its nuclear weapons 

first in any major war against India, New Delhi is hoping to use its conventional forces to capture enough 

of Pakistan from a cold start to induce Islamabad to 

quickly sue for peace. Under these circumstances, 

sharing equal amounts of missile defenses with India and Pakistan would only give India yet another 

nonnuclear military edge against Islamabad. This, 

in turn, risks encouraging Pakistan to beef up its offensive nuclear missile forces even more. The only 

way to counter this eventuality and help secure the 

benefits of missile defense for both countries would 

be to address the underlying conventional asymmetry between them. One idea regional security experts 

have long favored is creating, low, medium, and high 

conventional deployment zones on both sides of the 

Indo-Pakistani border to equalize each side’s ability to 

launch quick conventional attacks against one another. Such schemes might also attenuate the perceived 

stability risks of deploying more advanced, discriminate nonnuclear military systems.10

Elsewhere other measures might be required. As 

China increases its nuclear and nonnuclear missile superiority over Taiwan and its capability to target U.S. 

carrier battle groups with conventional ballistic missiles, the United States and its Pacific allies must worry that Beijing may be able to overwhelm the missile 

defenses the United States is now working on. China, 

meanwhile, is considering developing ballistic missile 
91

defenses of its own to counter possible missile attacks. 

Thus, reaching an agreement limiting ballistic missile 

might make sense for both sides. 

Several precedents exist. START, which limits 

U.S. and Russian strategic ballistic missile delivery 

systems, is one. The Intermediate Nuclear Forces 

(INF) Treaty, which covers Russian and NATO missiles with ranges between 500 and 5,500 kilometers, 

is another. The Missile Technology Control Regime 

(MTCR), which limits commerce in missiles with 300 

kilometer range and 500 kilogram payload capabilities, is another still. The trick in reaching additional 

ballistic missile limits is to make sure they are robust 

enough to address the ballistic missiles that matter 

without creating new categories of permissible missiles. It certainly would make little sense to eliminate 

ballistic missiles above 500 kilometers range only to 

end up legitimizing slightly lower range missile systems that are above the limits restricted by the MTCR. 

The second basic principle is that, in reducing existing nuclear weapons and nuclear-capable delivery 

systems, we include steps for preventing their further 

spread. Currently, the connection between reducing 

nuclear arms and preventing their spread is mostly 

symbolic. As the United States and Russia reduce their 

nuclear deployments, other nuclear-armed states, it 

is argued, should follow the U.S-Russian example so 

as to persuade nonweapons states to submit to much 

more intrusive inspections of their civilian nuclear activities. Putting aside the hard cases of Iran and North 

Korea, this line of reasoning ignores several key technical developments and turns on several questionable 

political assumptions. 

Certainly, after failing to detect the covert nuclear 

programs in Iraq, Iran, Syria, and North Korea, it is an 
92

open question whether even enhanced international 

nuclear inspections will be able to reliably detect future illicit nuclear activities. This is especially so if, as 

some believe, large civilian nuclear programs spread 

in regions like the Middle East. 

Not only the United States but Israel, Japan, NATO, 

Russia, and China are planning to deploy ballistic missile defense systems. Yet, the approach of the United 

States and its allies to controlling nuclear strategic 

threats is practically silent as to whether these defense 

programs should be promoted or restricted, and how. 

Nor, outside of strategic reduction talks with Russia, 

is there much discussion as to whether or how other 

states’ development of ballistic missiles (both nuclear 

and nonnuclear) should be approached. 

Then there are the political questions. How likely 

is it that Russia will agree to further nuclear cuts beyond the current START negotiations? Will there be 

yet another START agreement to lower numbers to 

1,000 strategic deployed warheads? Will Russia agree 

to limit its nonstrategic nuclear weapons? What demands will Moscow make for such reductions? Will 

Russia demand that the United States and NATO 

cripple their conventional and missile defense plans? 

Finally, when, if ever, might such agreements be 

reached? The success of the White House’s arms control and nonproliferation policies depends on favorable answers to these questions.

Also, if there are no new penalties or risks for developing nuclear weapons-related capabilities, how 

likely is it that states without nuclear-capable missiles 

or atomic weapons will refrain from trying to acquire 

them? Certainly, the Greater Middle East is watching 

to see what, if anything, the United States and its allies 

might do to penalize Iran’s nuclear misbehavior. Most 
93

states in the region are already hedging their nuclear 

bets by acquiring peaceful nuclear programs of their 

own. Similar dynamics are in play in the Far East in 

relation to North Korea’s nuclear weapons program. 

Beyond these two cases, there is the general worry 

that the enforcement of nuclear nonproliferation lacks 

any teeth. 

These questions suggest the need for an additional 

set of arms control and nonproliferation measures 

to complement the current set, an additional set that 

does not depend so much upon the legally binding 

agreement of any one state. Rather than expect international treaties on nuclear weapons material production and testing to come into force and merely hope

that progress on this front will somehow persuade 

nonweapons states to keep clear of nuclear related 

activities, why not instead promote limits that would 

begin to constrain both nuclear weapons and nonnuclear weapons states at the same time? Rather than 

waiting for Iran, Pakistan, India, North Korea, and 

Egypt to ratify the Comprehensive Test Ban, why not 

use the implicit ban on nuclear testing contained in 

the Nuclear Nonproliferation Treaty to secure an immediate agreement among civilian nuclear supplier 

states to block nuclear trade with any NPT nonweapons state that tests? Once agreement on this has been 

reached, an additional agreement might be sought to 

expand such trade restrictions to any state that tests. 

Why not proceed with the Fissile Material Control 

Initiative, which would have an immediate (albeit initially modest) impact on both nuclear weapons states 

and nonweapons states, while simultaneously pushing the Fissile Material Cut-off Treaty, which would 

only affect nuclear weapons countries?

In addition, it would be useful to tie existing nu-
94

clear controls to controls over nuclear-capable missiles. Currently, violators of the NPT and states that 

withdraw from the treaty, while still in violation, are 

not prohibited from receiving nuclear-capable missile technology and assistance from missile technology supplying states. It would be useful to eliminate 

this loophole with the adoption of an automatic cutoff 

of access to goods controlled by the MTCR by these 

nuclear violators. 

Such nuclear violators are also free to test nuclearcapable missiles, as North Korea recently did, launching them into airspace outside of their borders. Under current international law, all of this is legal. Yet, 

such missiles are ideal for carrying nuclear warheads, 

and their development is meant to intimidate. Should 

there be an international norm, as there is with piracy and slave trading, giving states with the technical power to shoot such objects out of international 

air space (e.g., the United States, Russia, Israel, and 

soon Japan, NATO, and China) as “outlaw” objects? 

Finally, if progress is made on creating additional limits on ballistic missile deployments (e.g., global INF, 

etc.), should violators of these understandings also 

be banned from receiving controlled missile and controlled nuclear goods? 

The third basic principle is that international nuclear inspectors need to distinguish between nuclear 

activities and materials they can reliably safeguard 

against being diverted to make bombs, and those that 

they cannot. This distinction should be publicly announced. The NPT is clear that all peaceful nuclear 

activities and materials must be safeguarded—that is, 

inspected in a manner that can reliably prevent them 

from being diverted to make nuclear weapons. Most 

NPT states have fallen into the habit of thinking that if 
95

they merely declare their nuclear holdings and allow 

international inspections, they have met this requirement. 

This view is dangerously mistaken. After the nuclear inspection gaffes in Iraq, Iran, Syria, and North 

Korea, we now know that the IAEA cannot reliably 

detect covert nuclear activities early enough to allow 

others to intervene to prevent possible bomb making. 

We also now know that inspectors annually lose track 

of many bombs’ worth of nuclear weapons-usable 

plutonium and uranium at declared nuclear fuelmaking plants. Privately, IAEA officials admit that 

the agency cannot assure continuity of inspections 

for spent and fresh fuel rods at more than half of the 

sites that they inspect. Finally, we know that declared 

plutonium and enriched uranium can be made into 

bombs, and their related production plants converted 

so quickly (in some cases, within hours or days) that 

no inspection system can offer timely warning of a 

bomb-making effort. Yet, any true safeguard against 

military nuclear diversions must reliably detect them 

early enough to allow outside powers to intervene to 

block a bomb from being built. Anything less is only 

monitoring that might, at best, detect military diversions after they occur. 

In light of these points, it would be useful for the 

IAEA to concede that it cannot safeguard all that it 

inspects. This would finally raise first-order questions 

about the advisability of allowing the stockpiling of 

plutonium, highly enriched uranium, and plutoniumbased reactor fuels in the belief that these materials 

and activities can be safeguarded. At the very least, it 

would suggest that nonweapons states ought not to 

acquire these materials or facilities beyond what they 

already have. These points are important enough to 
96

raise before, during, and after the May 2010 NPT Review conference. 

In this regard, the United States and other likeminded nations might independently assess whether 

the IAEA can meet its own inspection goals; under 

what circumstances (if any) these goals can be met; 

and, finally, whether these goals are technically sound. 

The U.S. House of Representatives last year approved 

legislation to require the executive to make such assessments routinely and to report their findings. Similar legislation has been proposed in the Senate.11 

The fourth basic principle is that greater attention 

must be paid to comparing costs and discouraging 

the use of government financial incentives for commercialization projects, especially nuclear power, in 

order to assure safe, economically competitive forms 

of clean energy. Supporters of nuclear power insist 

that its expansion is critical to prevent global warming. Yet, they almost always downplay or ignore the 

nuclear weapons proliferation risks associated with 

this technology’s further spread. It may be impossible 

to prevent the spread of nuclear power if it turns out 

to be the cheapest, quickest way to provide low or nocarbon energy, but given the security risk associated 

with nuclear energy, no government should pay extra 

to promote it. 

Moreover, offering additional government financial incentives specifically geared to building more 

commercial nuclear plants and their associated fuelmaking facilities will only increase the difficulty of 

accurately comparing nuclear power with nonnuclear 

alternatives. Not only do such subsidies mask the true 

costs, they tilt the market against less subsidized alternatives. The most dangerous forms of civilian nuclear 

energy and nuclear fuel making in most nonweapons 
97

states and large power reactor projects in war-torn regions like the Middle East—turn out to be poor investments as compared to much safer alternatives.12

There are several ways to mitigate such market 

distortions. The first would be to get as many governments as possible to open all large civilian energy 

projects in their countries to international competitive 

bidding. This procedure is already in place in a number of countries. The problem is that when states want 

to build large energy-producing facilities, they limit 

the competition to nuclear bids rather than open the 

competition to any energy option that could meet the 

applicable set of environmental and economic criteria. 

Limiting the competition in this way ought to be discouraged internationally. 

Most advanced nations, including the United 

States, claim to back the principles of the Energy Charter Treaty and the Global Energy Charter for Sustainable Development. These international agreements 

are designed to encourage all states to open their energy sectors to international bidding to assure that all 

energy options are considered, and that the various 

subsidies and ancillary costs associated with each are 

identified and reflected in the price of what is being 

proposed. Promoting adherence to these rules is essential if the United States and other states are serious 

about reducing carbon emissions in the quickest, least 

costly manner. 

Such states should thus reference and enforce the 

principles of the Energy Charter Treaty and the Global 

Energy Charter for Sustainable Development as part 

of the follow-on to the understandings reached at Copenhagen, Denmark. In addition, states that elect to 

build a nuclear plant, when less costly nonnuclear alternatives would clearly make more sense, ought to be 
98

flagged by an economic competitiveness monitoring 

body qualified to oversee large international energy 

project transactions. Such uneconomic nuclear picks 

(e.g., several proposed Middle Eastern nuclear projects) might also be referred to the IAEA for further 

investigation.13

As a complementary effort, the world’s advanced 

states could work with developing countries to create 

non-nuclear alternatives for addressing their energy 

and environmental needs. In the case of the United 

States, this would simply entail implementing existing law. Title V of the Nuclear Nonproliferation Act 

of 1978 requires the Executive Branch to do analyses 

of key countries’ energy needs and identify how these 

needs might be addressed with nonfossil, non-nuclear energy sources. Title V also calls on the executive 

branch to create an alternative energy cadre to help 

developing nations explore these alternative options. 

To date, no president has chosen to implement this 

law. Some members of Congress have indicated that 

they would like to remedy this omission by requiring Title V country energy analyses (and independent 

assessments of these analyses) to be performed as a 

precondition for U.S. approval of any additional U.S. 

nuclear cooperative agreements.14 As with most of the 

other suggestions already made, the United States can 

act on this idea without waiting for the full development of any international consensus. 
99

ENDNOTES - CHAPTER 5

1. International Panel on Fissile Materials, “Global Fissile 

Materials Report 2008,” October 2008, available from www.ipfmlibrary.org/gfmr08.pdf; and Andrei Chang, “China’s Nuclear 

Warhead Stockpile Rising,” UPIAsia.com, April 5, 2008, available 

from www.upiasia.com/Security/2008/04/05/chinas_nuclear_warhead_

stockpile_rising/7074. 

2. See, e.g., Henry S. Rowen, “This ‘Nuclear-Free’ Plan Would 

Effect the Opposite,” The Wall Street Journal, January 17, 2008. For 

additional technical background, see David Kay, “Denial and 

Deception Practices of WMD Proliferators: Iraq and Beyond,” 

Brad Roberts, ed., Weapons Proliferation in the 1990s, Cambridge, 

MA: MIT Press, 1995; Victor Gilinsky, et al., A Fresh Examination of 

the Proliferation Dangers of Light Water Reactors, Washington, DC: 

NPEC, 2004, available from www.npec-web.org/Essays/20041022-

GilinskyEtAl-lwr.pdf; and Andrew Leask, Russell Leslie, and John 

Carlson, Safeguards As Design Criteria—Guidance for Regulators, 

Canberra: Australian Safeguards and Non-proliferation Office, 

September 2004, available from www.asno.dfat.gov.au/publications/

safeguards_design_criteria.pdf. 

3. Data for this chart was drawn from the Natural Resources 

Defense Council, “Russian Nuclear Forces 2007,” Bulletin of the 

Atomic Scientists, March-April 2007, available from thebulletin.

metapress.com/content/d41x498467712117/fulltext.pdf; and Robert 

S. Norris and Hans M. Kristensen, “U.S. Nuclear Forces, 2008,”

Bulletin of the Atomic Scientists, March-April 2008, available from 

thebulletin.metapress.com/content/pr53n270241156n6/fulltext.pdf.

4. Source: Frank Von Hippel et al., International Panel on Fissile Material, Global Fissile Material Report, 2009, pp. 11, 16, available from www.fissilematerials.org/ipfm/site_down/gfmr09.pdf.

5. Ibid.

6. Graphs developed for NPEC by Sharon Squassoni, available from www.npec-web-org/Frameset.asp?PageType=Projects.

 7. Ibid.
100

8. See, e.g., Robert Einhorn, “Controlling Fissile Materials 

and Ending Nuclear Testing,” Presentation before the International Conference on Nuclear Disarmament, Oslo, Norway, February 26-27, 2008, available from www.ctbto.org/fileadmin/user_upload/pdf/External_Reports/paper-einhorn.pdf.

9. See the Henry J. Hyde, United States-India Peaceful Atomic Energy Cooperation Act of 2006, “Implementation and Compliance Report,” available from frwebgate.access.gpo.gov/cgi bin/

getdoc.cgi?dbname=109_cong_bills&docid=f:h5682enr.txt.pdf.

10. On these points, see Peter Lavoy, “Islamabad’s Nuclear 

Posture: Its Premises and Implementation,” Henry Sokolski, ed., 

Pakistan’s Nuclear Future: Worries beyond War, Carlisle, PA: Strategic Studies Institute, U.S. Army War College, 2008, pp. 129-166; 

and General Feroz Khan, “Reducing the Risk of Nuclear War in 

South Asia,” September 15, 2008, available from www.npec-web.

org/Essays/20090813-khan%20final.pdf.

11. See Section 416 of the House State Authorization Act 

of 2010 and 2011, “Implementation of Recommendations of 

Commission on the Prevention of WMD Proliferation and 

Terrorism,” available from www.govtrack.us/congress/billtext.

xpd?bill=h111-2410.

12. See, e.g., Peter Tynan and John Stephenson, “Nuclear 

Power in Saudi Arabia, Egypt, and Turkey—How Cost Effective?” February 9, 2009, available from www.npec-web.org/

Frameset.asp?PageType=Single&PDFFile=Dalberg-Middle%20

East-carbon&PDFFolder=Essays; Frank von Hippel, “Why Reprocessing Persists in Some Countries and Not in Others: The Costs 

and Benefits of Reprocessing,” April 9, 2009, available from www.

npec-web.org/Frameset.asp?PageType=Single&PDFFile=vonhipp

el%20%20TheCostsandBenefits&PDFFolder=Essays; Doug Koplow, 

“Nuclear Power as Taxpayer Patronage: A Case Study of Subsidies to Calvert Cliffs Unit 3,” available from www.npec-web.org/

Frameset.asp?PageType=Single&PDFFile=Koplow%20-%20Calvert

Cliffs3&PDFFolder=Essays.

13. For more on these points, see Henry Sokolski, “Market 

Fortified Non-proliferation,” Breaking the Nuclear Impasse, New 

York: The Century Foundation, 2007, pp. 81-143, available from 
101

nationalsecurity.oversight.house.gov/documents/20070627150329.

pdf. More on the current membership and investment and trade 

principles of the Energy Charter Treaty and the Global Energy 

Charter for Sustainable Development is available from www.

encharter.org and www.cmdc.net/echarter.html.

14. See Letter from Congressmen Brad Sherman, Edward 

Markey, and Ileana Ros-Lehtinen to Secretary of State Hillary 

Clinton, April 6, 2009, available from bradsherman.house.gov/pdf/

NuclearCooperationPresObama040609.pdf.
102
103

PART IV

THE NUCLEAR NONPROLIFERATION TREATY

AND NUCLEAR SAFEGUARDS—ARTICLE III
104
105

CHAPTER 6

PEACEFUL NUCLEAR ENERGY

AND THE NUCLEAR NONPROLIFERATION 

TREATY*

Eldon V. C. Greenberg

The variety of formulations written into Article 

I and II restricting transfer of and access to nuclear 

weapons and other nuclear explosive devices must 

be read to mean that the Treaty negotiators intended, 

to the maximum extent possible, that the Nuclear 

Nonproliferation Treaty’s (NPT) restrictions would 

halt proliferation by any means.1

 In Article I, nuclear 

weapon states, after making their basic nontransfer 

pledge, undertake “not in any way to assist, encourage 

or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or nuclear 

explosive devices, or control over such weapons or 

explosive devices.” In Article II, non-nuclear weapon states party to the NPT, after making their basic 

nonreceipt pledge, undertake “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.” The reach of these 

prohibitions, particularly those in Article I, is poten-

____________

*Taken from “Application of NPT Prohibitions To ‘Civilian’ 

Nuclear Equipment, Technology and Materials Associated with 

Reprocessing and Plutonium Use,” 9th in the Nuclear Control 

Institute’s “NPT/95” series “NPT at the Crossroads: Issues 

Bearing on Extending and Strengthening the Treaty,” 1993. The 

chapter has been edited slightly for consistency with material 

elsewhere in the present book.
106

tially to any activity designated as “nuclear” since, as 

Mason Willrich has pointed out, “[a]lmost any kind of 

international nuclear assistance is potentially useful 

to a nuclear weapons program.2

Squared against Articles I and II is equally expansive language in Article IV. Article IV speaks of an “inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for 

peaceful purposes. . . .” Hypothetically, any nuclear 

energy application denominated as “peaceful” would 

escape the prohibitions of Articles I and II. Indeed, it 

has sometimes been suggested that Article IV reflects 

a “straightforward bargain” in the Treaty, with the 

weapon states trading nuclear economic benefits to 

nonweapon states in exchange for the enhanced security provided to weapon states under Articles I and II.3

But clearly it makes no sense to interpret Article IV in 

such a fashion, for to do so would be to undercut the 

fundamental purpose of the Treaty to halt proliferation, primarily through the prohibitions of Articles I 

and II.

The key to the harmonization of Articles I and II 

with Article IV lies in the connecting language found 

in Article IV, para. 1, “in conformity with.”4 It is possible to read this phrase as meaning no more than the 

obvious, namely, that a weapon state cannot transfer 

to a nonweapon state or assist such a state in obtaining a weapon or other nuclear explosive device as 

such and, by the same token, a nonweapon state cannot manufacture or otherwise obtain such a weapon 

or device on its own or with the assistance of others. 

This, in fact, has been the “unexceptional” interpretation put on the language by several commentators.5

In such a reading of the NPT, the phrase is simply 

necessary because, if there were not a cross-reference 
107

to Articles I and II in Article IV, then the provisions 

could indeed be read in a conflicting manner. For 

example, a party could transfer or acquire a nuclear 

explosive device for allegedly peaceful purposes, and 

claim in so doing that it was merely acting consistently within its “inalienable right” under Article IV. 

The cross-reference language in Article IV, para. l, assures that this cannot be done, but accomplishes no 

more. Under such a formal reading of the Treaty, Article IV would be subject to the obligations of Articles 

I and II only insofar as the transfer and acquisition of 

nuclear weapons or nuclear explosive devices as such 

were concerned. All other nuclear energy applications 

would be permissible. In effect, the Treaty would be 

read through an exclusively “explosives lens.”

The implications, however, of this connecting language can be read more broadly. At some point, particular assistance or activities may become so risky, 

even though they do not involve the transfer and acquisition of weapons or explosives as such, that they 

can no longer be deemed in conformity with the requirements of Articles I and II, even though by their 

stated terms they are for peaceful power applications 

only. Under such a “pragmatic” reading of the Treaty, 

the “inalienable right” in Article IV, para. l, and the 

obligation to “facilitate,” and the “right to participate” 

in Article IV, para. 2, remain subordinate to the prohibitions of Articles I and II, if the practical consequences of the assistance or activity, whether its purpose is 

denominated peaceful or not, are likely to lead to the 

proliferation of nuclear weapons. In short, there may 

be activities other than final assembly and production 

of a “bomb,” “warhead,” or other nuclear explosive 

“device” covered by the prohibitions of Article I and II.

Such an approach makes complete sense in light 
108

of the overall purpose of the NPT to halt proliferation. 

If 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 Treaty 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 11.6

 Only in this way can 

there be any assurance that the NPT’s objectives will 

be achieved.

The case for a pragmatic reading of the NPT is well 

stated in a 1979 report by Albert Wohlstetter and others to ACDA:

Now Article IV of the NPT refers to the undertaking 

by all parties to the Treaty “to facilitate” and the right 

of all parties “to participate in the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear 

energy.” Indeed, it refers to such rights to the peaceful 

pursuit of nuclear energy, in the language of 18th century natural law, as “inalienable.” The contention was 

made by many of the delegates to the Iran Conference 

on Transfer of Nuclear Technology at Persepolis in the 

spring of 1977 that this “inalienable right” includes the 

stocking of plutonium or other highly concentrated fissile material and was therefore violated by President 

Carter’s proposal to delay commitment to unrestricted 

commerce in plutonium. 

* * * * *

However, Article IV explicitly states that the inalienable right of all parties to the Treaty to the peaceful use 

of nuclear energy has to be in conformity with Articles 

I and II, and it is these Articles that are what make the 

Treaty a treaty against proliferation. In Article I the 
109

nuclear weapons states promise not to transfer or “in 

any way to assist, [or] encourage . . . any nonnuclear 

weapons state to manufacture” nuclear explosives. If 

the “fullest possible exchange” were taken to include 

the provision of stocks of highly concentrated fissile 

material within days or hours of being ready for incorporation into an explosive, this would certainly “assist” an aspiring nonnuclear weapons state in making 

such an explosive. No reasonable interpretation of the 

Nonproliferation Treaty would say that the Treaty intends, in exchange for an explicitly revocable promise 

by countries without nuclear explosives not to make 

or acquire them, to transfer to them material that is 

within days or hours of being ready for incorporation 

in a bomb. Some help and certainly the avoidance of 

arbitrary interference in peaceful uses of nuclear energy are involved. However, the main return for promising not to manufacture or receive nuclear weapons 

is clearly a corresponding promise by some potential adversaries, backed by a system to provide early 

warning if the promises should be broken. The NPT is, 

after all, a treaty against proliferation, not for nuclear 

development.7

As Arthur Steiner wrote in a supporting paper, rejecting the notion of the NPT as a simple, “straightforward bargain”: 

Such an interpretation could be taken to imply that, in 

exchange for an absolute renunciation of the right to 

acquire nuclear explosive devices, non-weapons states 

have the absolute right to receive any and all nuclear 

assistance short of the provision, by outside aid or by 

their own efforts, of nuclear explosive devices. This 

interpretation is dubious, for the common sense interpretation of the Treaty, as well as the explicit text of 

Article IV, is that the latter is subordinate to, and to 

be interpreted in conformity with Articles I and II. It 

is, after all, a nonproliferation treaty. The provision of 

certain types of nuclear technology that defeat the objective of nonproliferation by bringing a non-weapons 
110

state recipient within days or hours of a weapon, cannot be an objective toward a nonproliferation treaty.8

To sum up, it is most appropriate to read Articles 

I and II in light of the recognition that there is a spectrum of activity relating to nuclear weapons, ranging 

from basic to theoretical physics at one end to the final 

production, assembly, and deployment of operational 

weapons at the other, and that there is a need to apply 

the Treaty at the right point and in the right circumstances to prevent weapons proliferation. Articles I 

and II should be understood as intended to cover not 

just the transfer and acquisition of a bomb, but also 

technology transfer or other kinds of assistance or 

independent activities in nonweapon states short of 

final production and assembly of a weapon which, as 

a practical matter, would mean that such state would 

have the bomb. By the same token, the rights and obligations in Article IV must be read in a limited fashion, 

so as to exclude the possibility that such a result could 

occur in the name of fulfilling such obligations or exercising Treaty rights.

THE HISTORY OF THE NPT

Several elements of the history of the NPT tend to 

support the case for a pragmatic reading of the Treaty. 

These include: (1) the efforts of the negotiators to establish a comprehensive, loophole-free agreement primarily aimed at enhancing security; (2) the assumptions of the negotiators with respect to the economics 

of certain “Power” applications; (3) the negotiators’ 

expectations concerning the role of safeguards; and 

(4) the recognition of the negotiators that per se rules 

(i.e., generalized rules applied without consideration 
111

for specific circumstances) concerning permissible activities or assistance were inappropriate.

A Comprehensive, Loophole-Free Treaty to

Enhance Security.

From the outset, it was understood that assistance and activities subject to the Treaty’s restrictions 

would have to be broadly defined if the Treaty were 

to be effective. Thus, the so-called “Irish Resolution” 

of the United Nations (UN) General Assembly, which 

launched the negotiations in December 1961, called 

upon all nations to reach an agreement under which 

weapon states would refrain, inter alia, “from transmitting the information necessary for [nuclear weapons] 

manufacture to States not possessing such weapons,” 

and nonweapon states would agree “not to manufacture or otherwise acquire control of such weapons.”9

As the negotiations got underway, the explicit goal 

of the negotiating parties, as set down by the UN General Assembly, was to develop an agreement “void of 

loop-holes which might permit nuclear or non-nuclear Powers to proliferate, directly or indirectly, nuclear 

weapons in any form.”10 The emphasis in General 

Assembly Resolution 2028 on restricting the spread 

of nuclear weapons “directly or indirectly” and “in 

any form” would appear to reflect an understanding 

that proliferation under the guise of peaceful power 

applications should be treated no differently than unabashed and explicit weapons proliferation.11

While some have suggested that the non-nuclear 

weapon states were simply looking for economic benefits (to be embodied in Article IV), not security enhancement, in negotiating the NPT,12 the better view 

is that security concerns of all the parties were among 
112

the primary motivating factors leading to conclusion 

of the NPT.13 Consequently, one can conclude, “Given 

the officially expressed primary importance of national security questions to the majority of the nations of 

the world in their appraisal of the NPT, it would be 

surprising indeed if very many of them wanted their 

potential adversaries to be in a position to possess 

nuclear weapons in a matter of days or even hours.”14

Assistance and activities which would put potential 

adversaries in precisely such a position cannot therefore be subject to any obligation or right in Article IV.

Finally, at several points during the negotiation of 

the NPT, proposals which would have expanded the 

duty of weapon states to aid nonweapon states to develop peaceful applications of nuclear energy were rejected. Mexico, for example, proposed an amendment 

to Article IV, para. 2, to establish an explicit “duty” 

to aid which was defeated.15 And in the final debates 

at the UN Eighteen Nation Disarmament Committee 

(ENDC), the Spanish delegation proposed that Article IV “refer specifically to the entire technology of 

reactors and fuels,”16 but this amendment, too, was 

rejected. Such history leads to a simple conclusion: “It 

seems quite clear . . . that it was not the intent of the 

framers of the NPT to create an obligation to supply 

any and all forms of nuclear energy with a single exception of actual explosive devices.”17

The logic of the NPT does not support the idea that 

either weapons or nonweapons states wish to have 

their security reduced by unrestricted commerce in 

especially dangerous forms of nuclear energy. The 

history of the negotiations leading to the NPT shows 

that several attempts to make the provision of all 

types of nuclear energy an obligation were considered 

and rejected. The evidence is overwhelming that the 
113

“straightforward bargain” is a dangerous myth.18

Assumptions Concerning Economic Viability.

The NPT was also premised upon certain assumptions with respect to the economic (and presumably 

technical) merit of nuclear power applications. Indeed, the negotiators’ views might best be characterized as reflecting hopes for rather than assumptions 

about the future of nuclear energy. To the extent those 

hopes have been dashed, the operation of the Treaty 

should be different than originally anticipated.

There is no question that during the course of the 

negotiation of the NPT the parties, reflecting the conventional wisdom of the day,19 considered that civilian reprocessing and plutonium recycling, first for 

conventional reactors and then for breeders, would 

someday be a normal part of any nation’s nuclear fuel 

cycle. The U.S. representatives to the ENDC, for example, repeatedly indicated that permissible transfers 

under the NPT would include equipment for “processing” and “production” of fissionable material, as well 

as for the “use” of such material.20 The UN General 

Assembly, in considering the final Treaty document 

and commending it to member states for ratification, 

specifically stated that it was:

Convinced that, pursuant to the provisions of the Treaty, all signatories have the right to engage in research, 

production and use of nuclear energy for peaceful 

purposes and will be able to acquire source and special fissionable materials, as well as equipment for the 

processing, use and production of nuclear material for 

peaceful purposes.21

That the Treaty parties’ understandings related to expectations, not absolute guarantees, however, is made 
114

clear by the history of the NPT before the United 

States Congress.22 Thus, in hearings before the Senate Foreign Relations Committee in 1968, Glenn Seaborg, Chairman of the Atomic Energy Commission, 

spoke of his expectations about future uses of plutonium.23 Other witnesses in their statements likewise 

spoke, for example, of “look[ing] forward to a world 

in which plutonium will be readily available in very 

large quantities in all industrially advanced states 

and in many developing states.”24 These expectations, 

presumably premised on anticipated, real economic 

needs, have, as pointed out above,25 largely proven to 

be false. In such circumstances, the Treaty should not 

be interpreted as creating an obligation to facilitate or 

a right to participate in reprocessing and plutonium 

use. To the contrary, it is more appropriate to view 

the Treaty as creating the presumption today that 

assistance or activities relating thereto have more to 

do with weapons than with peaceful purposes and, 

therefore, generally would fall within the prohibitions 

of Articles I and II.26

Expectations Concerning the Role of Safeguards.

Even if it were the case that a particular nuclear 

application had no reasonable economic or technical 

justification, it might be argued that where it is subject 

to safeguards, the application should still be permissible under the Treaty.27 After all, it may be contended, the Treaty itself provides a mechanism, if there 

is any doubt, to determine whether the assistance or 

activity is permissible or not. In the words of Mason 

Willrich, “[T]he application of safeguards to all peaceful nuclear assistance to non-nuclear weapon states, 

as required by Article III, provides a way to establish 
115

and clarify the peaceful purpose of most international 

nuclear assistance.”28

Yet there is another way to interpret the NPT. The 

NPT negotiators contemplated that safeguards had 

more than a merely formal role to play. If that role 

cannot be effectively fulfilled with respect to particular assistance or activities, then perhaps, in the presence of other factors (e.g., risk or lack of economic viability), such forms of assistance or activities should 

fall within the Treaty’s prohibitions.

The stated “exclusive” purpose of the safeguards 

system provided for in Article III is for “verification

of the fulfillment of [a party’s] obligations assured 

under this Treaty with a view to preventing diversion 

of nuclear energy from peaceful purposes. . . .”29 As 

ACDA Deputy Director Fisher stated to the ENDC 

in January of 1968, “[T]he safeguards article . . . will 

verify important treaty obligations and thereby serve 

as an important instrument for reducing tensions and 

increasing trust.”30 Likewise, in describing the Treaty 

to the UN General Assembly, Ambassador Arthur 

Goldberg emphasized in April 1968 that “safeguards 

 . . . have but one function: to verify the treaty obligation that nuclear material shall not be diverted to nuclear weapons. . . .”31 If the verification function cannot 

be performed, the legitimacy of the particular form of 

assistance or activity to which the safeguards cannot 

be effectively applied must become dubious. 

During the course of congressional deliberations 

on the NPT, it was made clear that, in evaluating 

the Treaty, congressional assumptions related to the 

future, not the present, effectiveness of safeguards. 

Critics of the NPT made much of the absence of effective safeguards in 1968 and 1969. Thus, for example, Congressman Craig Hosmer stated, “Neither 
116

the IAEA [International Atomic Energy Agency] nor 

anyone else has the remotest notion what constitutes 

a normal loss of uranium or plutonium in the peaceful 

industrial process. Therefore, there is not the slightest possibility of any inspectors spotting illegal diversions because they can’t even be told when their suspicion should be aroused.”32 Supporters of the NPT 

responded to such criticisms by stating essentially 

that the United States had “confidence that the IAEA, 

by building upon its solid, though modest, foundation 

of experience in the field of safeguards, will be able 

to carry out the increased responsibilities assigned to 

it by the treaty.”33 Even the strongest supporters of 

the NPT recognized, however, that for the system to 

work, safeguards would have to be improved.34 The 

Senate Foreign Relations Committee, which produced 

two reports on the Treaty,35 while expressing doubts 

about the current effectiveness of safeguards, sided 

with the optimists and opted for the assumption that 

safeguards would work in the future. Thus, the Committee’s reports, after acknowledging the arguments 

concerning the pros and cons of the IAEA safeguards 

system in 1968 and 1969, stated:

Admittedly, the implementation of the treaty raises 

uncertainties. The reliability and thereby the credibility of international safeguards systems is still to be 

determined. No completely satisfactory answer was 

given the committee on the effectiveness of the safeguards systems envisioned under the treaty. Moreover, the committee was not given a completely satisfactory answer as to what the signatory nations will 

do if the International Atomic Energy Agency fails to 

work out mutually satisfactory agreements with individual states or associations of States within the time 

prescribed by the treaty. The committee hopes that the 

optimism of the administration will be borne out and 
117

that successful agreements with the IAEA will be concluded without difficulty or delay. Nevertheless, the 

committee notes that the Euratom States have unanimously agreed that the treaty will only be ratified after 

a satisfactory verification agreement has been reached 

between Euratom and the IAEA.

The committee is fully aware of the potential problems 

in the safeguards field. But it is equally convinced that 

when the possible problems in reaching satisfactory 

safeguards agreements are carefully weighed against 

the potential for a worldwide mandatory safeguards 

system, the comparison argues strongly in favor of the 

present language of the treaty.

The committee concludes that the treaty is in the best 

interest of the United States. The committee is mindful, however, that this treaty is certainly no cure-all 

for the problems of nuclear proliferation. The success 

of the agreement will depend on its wide acceptance 

particularly by those countries with the national capability to manufacture nuclear weapons. Success will 

also depend on the acceptance and credibility of the 

safeguards provisions.36

Finally, the Senate debates on the NPT confirm 

that ratification was premised upon assumptions with 

respect to future effectiveness of safeguards. Thus, for 

example, Senator Fulbright, Chairman of the Foreign 

Relations Committee, noted that the credibility and 

reliability of agency safeguards were still to be determined, but that he was satisfied that in the future the 

IAEA would be able to accomplish its tasks.37 Likewise, other Treaty supporters, such as Senator Evan 

Bayh, expressed the view that, while the IAEA might 

have shortcomings in 1969, these “could be remedied 

by appropriate increases in manpower, funding and 

applied research.”38

Given the serious questions which exist concern-
118

ing the ability to safeguard effectively now or in the 

foreseeable future certain forms of assistance and 

activities, such as those related to reprocessing and 

plutonium recycling,39 it is reasonable to conclude 

that the contemplated verification function of Article 

III cannot be fulfilled today. The IAEA’s lack of authority to “prevent” diversions of weapons-usable 

plutonium, despite the provisions of Article III, para. 

l, fortifies this conclusion. Therefore, if other factors, 

e.g., risk or lack of economic or technical justification, 

are also present, the presumption should again arise 

that the particular assistance or activity runs afoul of 

the prohibitions of Articles I and II.

Recognition of the Inappropriateness of 

Per Se Rules Concerning Permissible Assistance 

or Activities.

As noted above, there is some NPT negotiating history which might be interpreted as standing for the 

proposition that any safeguarded, “controlled fission” 

applications are per se outside the prohibitions of Articles I and 11.40 Yet, consistent with its nonproliferation purposes, the NPT creates no per se rules with 

respect to acceptable uses and, indeed, allows a pragmatic interpretation of its prohibitions.

That this is the case was made clear during Senate consideration of the NPT. During the 1968 Senate 

hearings, Senator Case asked Secretary of State Rusk, 

“Where do you draw the line between a nuclear explosive device and something in which a non-nuclear 

nation may work in research and development under 

another provision of the treaty?”41 Both Secretary of 

State Dean Rusk and ACDA Director William Foster 

initially indicated in response that work on anything 
119

which would lead to “an uncontrolled nuclear reaction available to non-nuclear weapon states” would 

be prohibited.42 Mr. Foster then submitted for the record the following detailed response:

The treaty articles in question are Article II, in which 

non-nuclear-weapon parties undertake “not to manufacture or otherwise acquire nuclear weapons or other 

nuclear explosive devices,” and Article IV, which provides that nothing in the Treaty is to be interpreted as 

affecting the right of all Parties to the Treaty “to develop research, production and use of nuclear energy for 

peaceful purposes ... in conformity with Articles I and 

II of this Treaty.” In the course of the negotiation of the 

Treaty, United States representatives were asked their 

views on what would constitute the “manufacture” of 

a nuclear weapon or other nuclear explosive device 

under Article II of the draft treaty. Our reply was as 

follows:

While the general intent of this provision seems clear, 

and its application to cases such as those discussed below should represent little difficulty, the United States 

believes it is not possible at this time to formulate a 

comprehensive definition or interpretation. There are 

many hypothetical situations which might be imagined and it is doubtful that any general definition or 

interpretation, unrelated to specific fact situations 

could satisfactorily deal with all such situations.43

Some general observations can be made with respect to the question of whether or not a specific activity constitutes prohibited manufacture under the 

proposed treaty. For example, facts indicating that 

the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show 

noncompliance. (Thus, the construction of an experimental or prototype nuclear explosive device would 

be covered by the term “manufacture” as would be 
120

the production of components which could have relevance only to a nuclear explosive device.) Again, 

while the placing of a particular activity under safeguards would not, in and of itself, settle the question 

of whether that activity was in compliance with the 

treaty, it would of course be helpful in allaying any 

suspicion of noncompliance.

It may be useful to point out, for illustrative purposes, several activities which the United States would 

not consider to be per se violations of the prohibitions 

in Article II. Neither uranium enrichment nor the 

stockpiling of fissionable material in connection with 

a peaceful program would violate Article II so long 

as these activities were safeguarded under Article III. 

Also clearly permitted would be the development, 

under safeguards, of plutonium fuel power reactors, 

including research on the properties of metallic plutonium, nor would Article I contravene the development 

or use of fast breeder reactors under safeguards.44

At first blush, the Foster statement might be taken 

to indicate that any number of risky activities—e.g., 

“uranium enrichment,” “stockpiling of fissionable 

material,” “development . . . of plutonium fuel power 

reactors,” or “research on the properties of metallic 

plutonium”—would be permissible as long as they 

were “safeguarded.” However, the real thrust of the 

Foster statement is different. First, Foster notes that if 

“facts indicated that the purpose of a particular activity was the acquisition of a nuclear explosive device,” 

then that activity may well be considered not in compliance with the Treaty. As noted above, where there 

is no reasonable economic or technical justification 

for an assertedly peaceful use, then a presumption 

should arise that the purpose is not legitimate under 

the NPT. At the same time, while there are repeated 
121

references to safeguards, Foster stresses that “the placing of a particular activity under safeguards would 

not, in and of itself, settle the question of whether the 

activity was in compliance with the Treaty.” In other 

words, there is not a per se rule that application of 

safeguards alone means that Articles I and II do not 

apply. Finally, Foster’s references to various activities which might be permissible under safeguards are 

preceded by the remark that the United States simply 

“would not consider [such activities] per se to be violations of the prohibitions in Article II.”45 The Foster 

statement thus plainly leaves open the possibility that 

such activities could be considered violations of the 

NPT’s prohibitions, if, for example, they were not for a 

legitimate purpose or if there were evidence that safeguards could not be effectively applied.

CONCLUSION

Adrian Fisher, one of the chief U.S. NPT negotiators, stated several years after the Treaty’s ratification 

that the NPT “does not require us to do something 

foolish.”46 Another way of putting it is that the NPT 

must not be read as requiring actions which may increase, rather than reduce, the risk of proliferation. 

At the same time, given the lessons learned from 

past proliferation—particularly India’s development 

of a nuclear explosive device utilizing the facilities 

purportedly dedicated to its “peaceful” civilian programs—it would, in interpreting the NPT’s restrictions, seem appropriate to err on the side of caution or 

restraint and apply such restrictions to facilities and 

materials which pose unacceptable proliferation risks 

with no reasonably discernible civilian nuclear power 

benefits now or in the foreseeable future.47
122

To accomplish this result, the distinction between 

permissible and impermissible activities must come 

down ultimately to quite pragmatic considerations. 

Activities must not be considered free from the Treaty’s prohibitions just by virtue of being denominated 

“peaceful,” “civilian,” “power,” or “research.” The 

Treaty must be interpreted as viewing proliferation 

through something more than an “explosives lens.” 

Rather, depending upon the facts and circumstances, 

assistance and activities relating to declared “peaceful,” “civilian,” “power,” or “research” purposes may 

be subject to the NPT’s restrictions if an evaluation of 

all the facts and circumstances, including such factors 

as economic or technical justification or effectiveness 

of safeguards, would indicate that the legitimacy of 

the assistance and/or activity is questionable. Such 

a pragmatic, rather than a formalistic reading of the 

Treaty, is most consistent with its overriding purpose 

of stemming the proliferation of nuclear weapons.

In the specific case of reprocessing and plutonium 

use—given the risks, economic and technical questions, and safeguards weaknesses associated therewith—it is appropriate to conclude today that assistance (and/or indigenous activities relating thereto) in 

non-weapon states should generally be exempt from 

the obligation to “facilitate” and the “right to participate” in Article IV of the NPT and should instead fall 

within the scope of the prohibitions of Articles I and 

II of the NPT.

ENDNOTES - CHAPTER 6

1. As one commentator has stated, “The prohibitive sense of 

the words ‘any’, ‘whatsoever’, and ‘otherwise’ allows no exception.” Shaker, The Nuclear Non-Proliferation Treaty, 1980, p. 235. 
123

2. Mason Willrich, The Treaty on Non-Proliferation of Nuclear Weapons: Nuclear Technology Confronts World Politics, Yale 

Law Journal, Vol. 77, No. 8, (July 1968), pp. 1447-1519, p. 1447.

3. See, e.g., The Times (London), March 23, 1978, reporting 

on the decision of Mr. Justice Parker in the British inquiry into 

reprocessing at the Windscale facility. 

4. While the phrase “in conformity with” appears only in 

Article IV, para. I, it would also seem to modify the rights and 

obligations set forth in Article IV, para. 2. If the right to develop 

peaceful uses of nuclear energy is subject to Articles I and II, so, 

too, must be the obligation to “facilitate” and the “right to participate” in peaceful applications of atomic energy. Otherwise, 

Article IV, para. 2, would be in potential opposition to the restrictions of Articles I and II.

5. Willrich, Non-Proliferation Treaty: Framework for Nuclear 

Arms Control 127, l969; Willrich, The Treaty on Non-Proliferation 

of Nuclear Weapons; Shaker, The Nuclear Non-Proliferation Treaty.

6. Likewise, as noted above, if there is a known or reasonably 

suspected intent to divert, Treaty prohibitions should come into 

play. 

7. Wohlstetter et al., Towards a New Consensus on Nuclear Technology, ACDA Report No. PH-78-04-832-13, July 6, 1979, pp. 34-35. 

The same report goes on to state:

If, in fact, technological transfers can bring a “nonnuclear weapon state” within weeks, days or even 

hours of the ability to use a nuclear explosive, in the 

operational sense that “nonnuclear weapon state” will 

have nuclear weapons. The point is even more fundamental than the fact that effective safeguards mean 

timely warning. A necessary condition for having 

timely warning is that there be “a substantial elapsed 

time. But if there is no substantial elapsed time before 

a government may use nuclear weapons, in effect it 

has them. pp. 36-37.

8. Steiner, “Article IV and the ‘Straightforward Bargain’” 
124

(PAN Paper 78-832-08), in ibid., Vol. II (Supporting Papers).

9. G. A. Res. 1665 (XVI), December 4, 1961.

10. G. A. Res. 2028 (XX) (Nov. 19, 1965), reprinted in ACDA, 

Documents on Disarmament, 1965, pp. 532-534.

11. There is. It should be noted that some contrary indication 

that the Treaty negotiators considered that power applications 

were quite distinguishable from weapons or explosives uses and 

therefore permissible, with little limitation, under the Treaty. 

Thus, ACDA Director Foster, in describing U.S. proposals to the 

First Committee of the General Assembly, on November 9, 1966, 

stated, “[P]eaceful applications of energy derived from controlled 

and sustained nuclear reactions—that is, reactions stopping far 

short of explosions, in the exact use of that term—have nothing 

to do with nuclear weapons. Development work relating to such 

controlled and sustained nuclear reactions would not—I repeat: 

would not—be affected by having the prohibitions of a non-proliferation treaty also encompass peaceful nuclear explosives.” 

A/C.I/PV.1448, reprinted in ACDA, Documents on Disarmament, 

1966, p. 721. Likewise, Secretary of State Rusk’s characterization 

of the Treaty, adopted by the Senate Foreign Relations Committee, as “dealing only with what is prohibited . . . [:] bombs and 

warheads . . . [and] other nuclear explosive devices. . . .” might be 

taken in the same vein. See Hearings on the Treaty on the NonProliferation of Nuclear-Weapons before the Senate Foreign Relations Committee, 90th Cong., 2d Sess. 5 (1968) (Statement of 

Secretary of State Rusk) (hereinafter 1968 Hearings); S. Ex. Rep. 

No. 9, 90th Cong., 2d Sess. (1968), reprinted in ACDA, Documents 

on Disarmament, 1968, pp. 642, 644 (hereinafter 1968 Senate Report); S. Ex. Rep. No. 91-9, 91st Cong., 1st Sess. (1969), reprinted 

in ACDA, Documents on Disarmament, 1969, pp. 78, 80 (hereinafter 1969 Senate Report).

12. Eldon V. C. Greenberg, The NPT and Plutonium, Washington, DC: Nuclear Control Institute, 1993, p. 18.

13. See e.g., Steiner, “Article IV and the ‘ Straightforward 

Bargain’” (PAN Paper 78-832-08), in Wohlstetter, et al., Towards a 

New Consensus on Nuclear Technology, Vol. II (Supporting Papers) 

ACDA Report No. PH-78-04-832-33, July 6, 1979. See also Jensen, 
125

Return From the Nuclear Brink: National Interest in the Nuclear Nonproliferation Treaty, 1974, pp. 1-2, 129, 133.

14. Ibid.

15. See Statement of the Representative of Mexico to 

the ENDC, September 17, 1967, ENDC/PV.331, reprinted in 

ACDA, Documents on Disarmament, 1967, pp. 395, 397-398. For 

a general discussion of this proposed amendment, see Willrich, 

Non·Proliferation Treaty: Framework for Nuclear Arms Control, 1969, 

pp. 131-132.

16. See Spanish Memorandum to the ENDC Co-Chairmen, 

February 8, 1968, ENDC/PV.361, reprinted in ACDA, Documents 

on Disarmament, 1968, pp. 39-40.

17. Steiner, “Article IV and the ‘Straightforward Bargain’” 

(PAN Paper 78-832-08), in Wohlstetter, et al., Towards a New Consensus on Nuclear Technology, Vol. II (Supporting Papers) (ACDA 

Report No. PH-78-04-832-33), July 6, 1979.

18. Ibid.

19. Greenberg, p. 7.

20. E.g., Statement of ACDA Deputy Director Fisher to the 

ENDC, July 28, 1966, ENDC/PV.277, reprinted in ACDA, Documents on Disarmament, 1966, pp. 483-485.

21. G.A.Res. 2373 (XXII), June 12, 1968, reprinted in ACDA, 

Documents on Disarmament, 1968, pp. 431-432.

22. In its discussion of the history of the NPT, this memorandum occasionally relies upon the record of consideration of the 

Treaty by the U.S. Senate in 1968 and 1969. While in some sense 

this is post facto legislative history, coming after completion of the 

negotiations, nonetheless the comments made on the Treaty during Senate deliberations generally reflect interpretations reached 

by the negotiating parties and are most helpful in illuminating 

the intent of the Treaty.

23. 1968 Hearings, pp. 98, 120.
126

24. Ibid., p. 212 (Statement of Mason Willrich).

25. Greenberg, pp. 7-11.

26. It is, of course, sometimes argued that, even if economic 

justification is lacking, reprocessing and plutonium use can be rationalized on a civilian basis as necessary to achieve “energy independence” or “energy security” or as a tool to manage nuclear 

waste. See Hearings before the Subcommittees on Arms Control 

International Security and Scientific Affairs and on International 

Economic Policy and Trade of the House Foreign Affairs Committee on Plutonium Use Policy, 99th Cong., 1st Sess., July 24, 

1985, Statement of Ambassador-At-Large Richard T. Kennedy. 

However, the former ground is far too subjective a benchmark 

upon which to rely in determining what constitutes permissible 

assistance or activities under the NPT—virtually anything can 

be justified in the name of “energy independence”—while the 

latter ground has been repeatedly shown to be without technical 

merit. See Feiveson and von Hippel, “Nuclear Energy Without 

Reprocessing,” Paper presented at the Soviet-U.S. Symposium. 

on Energy Conservation, Institute for High Temperatures,” Soviet Academy of Sciences, Moscow, June 6, 1985.

27. There is, it should be noted, some negotiating history to 

the effect that the NPT simply establishes a bright line between 

safeguarded and unsafeguarded activities and, “if the activity is 

safeguarded and ostensibly for peaceful purposes,” then it is “in 

conformity with” Articles I and II. Thus, the Dutch Representative to the General Assembly stated in May 1968:

My delegation interprets article I of the draft treaty to 

mean that assistance by supplying knowledge, materials and equipment cannot be denied to non-nuclearweapon States until it is clearly established that such 

assistance will be used for the manufacture of nuclear 

weapons or other nuclear devices. In other words, in 

all cases where the recipient parties to the Treaty have 

conformed with the provisions of Article III, there 

should be a clear presumption that the assistance rendered will not be used for the manufacture of nuclear 

weapons and other explosive devices. 
127

A/C.1/PV.1561, reprinted in ACDA, Documents on Disarmament, 1968, pp. 295-296. The Dutch position was endorsed by 

the Belgians and Luxembourgers. Ibid. Similarly, the Australians 

emphasized that “knowledge, materials and equipment [cannot] 

be denied . . . until it is clearly established that such activity or 

supply will be used for the manufacture of nuclear weapons or 

other nuclear explosive devices.” Statement by the Australian 

Representative to the General Assembly, May 17, 1968, A/C.1/

PV.1570, reprinted in ACDA, Documents on Disarmament, 1968, 

pp. 362-366. In fact, the U.S. Ambassador to the UN, Arthur 

Goldberg, stressed to the General Assembly that virtually nothing could be denied under the Treaty, unless it was clearly for 

weapons purposes:

The whole field of nuclear science associated with electric power production is accessible now, and will become more accessible under the Treaty, to all who seek 

to exploit it. This includes not only the present generation of nuclear power reactors, but also that advanced 

technology, which is still developing, of fast breeder 

power reactors which, in producing energy, also produce more fissionable material than they consume.

Statement of Arthur Goldberg to the First Committee of the 

General Assembly, May 15, 1968, A/C.1/PV.1568, reprinted in 

ACDA, Documents on Disarmament, 1968, pp. 336, 344.

28. Willrich, The Treaty on Non-Proliferation of Nuclear Weapons: Nuclear Technology Confronts World Politics. See also Shaker, 

The Nuclear Non-Proliferation Treaty. Even under this formulation, 

it might be noted, where there is assistance to a non-NPT party in 

the absence of full-scope safeguards, facility-specific safeguards 

alone would not be enough to establish definitively a peaceful 

purpose.

29. NPT, Article III, para. l (emphasis added).

30. 77 ENDC/PV.357, reprinted in ACDA, Documents in Disarmament, 1968, pp. 11, 14 (emphasis added).

31. Statement of Ambassador Goldberg to the General Assembly, April 26, 1968, A/C.1/PV.l556, reprinted in ACDA, Doc-
128

uments on Disarmament, 1968, pp. 221,226.

32. 1968 Hearings, p. 164.

33. Statement of Glenn Seaborg, Chairman, Atomic Energy 

Commission, in Hearings on the Treaty on the Non-Proliferation 

of Nuclear Weapons before the Senate Foreign Relations Committee, 9lst Cong., 1st Sess. 313, 1969.

34. E.g., Statement of Glenn Seaborg in 1968 Hearings, pp. 

99-100. See also Statement of Congressman Chet Holifeld, in ibid., 

p. 155, “[S]afeguards have not as yet been developed to the point 

that I am satisfied.”

35. There are two Senate reports on the NPT because, while 

the Senate Foreign Relations Committee approved the Treaty in 

1968, the 90th Congress did not act upon it before its term expired. Thus, when the 91st Congress convened in 1969, it was 

necessary for the Committee to consider the NPT once again.

36. 1968 Senate Report, reprinted in ACDA, Documents on 

Disarmament, 1968, pp. 642, 656 (emphasis added). See also 1969 

Senate Report. reprinted in ACDA, Documents on Disarmament, 

1969, pp. 78, 95-96.

37. 115 Cong. Rec. 5739, March 10, 1969.

38. 115 Cong. Rec. 6207-6208, March 12, 1969.

39. Greenberg, pp. 11-13.

40. Ibid., pp. 17, 25, 50.

41. 1968 Hearings, p. 38.

42. Ibid., p. 39.

43. Ibid.

44. Ibid.

45. Ibid.
129

46. See Hearings on S.1439 before the Senate Committee on 

Government Operations, 94th Cong., 2d Sess. 141, 1976.

47. Such risks include not only “overt proliferation” by a nation determined to exercise a weapons option, but “latent proliferation” by a nation with no weapons intent today but which, 

through the accumulation of large stocks of separated plutonium, may acquire the means rapidly to manufacture weapons in 

the future in a time of regional or global crisis.
130
131

CHAPTER 7

SPREADING THE BOMB

WITHOUT QUITE BREAKING THE RULES (1976)*

Albert Wohlstetter

The basic problem in limiting the spread of nuclear 

weapons is that in the next 10 years or so, many countries, including many agreeing not to make bombs, 

can come within hours of a bomb without plainly violating their agreement―without “diverting” special 

nuclear material and, therefore, without any possibility of being curbed by “safeguards” designed to verify 

whether material has or has not been diverted.

This development would lower the political and 

economic price of nuclear weapons and at the same 

time greatly increase the incentives to acquire them. 

The legal acquisition of concentrated fissile material 

by regional powers will increase the desire of regional 

adversaries to do the same. Such a development is encouraged by the incoherence and carelessness of the 

policies of the United States and other nuclear exporters which allow material easily turned into bombs by 

government nuclear laboratories to be used or produced during the course of civilian research or the 

generation of electricity.

The problem in the present export rules can be made 

vivid by a comparison. Under these rules a nonweapon

_____________

*Originally published in Foreign Policy, Vol. 25, Winter 1976, pp. 

88-94.
132

state can come closer to explosing a plutonium 

weapon today without violating an agreement not to 

make a bomb than the United States was in the spring 

of 1947, when the world considered us not only a 

nuclear power, but the nuclear power. The plutonium 

bombs of the time were primitive in design and crated 

in knockdown form. The very bulky high explosives 

had to be glued together piece by piece with slowdrying adhesives to form an implosion system. The 

fusing and wiring circuits were much more primitive 

than those commercially available today, and even a 

skilled team would have required several days to put 

a weapon together. In the spring of 1947, moreover, 

we had no skilled teams. Yet some believe our nuclear 

force to have been the main obstacle to an adversary 

reaching the English Channel, and others believe it 

to have been the backup for “atomic diplomacy.” It 

should make suppliers thoughtful that their nuclear 

exports might bring a no-weapon state closer to 

exploding a plutonium bomb today than the United 

States was in 1947.

THE INCOHERENCE OF CURRENT 

U.S. POLICIES

From the outset of the nuclear age, it has been clear 

that designing a bomb and getting the nonnuclear 

components are much easier than getting fissile material in high enough concentration for an explosive. 

Research on bomb design and testing of nonnuclear 

bomb components are not prevented by agreements on 

nuclear cooperation, and can proceed in parallel with 

the accumulation of fissile material. Fissile uranium 

(in particular, uranium-235) or fissile plutonium (especially plutonium-239) concentrated enough to need 
133

no isotope separation1, and only a modest amount of 

chemical separation are then the main hard steps on 

the way to a nuclear bomb.

The fresh fuel used in the present generation of 

power reactors is either natural uranium, which is almost all uranium-238 with less than 1 percent of the 

fissile isotope uranium-235, or low enriched uranium 

with only 3 to 4 percent of uranium-235. Such fresh 

fuel with less than 20 percent of uranium-235 cannot 

be used in an explosive without isotopic separation. 

But the irradiated or “spent” uranium fuel contains, 

along with other by-products, significant quantities of 

plutonium which result from the absorption of neutrons by the uranium-238. The plutonium so generated along with electricity has upward of 70 percent 

of the fissile isotopes of plutonium and requires no 

isotopic, but only chemical separation to be used in 

an explosive. Some “critical experiments” use large 

amounts of plutonium and uranium in metal form 

needing little further change.

To avoid putting fissile, that is, readily fissionable, material into the hands of no-weapon states, we 

deny licenses on facilities for isotope separation which 

could produce highly enriched uranium. So also on 

reprocessing plants for chemically separating plutonium. In the nuclear suppliers group, according to news 

accounts, we argue in principle against any other 

country making such exports even under International 

Atomic Energy Agency (IAEA) safeguards. While we 

so far have not won on the general principle, we have 

successfully opposed French sales of reprocessing 

plants to Taiwan and South Korea. And though not 

successful in our opposition, we say we objected to the 

German sale of enrichment and reprocessing plants to 

Brazil, as well as to the French sale of a reprocessing 
134

plant to Pakistan. We used to refuse to license the export of uranium enriched to more than 20 percent in 

uranium-235, whatever the inspection arrangements. 

All of this recognizes, sometimes explicitly, that safeguards imply timely warning and that material that is 

weeks, days, or hours from incorporation in a bomb 

therefore cannot be effectively safeguarded.

On the other hand, we have for some time exported to no-weapon states, for use in research, both separated plutonium and highly enriched uranium, which 

bring them closer to the bomb than do the facilities for 

separating such material. For example, from mid-1968 

to spring of 1976, we exported 697 kilograms of highly 

enriched uranium and 104 kilograms of separated 

plutonium to Japan and 2,710 kilograms of highly enriched uranium and 349 kilograms of separated plutonium to the Federal Republic of Germany.

And we continue to offer nuclear assistance to 

countries that plan to acquire fissile material, and even 

to a country like India which has already detonated a 

nuclear explosive in defiance of explicit Canadian and 

U.S. statements over the past decade that no nuclear 

explosive is exclusively peaceful within the meaning 

or their agreements on nuclear cooperation. We say 

that that is what our agreements have always meant 

(and it is indeed their commonsense implication),2

and we try to make this obvious meaning explicit in 

new agreements. Nonetheless, for old agreements we 

content ourselves with statements of U.S. unilateral 

understandings on this subject, and continue nuclear 

exports to countries that have refused to endorse our 

unilateral interpretation.3

The State Department assures the Congress that 

such unilateral understanding is binding enough, but 

after the Indians made a nuclear explosive using Ca-
135

nadian and U.S. peaceful assistance, we denied that 

the Indians had violated anything but the Canadian 

unilateral understanding and went through extraordinary contortions to hide the fact that they had used 

U.S. heavy water. We raised no objections when the 

French sold a reprocessing plant to Japan. Indeed, in 

1972, before that sale, we had authorized U.S. companies to sell a reprocessing plant to Japan under stricter 

safeguards than the Japanese were willing to accept, 

but apparently no stricter than those they actually accepted later for the French sale.

Our policies at that time did not recognize, as they 

do now, that the sale of reprocessing plants is mistaken 

even if safeguarded. The South Koreans observe that 

we treat Japan differently from them when it comes to 

reprocessing. The French comment sardonically that 

we make a great fuss about the sale of a reprocessing 

plant to Pakistan, even though our representative to 

the IAEA approved the Agreement between Pakistan, 

France, and the IAEA on the transfer and safeguarding of that plant. And apparently not all American 

officials, and evidently not the most important ones, 

opposed the West German sale to Brazil in tones audible at the highest level of the German government. 

Chancellor Schmidt told the press in June 1975, that he 

regretted criticism by U.S. journalists and politicians 

but that “he knew of no criticism by the U.S. government.”

We get then the worst of both worlds: In the end 

we refused to supply reprocessing or enrichment facilities to the Brazilians, knowing that though nominally civilian, such facilities could bring Brazil close to 

a bomb. But because we never formulated a coherent 

policy explaining that, it was easy for the Federal Republic to tell itself that we were simply sore losers in 
136

a business deal and that clinching the deal by giving 

the Brazilians a “sweetener” in the form of the principal ingredient of a nuclear explosive was perfectly all 

right.

Our agreements on nuclear cooperation abound in 

clauses that presume that the importing country will 

separate and recycle plutonium and that stocks of plutonium may in principle be effectively safeguarded. 

Moreover, we have talked of separating and recycling 

plutonium as if they were essential to the future of nuclear power both here and abroad, and have allowed 

the myth to persist that power-reactor plutonium cannot be used as an explosive. We have recently made 

the recycling of plutonium a key initiative in our energy conservation program. The Nuclear Regulatory 

Commission (NRC) has only recently shown signs of 

considering the international consequences of recycling to be a factor in the U.S. decision to license it 

domestically. As for uranium, sometime in the 1960s 

our attention wandered, and we began to ship highly 

enriched uranium to no-weapon countries. We appear 

to have shipped some five tons overseas--perhaps 300 

bombs worth of readily fissionable material. Our confusion has been durable and bipartisan.

HOW WE GOT INTO THIS FIX

The extensive fundamental overlap of the paths 

to nuclear explosives and to civilian uses of nuclear 

energy has been recognized since the mid-1940s.4

 The 

“heart of the problem” of international control, according to Robert Oppenheimer, was “the close technical parallelism and interrelation of the peaceful and 

the military applications of atomic energy.” We have 

almost from the start said that the military and civilian 
137

atoms were substantially identical yet, paradoxically, 

that we wanted to stop one and to promote the other. 

The paradox was present in the Truman-Atlee-King 

Declaration of October 1945, and we made our most 

valiant effort to reconcile these opposing aims in the 

Acheson-Lilienthal Report and the Baruch Plan of 

1946.

The Acheson-Lilienthal Report tried to resolve 

the dilemma by proposing to “denature” plutonium: 

that is, to spoil it as an explosive. This was to be accomplished by leaving the fuel to be irradiated in the 

reactors long enough so that the fissile isotope, plutonium-239, generated in the uranium fuel rods would 

in turn generate a large portion of higher isotopes of 

plutonium and, in particular, a large fraction of plutonium-240, which had serious drawbacks from the 

standpoint of the art of weapons design of the time. 

The idea had been advanced in March 1945 by Leo 

Szilard quite tentatively. (The troubles with plutonium-240 had been discovered only in the summer of 

1944.) The Franck Report proposed denaturing less 

cautiously in June 1945.

Discussion was necessarily muted and limited 

by the requirements of secrecy, by the bounds of the 

current state of the art, and by the limitations of current understanding of that state of the art. The initial 

report was predicated on the belief that denaturing 

would interpose the high barrier of isotopic separation between the use of plutonium for civil and military ends. This, given the elaborate mechanism of international control called for in the Acheson-Lilienthal 

Report, would assure some 2 to 3 years warning. The 

report itself exhibited some uncertainty and ambivalence5

 about the hope for denaturing, and the hope 

was almost immediately modified by a committee of 
138

distinguished Manhattan Project scientists to suggest 

that such plutonium could be used in a weapon, but 

would be very much less effective.6 Even the qualifications immediately introduced, we now know, were 

not strong enough. Yet the initial hope for denaturing 

has generated a long and inconsistent trail7

 of statements which still have their effect in encouraging the 

belief that plutonium left in the reactor long enough 

to become contaminated with 20 to 30 percent of the 

plutonium-240 or plutonium-242 would be unusable 

or, at any rate, extremely ineffective when used in 

a nuclear explosive. Since power reactors operated 

“normally” were expected for reasons of economics to 

achieve maximum “burnup” of fuel by leaving the fuel 

rods in the reactor long enough to so contaminate the 

rods, a kind of denaturing was hoped for as a result of 

standard procedures. However, this hope turned out 

to be a slender reed.

The Baruch Plan would have given sovereign states 

control only of safe civilian activities. They would 

have gotten all of their fissile material in denatured 

form, separated from spent fuel in plants owned by 

an international authority. That authority was to have 

monopoly of all dangerous activities; that is, all those 

that could quickly be turned to the manufacture of explosives. The plan rejected as unworkable any reliance 

on inspection rather than on ownership and control of 

dangerous activities.

The Soviets turned down the Baruch Plan. Since 

then we have come to rely on exactly the scheme regarded as unworkable by the authors of the AchesonLilienthal Report and the Baruch Plan. We rely in essence only on accounting and inspection of dangerous 

activities in no-weapon states. We are encouraged to 

do so by remnants of the belief that plutonium from a 
139

power reactor is not very dangerous.

But why was it important that plutonium be made 

safe for civilian use? The short answer is that we were 

powerfully impelled after the horrors of Hiroshima to 

believe that nuclear energy had a constructive use in 

electric power as spectacular as its use in military destruction. And we believed, on the basis of our initial 

understanding of the scarcity of uranium, that plutonium was essential to the future of nuclear electric 

power. The known reserves of natural uranium in the 

late 1940s were a mere 2,000 short tons. Since natural uranium contains only a tiny fraction of the fissile 

isotope, uranium-235, converting the more abundant 

uranium-238, which is not itself fissile, into fissile 

plutonium seemed a logical way to extend the scarce 

supply of fissile material for electric power. (From the 

first, we had contemplated using plutonium not only 

in breeders, but also in present day reactors.)

And the natural impulse to find civilian use for 

this enormous force led statesmen frequently to talk 

as if the civilian use were a substitute for the military 

one: The more we used atoms for peace, the less we 

would use them for war. We subsidized the spread of 

civilian nuclear technology not simply in the hope for 

spectacular economic benefits, but as if it were a decisive measure of nuclear disarmament. We dispersed 

“research” reactors in the Third World as a substitute 

for sending a symbolic “atomic peace ship” around 

the world rather than as a matter of hard economics 

for development, and were embarrassed to find that 

we had made it a matter of international prestige to 

have a research reactor, even for countries that had no 

trained personnel to use it. We made concessionary 

loans for power reactors almost as tenuously based in 

economics, and we did this as if they were necessarily 
140

advancing the cause of peace. Oppenheimer was quite 

right in saying that, unlike the Acheson-Lilienthal Report or the Baruch Plan, the Atoms for Peace program 

had no “firm connection with atomic disarmament” 

and that its bearing on the prospect of nuclear war was 

“allusive and sentimental” rather than “substantive 

and functional.” This symbolic use of atomic energy 

antedated the Atoms for Peace program and relates 

to our earliest habits of talking about promoting the 

peaceful uses of the atom as if they would automatically displace the military use.

However, it can be said of the pioneers of the 

nuclear age that though they sometimes talked as if 

there were a dichotomy, they also saw that the heart 

of the problem was a large overlap between civilian 

and military applications of nuclear energy, and they 

grasped very firmly the point that keeping the two 

sorts of activities separate means more than simply 

detecting a violation of an agreement. It means early 

detection of the approach by a government toward the 

making of a bomb in time for other governments to do 

something about it. This principle has been reaffirmed 

recently by the president, by the assistant administrator for national security of the Energy Research and 

Development Administration (ERDA), and by the inspector general of the IAEA. But, in practice, the point 

has a way of getting lost in the middle reaches of both 

national and international bureaucracies.

It was only to be expected that over 2 decades of Atoms for Peace programs would result in the formation 

of large groups of professionals in industry, in nuclear 

engineering departments of universities throughout 

the world, in governments, and in regional and international agencies. All of these groups have a strong 

interest in the “enlargement and acceleration” of the 
141

use of nuclear energy and a much milder concern with 

such long-term problems as the disposal of radioactive 

waste or the spread of nuclear explosives. They tend 

to identify any restraints to control the dangers of proliferation as simply―dread word―”antinuclear.” The 

hostility has been worsened by some of the extremists 

of the environmentalist movement, who seem dedicated to stopping and dismantling all civilian nuclear 

power rather than controlling its dangers and encouraging the development of safe forms of nuclear and 

nonnuclear energy. The nuclear energy faction inside 

large industrial corporations in turn feels embattled 

by any attempt at further restriction, precisely because reactor manufacture has so far involved great 

business losses in spite of subsidy. The nuclear debate 

degenerates into a dog fight between extremes, with 

the accusations by Squeaky Fromme and the Manson 

Family about a nuclear power conspiracy almost mirrored in the dark hints by the beleaguered industrial 

bureaucracy.

For example, delegates to a meeting in Vienna, 

Austria, last spring of the International Union of Producers and Distributors of Electrical Energy suggested 

that the holdups in separating plutonium to “close” 

the fuel cycle are due to “subversive elements” at 

work among groups opposing nuclear development.8

At a conference in Düsseldorf, Germany, earlier that 

week the chief executive of VEBA, a leading West German energy concern, indicated that the nuclear opposition was heavily backed with cash “from across the 

border.”9 But, from the standpoint of reactor manufacturers whose profits are all still in the future, less sales 

promotion and a more sober look at the social and 

even the entrepreneurial risks would be salutary for 

the industry itself. Treating as the enemy all doubters 
142

of nuclear market and cost-benefit studies encourages 

badly timed investments and the present industry 

troubles.

However we got into our present fix, we still have 

to ask what the fix portends for the future of proliferation, if we do nothing.

IS THE SPREAD LIKELY?

Past predictions of immediate spread have, for the 

most part, been false alarms. So, immediately after 

the war, scientists who had figured in the Manhattan 

Project predicted that, unless there were very drastic 

international controls, bombs would spread rapidly. 

Harold Urey forecast a half dozen countries entering 

the nuclear club in as few as 5 years. Irving Langmuir 

predicted that Russia would get nuclear weapons very 

quickly, but would be beaten in the race by Canada 

and England. And the general public reflected this 

pessimism. Intelligence estimates in 1948 were more 

hopeful (excessively so in predicting when the Soviet 

Union would get the bomb), but official predictions 

have had their ups and downs.

A second flurry of alarm came in the late 1950s as 

the military potential of the Atoms for Peace programs 

began to be visible. Officials predicted, for example, 

that not only Canada and Sweden would get nuclear 

weapons in the early 1960s but, unless there were a 

multilateral nuclear force, West Germany would too. 

Perhaps the best known study done then was by the 

American Academy of Arts and Sciences and the National Planning Association (NPA): it suggested that 

without international control there might be as many 

as 10 new nuclear powers in 5 years. This study was 

summed up somewhat incautiously by C. P. Snow’s 
143

famous statement in 1960 that all physical scientists “. 

. . know that for a dozen or more states, it will only take 

perhaps 6 years, perhaps less” to acquire fission and 

fusion bombs. Nothing of the kind happened. By comparison with these early alarms, the actual increase in 

the number of countries testing nuclear explosives has 

been very slow. Three additional countries tested at 

intervals of 8, 4, and 10 years in the 22 years following 

the British nuclear explosion.

There is a lesson to be drawn from a close examination of these past apocalyptic predictions. They assumed essentially that, in the absence of some quite 

extreme and politically implausible change in circumstance, countries that could get nuclear weapons 

would do so, and would do so more or less in the 

order of their technical and industrial competence. 

The incentives and drawbacks for proceeding with a 

nuclear weapons program were in all essentials neglected. However, political will is the key, rather than 

mere competence. The demand for weapons was softened by a system of working alliances and explicit or 

implicit guarantees that applied to most of the then 

likely prospects for an independent nuclear capability. 

The price and risks in undertaking a nuclear weapons 

program were also higher than most of the prophets 

had recognized. It is important today, as then, to look 

soberly at incentives and disincentives for the spread 

and how they might be affected. We should not easily 

assume inevitability.

Some students of proliferation, however, observe 

that three countries tested in the first decade, two in 

the second, one in the third, and are made excessively 

cheery by the diminishing sequence. But changes are 

taking place beneath the placid surface, which is presently undisturbed by new countries testing weapons. 
144

These changes are much less cheering. Under the 

present rules, civilian nuclear energy programs now 

under way assure that many new countries will have 

traveled a long distance down the path leading to a 

nuclear weapons capability. The distance remaining 

will be shorter, less arduous, and much more rapidly 

covered. It need take only a smaller impulse to carry 

them the rest of the way. There is a kind of Damoclean 

overhang of countries increasingly near the edge of 

making bombs.

For convenience, distinguish three conditions in 

which plutonium might be found in the course of 

generating nuclear electric power. The first is the accumulation of plutonium in irradiated or “spent” uranium fuel which is now a normal by-product of any 

operation of our current reactors. The second condition, much closer to being usable in a nuclear weapon, 

would be that of plutonium in fresh mixed plutonium 

and uranium oxide fuel rods. Even if a country did not 

separate plutonium or manufacture such mixed oxide 

fuel rods itself, it could have plutonium in this second 

form in reloads of mixed oxide fuel at the input end 

of reactors. Plutonium in the third condition would 

be found already separated in the form of plutonium 

dioxide or plutonium nitrate. In this form, it could 

be found at the output end of a separation plant or 

at the input end and in stocks-in-process in facilities 

that manufacture mixed plutonium and uranium fuel 

rods. Plutonium in these three conditions comes successively closer to a nuclear explosive. The last two 

conditions need occur only if plutonium recycling becomes general.

At present, our agreements on cooperation in general leave title to the spent fuel and all its products in 

the importing country. For governments accumulating 
145

the spent fuel, the barrier to obtaining a high enough 

concentration of fissile plutonium will be the need to 

separate the plutonium chemically. This is a less formidable obstacle than isotopic separation, the facility 

for which costs billions of dollars using present techniques and would take years to construct. Nonetheless, chemical separation is a substantial barrier and 

perhaps the most important one remaining, if nuclear 

suppliers do not secure the return of spent fuel. Getting spent fuel is a considerable stride along the road 

to nuclear weapons, compared to the position of the 

weapon states which started from scratch. But spent 

fuel still needs to be reprocessed, and that involves 

delay and then remote manipulation of extremely toxic, 

radioactive substances, facilities with six or seven feet 

for shielding, lead glass windows, etc. Tons of spent fuel 

must be handled to produce kilograms of plutonium.

At the other extreme is the plutonium that would 

be stored at the output or “back” end of reprocessing 

plants and at the input or “front” end of plants fabricating plutonium or “mixed oxide” fuel. Such plutonium in the form of plutonium dioxide or plutonium 

nitrate could be converted to plutonium metal using 

generally known methods and without remote handling equipment or extensive shielding and the like, 

but only a glove box. It should take no more than a 

week in a facility covering 3,600 square feet and costing about $1,400,000.

Plutonium would also be found, if it is recycled, 

in fresh unirradiated fuel rods at the input end of the 

reactor. Extracting plutonium from such mixed oxide 

fuel would be very much easier than taking it out of 

the irradiated spent uranium fuel. Plutonium is more 

concentrated in the mixed oxide fuel rods (4.5 percent 

compared to .7 percent). Unlike irradiated fuel, it is 
146

not highly radioactive and would require no delay, no 

“hot cells” with heavy shielding, no remote manipulation, and no removal of fission products. A facility 

for separating 5 kilograms per day and converting 

it to plutonium nitrate might exist in a 1,400 square 

foot laboratory and might cost $235,000. This is trivial 

by comparison with the cost of a facility for deriving 

comparable quantities of plutonium nitrate from the 

spent uranium fuel. The latter might cost from $75 

million to $100 million. The difference is important, 

because today many proposals would ban separating 

plutonium in no-weapon states, but not recycling it in 

mixed plutonium and uranium fuel. So, for example, 

early drafts of U.S. agreements of cooperation with 

Egypt and Israel.

We can measure the advance toward the ability 

to manufacture nuclear explosives implicit in recent 

civilian nuclear electric programs, as of 1975, by showing first the number of countries, including the present weapon states, that would have enough separable 

but possibly unseparated plutonium for a few bombs 

between now and 1985. Second, the large number 

of countries with various quantities of plutonium in 

fresh reloads of unirradiated plutonium fuel if plutonium recycling should become general, even if these 

countries do not themselves separate plutonium or 

manufacture plutonium fuel rods. Third, the number 

of countries that have planned to have a capability to 

separate that much plutonium by 1985. The results of 

these three sets of calculations are displayed respectively in Figure 1, Table 1, and Figure 2.
147
148

The first thing to be said about the numbers in 

these charts is that they are very large. Chemical separation of plutonium and the enrichment of uranium 

are civilian activities which have long been regarded 

as “normal,” if not yet operational, parts of the nuclear 

electric fuel cycle. They may sometimes and in some 

places be discouraged by various ad hoc national 

policies, but they have not been subject to a clear-cut 

international or universal national prohibition by sup-
149

plier countries. The problem of inhibiting or reducing the size of this burgeoning capacity is not merely 

then a matter of an improved watch, to see that clearly 

agreed prohibited line is not crossed. Among other 

things it would involve defining and moving such a 

clearly agreed boundary to preclude activities which 

cannot provide adequate warning. And for whatever 

dangerous activities remain on the permissible side of 

the agreed boundary, we need to elaborate a consistent national policy to discourage them and encourage 

other safer alternatives.

The second thing to be said is that this large growth 

is not inevitable. It presumes the carrying through of 

plans, negotiations, and constructions not yet firmly 

committed; some, like the Korean and Taiwan separation plants, have had setbacks. The growth, moreover, 

is open to further influence, a subject for the elaboration of policy of supplier as well as recipient governments. But American influence on the policies of 

various importing and exporting countries is limited 

by the confusion and arbitrariness of our policy on 

access to fissile material. Figures 1 and 2 and Table 

1 are not unconditional forecasts, but indications of 

what may happen if conditions are not altered. The 

gist of these Figures is that, under the present rules of 

the game, any of a very large number of countries may 

take these further long strides toward the production 

of nuclear weapons in the next 10 years or so without 

violating the rules―at least no vigorously formulated, 

agreed-on rules.

These paths toward producing weapons are in addition to paths which exploit the weakness of sanctions against breaking the Treaty on Non-Proliferation 

of Nuclear Weapons (NPT) or bilateral rules, and in 

addition to paths open to those governments which 
150

have not ratified the NPT. Extending the NPT to more 

countries or increasing the efficiency of “safeguards” 

or physical security measures would not, therefore, 

block these paths. The recent interest in measures 

against diversion, while useful in itself, distracts attention from the steady spread of production capacities within the rules.

Some part of the stocks of fissile material might 

always be diverted within the limits of error of material unaccounted for by any inspection system. In 

the future, when these stocks are very large, diverting 

even a small percentage would yield sizable absolute 

amounts. This tends therefore to be the focus of most 

attention. Yet it is much less important than the possibility of piling up significant stocks of fissile material 

legally, without diversion, for use later in explosives.

I have distinguished for convenience four kinds 

of nuclear explosive capacity. The first is the sort of 

capacity which has been much in the public eye in the 

last year or two, due especially to the efforts of Dr. 

Theodore Taylor to make clear its dangers. It would 

consist in the manufacture of a crude device derived 

from stolen fissile material, perhaps not using plutonium metal, but plutonium dioxide powder, yielding as little as 10 or 100 tons of energy, and designed 

for terrorist use by some nongovernmental group, or 

possibly even a single individual. It might use poorly 

separated material and be dangerous not merely if exploded in anger, but to store and handle.

The second capacity would rely on a few explosives, perhaps implosion weapons in the kiloton (kt) 

or greater range. They might be used by governments 

as a desperate last resort threat against populations (or 

transferred by some governments to terrorists). The 

third capacity I have taken arbitrarily as consisting 
151

in perhaps 50 such devices, enough to call for plans 

to incorporate them into a military force. The fourth 

would be much more sophisticated. It is the kind that 

an industrial power like Japan might contemplate, if it 

made the decision to become a military nuclear power 

in the 1980s or 1990s. It would require very sophisticated fission and fusion weapons with predictable 

yields and with more advanced and protected delivery capabilities.

This chapter focuses especially on the second sort 

of capability. It imposes no stringent requirements for 

delivery. (These requirements are very stringent for a 

middle power to get a serious and responsible force in 

the 1980s.) I do not, however, mean to imply that the 

capacity to produce a few bombs for use as a last resort will actually realize the hopes some government 

might place in it. It is likely to be extremely inflexible, 

vulnerable, and available only for suicidal use. Nonetheless, some governments might take this route.

However, the nuclear energy bureaucracy, and 

statesmen informed by it, have been cheerfully arguing that the recycling of plutonium will not make the 

spread of weapons more likely. Their arguments are 

residues of the initial faith in denaturing. They are 

saying that power reactor plutonium would be contaminated in normal reactor operations and abnormal 

operations would be quickly detected and punished; 

that power reactor plutonium cannot be used as an 

explosive; or if so used, it would be ineffective, with 

generally low yields and highly variable ones; that 

only sophisticated nuclear weapon countries like the 

United States and the Soviet Union, with many years 

in the business, could so derive weapons that have 

any genuine military use; and finally, with a touch of 

bathos, that power reactor plutonium is anyway less 
152

than optimal for weapons.

It is surprising that the faith in denaturing of plutonium, however plausible initially, could have survived 

for more than 3 decades. Since this belief explicitly or 

implicitly rationalizes so much carelessness, it is important, before putting it to rest, to offer some current 

examples. “Both Framatome and French officials,” 

according to Nucleonics Week, June 3, 1976, “deny the 

[South African] deal is conducive to weapons building. ‘The worst way to make a bomb is to buy an LWR 

(light water reactor) for 5 billion francs,’ commented 

Leny Abourdarham [also of Framatome] added, ‘To 

get clean Pu-239 from our type of reactor, you’d have 

to lower the burnup rate and discharge the reactor not 

once a year but about twice a month.’ The higher the 

burnup the more contaminated the spent fuel is with 

Pu-240.” The new French foreign minister, while ambassador to the United Nations (UN), told the Security 

Council flatly that plutonium so derived “could not be 

used for military purposes.”10 In Germany, officials of 

Kraftwerk Union have suggested that weapons-grade 

plutonium must be 98 percent pure plutonium-239, 

and that anything less could be used not in a military 

weapon, but only in “terrorist explosive devices” of 

low and uncertain yield, which in any case would be 

extremely hard for terrorists to make.11 The Swedish 

government committee on radioactive wastes (the Aka 

Committee) reports that “The plutonium . . . produced 

in Swedish power reactors contains as much as 25 percent to 30 percent of plutonium-240 [and] . . . can only 

be utilized in weak and probably unreliable nuclear 

charges of highly questionable military value.”12

In the United States, the president of the Atomic 

Industrial Forum says that if nuclear reactors are 

“run on an economic fuel cycle--that is, long irradia-
153

tion times--the plutonium produced is readily used 

only for making explosive devices which are hardly 

military weapons.”13 He goes on to suggest that only 

very sophisticated weapons countries like the United 

States and the Soviet Union are able to overcome the 

difficulty by special design. The Forum’s Committee 

on Nuclear Export Policy concludes that we should 

promote peaceful nuclear electric power only to the 

extent consistent with the goal of eliminating proliferation, but they do not think that should impose much 

constraint, since, “. . . power reactors are not a practical or economic vehicle for producing weapons-grade 

plutonium. The processing of fuel from a power reactor at low irradiation levels would be costly and revealing of intentions, thus jeopardizing the supply of 

new fuel. On the other hand, the use of reactor-grade 

plutonium of high irradiation levels for weapons purposes presents formidable technical challenges.”14

And finally American government officials in 

agencies granting loans and subsidies to countries 

like India which have or propose to get reprocessing 

plants take comfort from the fact that, “While the plutonium produced by these reactors could be used in 

an inefficient and unsophisticated explosive program, 

it is not optimum material for explosive uses because 

of the high percentage content of the nonfissionable 

plutonium isotope plutonium-240.”15

But all of this is quite misleading. For one thing, 

a no-weapon country can operate a power reactor 

so as to produce significant quantities of rather pure 

plutonium-239 without violating any agreements or 

incurring substantial extra expense. This would involve departing from theoretical “norms” for reactor 

operation, but a look at the actual operating record 

of reactors in less developed countries suggests how 
154

theoretical these norms are. Even in America in the 

early 1970s, leaking fuel rods caused Commonwealth 

Edison to discharge the initial core of its Dresden-2 

reactor early, with nearly 100 bombs-worth of 89 to 95 

percent pure fissile plutonium.16 (In India, as of September, 1975, 97 percent of the fuel discharged from 

its Tarapur reactors had leaked.)

Countries like Pakistan and India, with smaller 

electric grids and poorer maintenance, have operated 

much less and much more irregularly than the steady 

80 percent of the time originally hoped for; and have 

irradiated their fuel and contaminated the plutonium 

in it less. Since it is neither illegal nor uncommon to 

operate reactors uneconomically, governments may 

derive quite pure plutonium-239 with no violation nor 

much visibility.

What is more, there is plainly a considerable 

latitude in the degree of purity actually required for 

explosives. The discussion in the European nuclear 

industry frequently assumes that weapons-grade 

plutonium must be 98 percent pure plutonium-239.17

In this country, however, under present classification guidance, the fact that plutonium containing up 

to and including 8 percent plutonium-240 is used in 

weapons is unclassified as is the fact that more than 8 

percent plutonium-240 (reactor-grade) can be used to 

make nuclear weapons.

Most significantly, 20 years of Atoms for Peace programs have dispersed well-equipped and well-staffed 

nuclear laboratories among non-nuclear weapons 

states throughout the world. (For example, by 1974 

the United States alone had trained 1,100 Indian nuclear physicists and engineers. The shah of Iran plans 

to have 10,000 trained.) Many of these laboratories 

would be quite capable of designing and construct-
155

ing an implosion device and of studying its behavior 

by non-nuclear firings. It is true that if they were to 

use power reactor plutonium with 20 to 30 percent of 

the higher isotopes, they would be likely to obtain a 

lower expected yield and a greater variation in possible yields than if they should use more nearly pure 

plutonium-239. (Of course, a non-nuclear component 

could fail, but this has nothing to do with the grade of 

plutonium used.) However, they could build a device 

which, even at its lowest yield level, would produce a 

very formidable explosion. This may be seen from the 

record (now public) of the characteristics of the Nagasaki plutonium bomb.

THE FAT MAN AND THE LITTLE BOY

The first American implosion design, “Fat Man,” 

was used in the Trinity test and the Nagasaki bomb. It 

had a finite probability of predetonating even though it 

used an extremely high percentage of plutonium-239. 

Plutonium-239 itself emits neutrons spontaneously, 

though five orders of magnitude less so than an equal 

quantity of plutonium-240. More important, though 

the Trinity and Nagasaki devices used exceptionally 

pure plutonium-239, they had a significant fraction of 

plutonium-240. They had a definite chance, then, of 

detonating prematurely, that is, between the time the 

rapidly assembling fissile material first became critical 

and the time that it might have arrived at the desired 

degree of supercriticality; and the less supercritical, 

the lower the yield.

In a memorandum to General Farrell and Captain 

Parsons immediately after the Trinity test, and before 

the use of Fat Man at Nagasaki, Oppenheimer wrote, 
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As a result of the Trinity shot we are led to expect a 

very similar performance from the first Little Boy (the 

gun-assembled uranium weapon used at Hiroshima) 

and the first plutonium Fat Man. The energy release of 

both of these units should be in the range of 12,000 to 

20,000 tons and the blast should be equivalent to that 

from 8,000 to 15.000 tons of TNT. The possibilities of 

a less than optimal performance of the Little Boy are 

quite small and should be ignored. The possibility that 

the first combat plutonium Fat Man will give a less 

than optimal performance is about 12 percent. There 

is about a 6 percent chance that the energy release will 

be under 5,000 tons, and about a 2 percent chance that 

it will be under 1,000 tons. It should not be much less 

than 1,000 tons unless there is an actual malfunctioning 

of some of the components. . . .” (italics added)18

Indeed General Leslie Groves, like Oppenheimer

writing between the Trinity test and the actual use of 

the implosion weapon at Nagasaki, anticipated an increase in the fraction of plutonium-240 in later weapons. He wrote, 

There is a definite possibility, 12 percent rising to 20 

percent as we increase our rate of production at the 

Hanford Engineer Works, with the type of weapons

tested that the blast will be smaller due to detonation 

in advance of the optimum time. But in any event, the 

explosion should be on the order of thousands of tons. The 

difficulty arises from an undesirable isotope which is 

created in greater quantity as the production rate increases (italics added).19

The essential point to be made is that even if a device like our first plutonium weapon were detonated 

as prematurely as possible―at a time when the fissile 

material was least supercritical―its would still be in 

the kt range. Apart from a modest degradation in the 

quality of the fissile material employed, and hence in 
157

the size of the expected yield, all that a higher fraction of plutonium-240 in such a first implosion device 

could do is increase the probability of obtaining a yield 

smaller than the optimal, but still as large or larger 

than that already enormously destructive minimum.

The lowest yield of such a weapon can by no stretch 

of the imagination be called “weak.” Moreover, by 

comparison with the average or even the maximum 

yield possible in that implosion design (or by any 

standard), it would by no means be contemptible. In 

fact, only 7 months before Trinity, the first implosion 

weapons were expected to yield much less than one kt.20

A reduced yield would not mean a proportionate reduction in damage. The area destroyed by blast 

overpressure diminishes as the two-thirds power of 

the reduction in yield, and the reduction in prompt radiation―which is the dominant effect on population of 

a low-yield weapon―is even smaller. (If the expected 

yield were eight kts, and the less probable but actual 

yield were “merely” one kt, the blast area would be reduced not by seven-eighths, but only by three-fourths 

and the region in which persons in residential buildings would receive a lethal dose of prompt radiation 

would only be halved.) The lethal area would still be 

nearly a square mile. 

Variability in yield would be a drawback for an advanced industrial country preparing the sort of force 

I have referred to as of interest to an industrial power 

like Japan in the 1980s or 1990s. Such a power might 

want a theater weapon that minimized collateral damage if only for the protection of its own troops. However, for a last resort weapon used against a distant 

population, it is important only that the of the yield 

be formidable; and if in fact more destructive energy 

is released than anticipated, this would only reinforce 
158

the destruction intended.

Finally, the variations in damage due to differences in the purity of the plutonium are likely to be much 

less than the variation in damage due to the differing 

operational circumstances in the use of the weapon. 

The Nagasaki plutonium implosion bomb had an estimated yield of 21 kts. The Hiroshima uranium gun 

weapon is now estimated to have released 14 kt. Yet, 

due to differences in terrain, weather, accuracy of delivery, and the distribution of population, the Hiroshima bomb killed twice as many people as the Nagasaki 

weapon.

As for the argument that military men would never use a device whose result was not precisely predictable, this is not very persuasive. If so, military men 

would hardly ever enter battle. The uncertainties of 

surviving ground attack, of penetrating air defense, 

and of delivering weapons on target are cumulatively 

larger than the uncertainties in the yield of a bomb 

made with power-reactor plutonium. Plans for delivering the first nuclear weapons were going forward 

before any test, and during a period when the Manhattan Project scientists had highly varied estimates of 

their yield. In sum, no one should believe that powerreactor plutonium can be used only in a feeble device 

too unreliable to be considered a military weapon, or 

that recycling plutonium is therefore safe.

Recently, as some of the examples I have cited suggest, the bureaucracy has taken a slightly different 

tack: power-reactor plutonium can be used as an explosive, it is admitted, but would-be nuclear countries 

will not use it that way. They can get better plutonium 

more cheaply and easily by buying reactors specifically for the purpose of producing plutonium and not 

for generating electricity. However, if one already has 
159

paid for an electric power reactor, the relevant economic figure is not the total, but the marginal, or extra, 

cost to get bomb material, given the fact that one has 

paid anyway for the reactor. In fact, if recycling is accepted as essential for the fuel cycle, the cost of separation plants would be charged to the generation of 

electricity and would involve no incremental cost for 

getting separated plutonium for weapons. Getting impure plutonium in this way would be nearly costless. 

Getting a significant quantity of rather pure plutonium would involve some fuel and operating costs, but 

these would be small by comparison with the expense 

of a program to produce and separate plutonium exclusively for weapons.

The more important costs are political for any program designed overtly to get plutonium for a weapon. 

That could be why the Pakistanis, the Koreans, the Taiwanese, and others deny that they are doing any such 

thing. It would hurt them militarily, economically, 

and politically. They can more easily get the financial 

and technical assistance and trading relations necessary for a power reactor. The political costs would be 

high for the exporting country too.

Finally, what the bureaucracy seems to miss altogether is that a no-weapon state under the present 

rules can proceed down the path toward making a 

weapon without deciding to do so in advance. It does 

not have to start out as a “would-be nuclear country.” 

It can change its mind or it can make up its mind later. 

It does not have to get a production reactor.

Of course, a production reactor might be disguised 

as a vague sort of “research” reactor, though this is 

likely to yield smaller quantities of plutonium. In fact, 

the rules governing research reactors and “critical experiments” have been even more careless and need 
160

tightening even more than those governing power 

reactors. But this second line of argument is hardly 

a cheery confirmation that the rules make the spread 

unlikely. It has the opposite sense. It has led industry 

representatives to suggest that the spread is inevitable 

“sooner or later,” and we will just have to live with 

it.21

WOULD THE SPREAD TO MORE COUNTRIES 

BE BAD?

As we and other supplier countries continue to 

subsidize the export of materials, equipment, and information needed for making nuclear explosives, the 

bureaucrats in industry and government associated 

with these programs tend more and more to tell themselves and everyone else that the spread of nuclear explosives may not be so bad after all: governments that 

get nuclear weapons will themselves behave more 

cautiously; their nuclear weapons will inspire caution 

in their neighbors; this in turn might free the United 

States from the burden of defending some troublesome allies.

However, the spread of nuclear weapons to many 

countries will disperse not only instruments of deterrence and prudent behavior, but also means of coercion and reckless or deliberate devastating attack. Not 

all threats of nuclear aggression will be neatly offset 

and canceled by convincing promises of nuclear response. The risks will rise very high. In unstable parts 

of the world, the disasters possible in short conflicts 

will increase enormously. In the Middle East, for example, before outside powers could stop the conflict, 

as a result of an exchange involving a few bombs, the 

Arabs might suffer several million and the Israelis a 
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million dead in contrast with the thousands killed 

in the October war. In a conventional war, it takes a 

very long time or huge resources to kill the number 

of people that would be destroyed by a few nuclear 

weapons in a matter of hours. The spread of nuclear 

weapons will reduce our ability to control events. It 

will have a dissolvent effect on alliances, expose our 

own forces overseas to huge new risks, and ultimately 

impose large costs in shaping our own offense and defense to protect the continental United States against 

small terror attacks by national, as well as subnational 

groups. Even distant small powers using freighters 

and short-range missiles, such as the Soviet SCUD, 

will be within system range of the United States. Even 

if such a development were, as it is claimed, inevitable 

“sooner or later,” later would be better than sooner, 

and less better than more.

WHAT CAN WE DO TO LIMIT OR SLOW THE 

SPREAD?

The characteristic view in the bureaucracy is that 

we have no leverage. We cannot prevent foreign suppliers from selling nor importers from buying nuclear 

technology on terms even less constraining then ours. 

It is unfair, then, to burden our nuclear exporters. Besides, we can retain our influence on no-weapon states 

only by continuing to supply them with nuclear services, equipment, and materials without interruption.

There is an obvious muddle in the bureaucracy’s 

view that we cannot influence events on the one hand, 

but on the other, we do have an important influence

that we can retain only by continuing to export and--

to make the muddle muddier--by continuing to export 

to buyers, no matter what their behavior, no matter 
162

what moves they make toward nuclear explosives. For 

the bureaucracy, in short, we can retain our leverage 

only it we never use it. A lever is a form of abstract art 

rather than a tool giving us a mechanical advantage.

All this is plainly disingenuous: We have talked 

of the inevitable while actively promoting nuclear 

energy in no-weapon states in forms that permit access to readily fissionable material, subsidizing the 

financing of these sales, giving away research reactors

with highly enriched uranium cores, assisting “critical experiments” that involve hundreds of kilograms 

of separated plutonium and highly enriched uranium, 

urging that no-weapon states recycle plutonium,

training engineers from no-weapon states in how to 

separate plutonium, arguing for domestic recycling as 

an essential to the future of all nuclear electric power, 

and in general setting an example to no-weapon states 

that suggests that the stocking of fissile material is 

both necessary and safe.

The State Department argues that we must supply 

nuclear services, equipment, and material “reliably”--

by which it means that we should supply them steadily and indiscriminately to importers who do and to 

those who do not live up to an obligation to avoid 

getting explosives, or materials quickly convertible to 

nuclear explosives. Such “reliable” supply, it claims, 

will enable us to influence the importers. Exactly the 

opposite of the truth. Importers will be influenced to 

stay away from stocks of explosive material only if 

it costs them something not to do so, and only if our 

threats or sanctions are taken seriously. The Indian 

use of Canadian and American help for “peaceful uses 

only” to make nuclear explosives illustrates the point 

marvelously. The Indians guessed right in not taking 

the constraint seriously. Their explosion inspired only 
163

ingenious apologies for them in our State Department.

One token of our lack of seriousness is the piecemeal way we decide on licensing exports without considering the cumulative effect of our own and other 

suppliers’ individual decisions in enabling an importing country to set explosive material. For example, we 

limit the amount of highly enriched uranium in the 

core of an individual research reactor we have given 

away, but place no constraint on the total amount of 

highly enriched uranium the importing country might 

gather from several sources. In this and other ways, 

we set a confused and incoherent example for other 

suppliers.

But other supplying countries have an interest in 

avoiding the spread of weapons to more states. The 

French government does not like the prospect of 

Spanish nuclear weapons, and neither the Germans 

nor the French could afford explicitly to use bombs as 

sweeteners for reactor sales, even if they wanted to. 

The French and Germans point out correctly that they 

now impose more stringent safeguards on exports 

than the IAEA requires, but they do not recognize, nor 

do we point out, that safeguards cannot be effectively 

applied to fissile material only a few hours away from 

a bomb; that is, such “safeguards” cannot give timely 

warning. The principal precondition for us to influence other suppliers as well as importers is a clear, 

consistent policy: a set of signals which are green on 

some activities, red on others. We now flash red, yellow, and green on practically everything.

But there are clear signals we can send and effective levers we can press. On the political and military 

side, we can help countries defend themselves against 

nonnuclear attack without resort to nuclear weapons. 

Our military sales program should be designed to dis-
164

courage a nuclear defense and to make non-nuclear 

defenses more effective. And our alliance policy can 

strengthen guarantees against nuclear adversaries. 

For example, we can supply the South Koreans with 

improved short-range surface-to-air missiles and 

short-range precision guided nonnuclear weapons, 

and discourage their attempts to convert Nike Hercules into 200-mile surface-to-surface rockets which 

would be effective only with nuclear warheads and 

only against population targets.

On the economic side, we can design our export 

and export financing policy to affect an importing 

country’s energy program considered as a whole, not 

piecemeal, by encouraging the use of nonnuclear energy and of comparatively safe forms of nuclear energy and by discouraging or penalizing the dangerous 

forms of nuclear energy that permit access to fissile 

stocks.

The effectiveness of the levers at our disposal can 

be illustrated by the extreme sensitivity of various 

programs in the no-weapon states of the Third World 

(where the impending spread is now most threatening) to simple alterations in the terms of financing. Korea, for example, has drastically cut back its nuclear 

program in response to a slight hardening in Canadian and American financial terms. And the effectiveness of our political and military levers is illustrated 

by the cancellation of the Korean reprocessing plant.

In sum, statements that we have no leverage mean 

that we do not want to press the levers we have, that 

we are not serious about proliferation. We do not 

think about the international consequences of digging 

ourselves deeper into a commitment to recycle plutonium, for example, by bailing out Allied General from 

its costly investment in reprocessing at Barnwell. We 
165

prefer to hang on to some quite inessential outworn 

conceptions of the nuclear fuel cycle and we are moving toward competing with the French and the Germans by giving away para-bomb capabilities.

Other governments have reason to doubt our 

claim that we unequivocally oppose proliferation. But 

actions against proliferation do cost something. It is 

only fair to ask whether they are worth the cost.

WILL SLOWING THE SPREAD COST MORE 

THAN IT IS WORTH?

Slowing the spread means reducing the demand 

for nuclear weapons by intelligent policies of alliance 

and of military sales and assistance. It means reducing 

the supply of nuclear weapons materials by sensible 

nuclear energy policy for our domestic as well as our 

foreign sales. On the supply side in particular restrictions are often thought of as depriving us and other 

suppliers of enormous market benefits and imposing energy shortages on all of us, including the Third 

World countries now in the market for nuclear energy 

that is at least overtly civilian.

Nuclear energy has an important role to play, but 

its positive contributions will not make the difference 

between heaven and hell on earth. Its benefits have 

been puffed up from the start in ways that have greatly distorted its performance and made national energy 

programs follow something much less than the best 

path and timing for introducing nuclear energy into 

the total energy mix. A more sober program would 

benefit the security interests of the United States and 

ultimately the economic interests of the industry. 

Without the extensive conversion of uranium-238 

into plutonium and the separation of plutonium from 
166

spent fuel, we can have enough coal and enough of 

the fissile isotope uranium-235 at reasonable prices to 

last us well into the second quarter of the 21st century. 

By then we should be able to make an intelligent transition to the use of abundant or renewable resources: 

a safe and economic breeder; or a safe form of fusion; 

or solar energy, whether in the form of solar electric 

power, biomass, or some other. We have time.

The contrary claim that we need immediately to 

add to the reserves of uranium-235 by the extensive 

use of separated plutonium in the current generation of light water reactors, and that we should now 

contract into the early use of the plutonium breeder, 

is based on bad economics. It ignores the way an increase in market prices generates a larger supply of 

specific scarce resources (by making them worth finding and exploiting), or a supply of substitutes, and at 

the same time reduces the demand.

In fact, the nuclear industry has suffered chronically from premature commitments based on exaggeration of energy demand, the demand for electric power, 

in particular the demand for nuclear electric power, 

and the derived demand for uranium and for enrichment services. This exaggeration applies to overseas 

as well as to domestic demand. And the impression 

of crisis has been encouraged further by understatements of the supply that might be made available at 

various prices and by the discouragement of supply 

that has followed from the wild swings in demand 

when excessive hopes have been deflated. In 1975, the 

AEC predicted 450 electric gigawatts (GWe)22 of nuclear capacity operating in the United States in 1985. 

In 1970, it predicted 300 GWe by that date. Today, on 

the basis of actual construction and orders, the Federal Energy Administration (FEA) expects 145 GWe or 
167

less. Given varied technical assumptions appropriate 

for the dates when the forecasts were made,23 these 

predictions imply a cumulative need respectively for 

about one million, 500,000, or 220,000 tons of fresh uranium yellow cake, if there is no recycling. The 80,000 

tons that would be needed annually by the year 1985, 

if the AEC’s 1970 nuclear power forecasts were right 

and we did not recycle, far exceeds the supply of low 

cost uranium that might be available at that time. The 

33,000 tons that would be needed to fulfill the more 

sober FEA schedule during the year 1985 is quite in 

line with what is in prospect. ERDA has estimated 

that a rate of 33,000 tons can be available in the early 

1980s at the low forward cost of $15 per pound.24

Much the same can be said about inflated forecasts of the need for uranium enrichment services; 

and about the longer-term forecasts until the end of 

the century for both uranium and enrichment. European, Japanese, and Third World nuclear power forecasts have been similarly inflated. In 1957, Euratom 

forecast about 15 GWe of nuclear power in 1967 and 

about 50 GWe in 1975. In actuality there was 1.6 GWe 

in 1967, and at the end of 1976 there will be only about 

12.2 GWe.25 The Japanese in 1970 expected 60 GWe by 

1985. They have officially cut this to 49 GWe and some 

Japanese experts expect it to be as low as 30 GWe.

The nuclear bureaucracy believes that overstating 

demand is much less harmful than understanding it.26

This is not so. The exaggeration has severely damaged 

both national policy and the profitability of industry. 

Exaggerated uranium demand biased decisions toward plutonium recycling in the current reactors as 

well as in breeders. The inflated domestic demand for 

enrichment led us in 1974 to ban any new enrichment 

commitments to foreigners. This led to the present 
168

scramble overseas to get enrichment capabilities independent of the United States with an obvious resulting 

loss of U.S. control. Inflated market expectations have 

also cost the industry money. Chrome-premature 

commitment has meant, in the United States, a loss to 

General Electric of $500 million to $600 million on 13 

turnkey contracts; a loss of $.5 to $2 billion by Westinghouse depending on how it settles the legal claims 

of public utilities on its forward sale of uranium that 

it used to sweeten its reactor sales. Royal Dutch Shell 

and Gulf Oil, the two owners of General Atomic, have 

lost over one billion dollars on the latter’s high temperature gas-cooled reactor.

It is hard to disentangle losses on commercial 

nuclear sales in company statements that, in general, 

merge those losses with profits on fossil fuel plants, 

military nuclear sales, or other industrial products. 

But it appears that Babcock and Wilcox, and Combustion Engineering, the other two major U.S. reactor 

manufacturers, have suffered respectively a cumulative loss on nuclear sales of about $100 million and 

$150 million; for 1976 each will have an estimated $10 

million pre-tax loss. General Electric’s pre-tax loss on 

nuclear sales in 1976 will be about $40 million. AEG 

Telefunken, part owner of Kraftwerk Union, lost DM 

685 million ($274 million) on nuclear sales in 1974, 

and expected losses in “three-figure millions” marks 

in 1975.27 It is harder to determine Framatome’s losses. 

As for reprocessing of light water reactor fuel, though 

very little has been performed, the losses have been 

impressive. General Electric’s Morris, Illinois, plant, 

which cost $64 million, had to be abandoned without 

ever going into operation.28 The Allied General Nuclear Services plant at Barnwell owned by Allied Chemical, Royal Dutch Shell, and Gulf Oil, originally esti-
169

mated to cost about $50 million actually has cost $250 

million so far, and may take about a billion dollars in 

total to complete in accordance with current requirements. Getty’s Nuclear Fuel Service plant in West 

Valley, New York, shut down for modification after 

about $30 million in gross sales. It might require some 

hundreds of millions just to dispose of the radioactive 

waste from its previous work. Getty wants to cancel 

some $180 million in reprocessing contracts it has accepted, since it estimates it will take $600 million to 

fulfill the contracts within regulatory requirements. 

The government-owned plant in Windscale, England, 

had troubles with the head end. The Eurochemic plant 

in Belgium has been shut down, and Europeans now 

judge that the recycling of plutonium will exceed the 

cost of getting fresh uranium fuel and that if reprocessing should be necessary for waste disposal, it will 

require subsidies from public utilities.29

In general, it is plain that for the nuclear industry 

as a whole, profitability is still a vision of the future. 

Immense losses could be avoided by greater realism.

The collapse of expectations in domestic markets 

unfortunately has led to an aggressive campaign to 

sell to the less-developed countries (LDCs), where, 

in general, nuclear power is least economic: Nuclear 

electricity is highly capital intensive, efficient only in 

very large sizes and requires continuing highly sophisticated maintenance. The LDC reactor market, 

which the industrial powers might fight to share, is 

quite small, and the market for reprocessing plants 

is even smaller--1 or 2 percent of the reactor market. 

The heavily subsidized initial sales have been made 

on terms which worsen the problem of proliferation 

without any realistic prospect that the ambitious LDC 

long-term nuclear programs will be fulfilled. Yet in the 
170

past the French have talked of sales to the Third World 

of plutonium breeders which are more damaging and 

even less plausible for LDCs than the present generation of reactors which they will exceed in capital costs, 

diseconomies of small scale, and sophistication.

The most urgent issue, if we are to restrict access 

to fissile material, is the use of plutonium as a fuel in 

current reactors. This has been argued for on grounds 

that it would (1) save a lot of money, (2) save much 

scarce uranium, (3) be essential for permanent disposal of radioactive wastes, and (4) be required to get the 

plutonium breeder on present schedules. None of this 

is true. On Point 1, the estimates of costs for separating 

plutonium and making it into fuel rods have multiplied 10-fold in 10 years and are still highly uncertain 

and in controversy. On Vince Taylor’s calculations, 

they exceed the estimated costs of fresh uranium fuel 

rods. Most important, even if plutonium separation 

were costless, it could make only a 1 or 2 percent difference in the delivered kilowatt hour cost of nuclear 

electricity.

As for Point 2, the conservation argument should 

be related to the economics: We are not impelled to 

extract plutonium from spent uranium fuel any more 

than we are presently moved to extract the enormous 

quantities of uranium from sea water. It depends on 

the costs. Fissile material is present in spent fuel in 

more concentrated form than in ore, but, by comparison with uranium ore, it is enormously radioactive. 

There are cheaper ways of getting uranium, by mining and even by a change in U.S. enrichment policy. 

(In unpublished work, Vince Taylor of PAN Heuristics has shown that the apparent uranium shortage 

of the 1980s has been effectively created not only by 

inflated projections of nuclear power and the derived 
171

demand for uranium but also by U.S. policies that (1) 

envision adding substantially over the next 10 years to 

an already immense government stockpile--worth $8 

billion at current prices--of enriched and natural uranium, (2) leave an excessive amount of uranium-235 

in the waste streams of the enrichment plants, thus 

inflating the amount of natural uranium that must be 

fed into the plants, and (3) force customers to stick 

to schedules for delivering uranium for enrichment 

which they contracted for before the recent substantial cut backs in nuclear power programs both here 

and abroad.) But even if one were absurdly optimistic 

about the costs of using plutonium fuel for light water 

reactors, the private cost savings would be trivial. The 

political and social costs plainly dominate.

As for Point 3, plutonium separation would remove 

most of the longest-lived radioactive actinides, and so, 

it has been hoped, would economize in packaging and 

compacting wastes. However, spent uranium fuel can 

be stored without reprocessing and recent study indicates that the process of separation will contaminate 

much of the equipment, filters, solvents, etc., used and 

that the total volume and heat content of the waste 

so created and of the spent plutonium fuel which will 

require remote handling and geologic isolation will 

exceed those of the unreprocessed spent fuel.

On Point 4, the present schedule calls for ERDA 

recommendations on a commercial breeder in 1986. If 

the decision is positive, it is hoped that the first commercial breeder will start operating in the mid-1990s. 

We can, therefore, defer the decision on plutonium 

separation for at least 5 years.30 In fact, the spent fuel 

would cool enough in that period to make separation 

easier, and the savings would nearly pay for the storage costs. This fourth argument is, however, reveal-
172

ing. It is motivated in good part by a desire to force a 

positive decision on a commercial plutonium breeder-

-another case of premature commitment. The domestic U.S. decision on plutonium separation has obvious 

international implications and it is these that will impose the largest political and social costs.

POLICIES

The last year has seen a salutary ferment about 

changing policy so as to discourage nuclear proliferation. Proposals range from David Lilienthal’s recommendation, at one end, to stop all nuclear exports, 

through the bureaucracy’s, at the other, which suggests that we continue pretty much as we are. Rather 

than engage in a detailed analysis of this wide range 

of proposals, I will set down summarily a program indicated by my argument so far.

ON THE DEMAND SIDE

Slowing the spread of nuclear weapons means reducing the demand for them, as well as restricting the 

supply of nuclear weapons material. Political and military policy on alliances, on nuclear guarantees, and 

on non-nuclear military sales and assistance should be 

directed to help in nonnuclear defense against nonnuclear threats and to provide nuclear guarantees 

against threats of nuclear coercion or attack. I have 

illustrated the sort of thing needed in my earlier remarks about South Korea. But such a policy has to be 

shaped country-by-country and does not lend itself to 

easy summary.
173

ON THE SUPPLY SIDE

1. Deny access to readily fissionable material. We 

need to state as a general guide for U.S. domestic as 

well as export policy that it is our plain purpose to 

deny access by individual terrorists, either here or 

abroad, and to deny access by governments of noweapon states to nuclear materials that can be readily 

converted to explosive use. This principle should be 

the basis for our negotiations in the suppliers group 

where we will then be able to say we not only advocate it but illustrate it. The general principle has implications spelled out in many more detailed policy 

suggestions.

2. Delay for at least 5 or 10 years any decision to 

separate plutonium in the United States.

3. Press actively for fuel cycle designs which would 

eliminate access to highly enriched uranium or chemically separated plutonium in power reactors and research reactors. Up to now, this has not been part of 

any design criterion.

4. Continue to deny export licenses for isotope enrichment facilities and plutonium separation plants.

5. Provide to any no-weapon state low enriched 

uranium services at nondiscriminatory prices provided that the importer agrees (a) not to acquire further 

enrichment facilities or plutonium separation facilities, (b) to place all its nuclear facilities under IAEA 

safeguards, (c) not to acquire nuclear explosives, and 

(d) not to acquire fissile material quickly convertible to 

explosive use. We should make new commitments for 

the sale of nuclear technology only under these conditions. Though we have no shortage of enrichment 

capacity, it may be prudent to expand our enrichment 

capacity because it is critical for exercising control, 
174

and for assuring supplies of low-enriched uranium to 

importers who live up to their agreements. We should 

alter our perverse enrichment policy which has done 

much to create the appearance of a shortage of uranium and of enrichment. We should first start to reduce 

our $8 billion stock of natural and low-enriched uranium; second, permit customers to cancel or defer dates 

for delivering uranium to be enriched; and third, start 

operating our enrichment plants, subject to capacity 

constraints, so as to minimize the amount of uranium 

needed to produce nuclear fuel for our customers.

6. Where we supply low enriched uranium to noweapon states, either lease it or otherwise arrange for 

its return. (The Soviet Union apparently does this.) 

Spent fuel so returned would make up a small percentage of the enormous radioactive wastes from our 

military program and our own domestic power program.

7. In the future, when centrifuge or laser separation facilities might otherwise become widespread, 

consider transfers of enrichment technology to an 

international or multinational center that would provide only low enriched uranium (and not plutonium 

fuel) services to no-weapon states. However, do not 

encourage plutonium separation in such centers with 

or without the fabrication of mixed plutonium and 

uranium oxide fuel. If such centers shipped out separated plutonium to no-weapon states, it would be immediately available for explosives. And plutonium 

is much more easily separated chemically from fresh 

unirradiated mixed oxide fuel than from spent fuel. 

Low enriched uranium is not an explosive, however, 

plutonium separated from reactor fuel is.

8. Deny further assistance for critical experiments 

in national laboratories of no-weapon states, since 
175

these experiments involve access to unirradiated or 

only lightly irradiated readily fissionable material. 

Where warranted, provide for U.S. or possibly multinational or international facilities for the conduct of 

critical experiments by no-weapon states.

9. Deny licenses for the export to no-weapon states 

of research reactors with highly enriched uranium 

cores or significant plutonium output unless the total nuclear program for an importing country will not 

permit it to derive enough readily fissionable materials for weapons.

10. Change Export-Import Bank policy so that its 

loans and the private loans it guarantees will support 

rather than defeat the preceding recommendations.

11. Offer further financial and technical assistance 

to IAEA to improve safeguards, but alter trilateral 

agreements to permit and require IAEA to report on 

the location, size, and chemical and physical composition of all stocks of readily fissionable material monitored under these agreements. The improvements in 

IAEA inspection to detect violations will be useful if, 

and only if, export agreements are altered so that accumulating readily fissionable material becomes a violation, whether accounted for or not. Presently, IAEA 

centers its attention on the “limits of error in material 

unaccounted for” (LEMUF) without reporting on the 

legal accumulation of explosive materials.

The best maxim to keep in mind is that of Florence Nightingale: “Whatever else hospitals do, they 

shouldn’t spread disease.” On these complex issues, it 

has been all too easy to advance resounding programs 

to slow the spread of weapons which actually speed 

it. That is how we got into the present fix, as did Atoms for Peace and some of the incompatible clauses of 
176

the NPT. Using the 18th century language of natural 

law from our Declaration of Independence, the NPT 

asserts the “inalienable right” of all countries to peaceful nuclear energy--which includes, some exporters 

apparently feel, reprocessing. We have then the new 

natural right to Life, Liberty, and the Pursuit of Plutonium.

And now most recently each side in the last presidential campaign showed how the multinational form 

can distract from substance in slowing the spread. 

Each sometimes contemplated not only the return of 

spent uranium fuel but using multinational centers 

for making and distributing fresh mixed plutonium 

and uranium oxide fuels. Yet, plutonium for use in explosives is much more easily extracted from the fresh 

mixed oxides than from the spent uranium fuel. The 

word “multinational” tends to give many opponents 

of the spread a warm feeling all over, unless it is followed immediately by the word “corporation.” But 

this cure would simply spread the disease. Here it is 

essential to focus our aim precisely on the substance 

rather than the symbol. Multinational centers for the 

distribution of bomb material will not help.

ENDNOTES - CHAPTER 7

1. Isotopes of the same heavy element, such as uranium-235 

and uranium-238, undergo the same chemical reactions at almost 

the same reaction rates and therefore cannot be separated by any 

known conventional chemical means, but so far only by an expensive, difficult, and time-consuming physical process that exploits slight differences in atomic mass. The fissile isotopes are 

those that are readily fissionable by slow or thermal neutrons as 

well as fast neutrons.

2. U.S. Senate, Committee on Government Operations, Hearings on S. 1439. testimony by Robert J. McCloskey, Department 
177

of State, June 16, 1976, p. 811.

3. Indeed, we attached a “related note” to our agreement 

with Spain of March 20, 1974, which said, “It is understood that 

the material subject thereto will not be used for any nuclear explosive device, regardless of how the device itself is intended to 

be used. . . .” We signed the note, but Spain did not.

4. For a more extended analysis, see Chap. III, Moving Toward Life in a Nuclear Armed Crowd?, a Pan Heuristics report to the 

Arms Control and Disarmament Agency. A revised edition will 

be published by the University of Chicago Press. 

5. For example, it said “. . . the development of more ingenious methods . . . which might make this material effectively 

usable is not only dubious, but is certainly not possible without 

a very major scientific and technical effort,” pp. 26-27, but also 

unequivocally that “the limit between what is safe and what is 

dangerous . . . will not stay fixed” in “what is sure to be a rapidly 

changing technical situation,” p. 10. U.S. Department of State, 

Publication 2497, March 15, 1946. 

6. The committee included Robert Oppenheimer and C. A. 

Thomas, who, among the authors of the Acheson-Lilienthal Report, were the two qualified to speak on the subject. Its statement 

was issued on April 9, 1946.

7. The ambivalence and inconsistency were present at the 

start. Like Leo Szilard, who had been cautious about denaturing 

a few months earlier, Glenn Seaborg, whose team had discovered 

plutonium in 1941, signed the final draft of the Franck Report 

which stated flatly that “denaturalization of pure fissionable isotopes . . . [would] make them useless for military purposes.” Yet 

Seaborg, commenting on early drafts, had written, “Can’t denature 49 by dilution with stable isotopes.” “Forty-nine” was the 

wartime code for the element 94, plutonium. The James Franck 

papers, University of Chicago Regenstein Library. 

8. “Nuclear Experts Give Warning on Build-up of Untreated 

Waste Fuel,” The Times, London, May 25, 1975.

9. Guy Hawtin, “East Bloc Aids Bonn Anti-Nuclear Groups,” 
178

Financial Times, London, UK, May 22, 1976.

10. Address by Louis de Guiringaud, June 19, 1976, New 

York: Service de Presse et d’Information, 1976, No. 76/95, p. 3. In 

September 1976, the French cabinet reconsidered such dangers, 

though not as a result of any clear message from the State Department. Michel Tatu, Le Monde, September 9, 1976.

11. Dr. G. Hildebrand, Lecture, “The Fuel Cycle and the Export Situation,” to visiting embassy representatives at the Kraftwerk Union plant in Mülheim, West Germany, April 10, 1976.

12. “Spent Nuclear Fuel and Radioactive Waste,” Statens 

Offentlige Utredningar, Document No. 32, Stockholm, Sweden: 

Libervorlag, 1976, p. 43.

13. Carl Walske, “Nuclear Energy Environment in the United 

States,” Paper presented at a conference in Madrid, Spain, May 

4, 1976.

14. The Atomic Industrial Forum’s Committee on Nuclear 

Export Policy, U.S. Nuclear Export Policy, July 21, 1976, p. 3.

15. Letter to Congressman Findley from Denis M. Neill, Assistant Administrator for Legal Affairs, Agency for International 

Development, Department of State, August I8, 1975.

16. The spent fuel had 13 kg of plutonium that was 95 percent, 110 kg that was 93 percent, and 331 kg that was 89 percent 

purely fissile.

17. Hildebrand.

18. Memorandum from Oppenheimer to Farrell and Parsons, 

July 23, 1945, Top Secret, Manhattan Engineering District Papers, 

Box “14,” Folder 2, Record Group 77, Modern Military Records, 

National Archives, Washington, DC, Declassified in 1974.

19. Memorandum to the Chief of Staff by General Leslie 

Groves, July 30, 1945, Top Secret, Manhattan engineering District 

Papers, Box “3,” Folder 5B. Declassified in 1972.
179

20. See Richard G. Hewlett and Oscar F. Anderson, Jr., The 

New World, 1939/1946, Volume I, A History of the United States 

Atomic Energy Commission, University Park, PA: The Pennsylvania State University Press. 1962, p. 321.

21. See, e.g., Walske; and Hildebrand.

22. “GWe” is gigawatts, that is, thousands of megawatts of 

electrical capacity.

23. Estimates of uranium requirements vary with precise assumptions as to the percentage of uranium-235 left in the tailings 

by the process of enrichment, the rate of growth in reactors, the 

capacity factor or percentage of time the reactors are generating 

electricity; and such technical characteristics of reactor operation 

as fuel enrichment levels, fuel burnup levels, and frequency of 

reloads. These earlier estimates assume 80 percent capacity factors. The 1976 forecast assumes a 70 percent capacity factor. I assume .2 percent tails assay throughout.

24. John Patterson, chief of the Supply Evaluation Branch, 

Division of Fuel Cycle Production, “Uranium Supply Developments,” Paper presented at the Atomic Industrial Forum Fuel 

Cycle Conference, Phoenix, Arizona, March 22, 1976. More recently, ERDA has estimated an attainable U.S. production capacity of 47,000 tons of yellow cake at the $15 cost level by 1985 and 

60,000 tons by about 1990. According to Nucleonics Week, September 23, 1976, ERDA summed up, “The information we have today indicates that there is a good possibility that uranium will be 

available at reasonable prices.” 

25. End 1976 estimates are taken from Nuclear News, “World 

List of Nuclear Power Plants,” August 1976, pp. 66-79.

26. See U.S. Congress, Joint Committee on Economics, Review 

and Update of Cost-Benefit Analysis for the Liquid Metal Fast Breeder 

Reactor, May 17, 1976, Washington, DC: Government Printing Office, 1976, p. 18.

27. Financial Times, London, UK, December 9, 1975. American 

loss estimates by R. Cornell of E. F. Hutton.
180

28. Chemical Engineering, January 6, 1975, p. 68.

29. Nucleonics Week, July 12, 1976, p. 8.

30. On ERDA’s projections the plutonium then available from 

light water reactor fuel will be over three times more than the 

amount needed by breeders at the end of the century. Moreover, 

even ERDA’s low growth projections for the breeder presume an 

unrealistically early and rapid build-up of commercial breeders.
181

CHAPTER 8

FALLING BEHIND:

INTERNATIONAL SCRUTINY OF THE 

PEACEFUL ATOM*

Henry Sokolski

OVERVIEW

Some Negative Trends.

On a number of counts, the International Atomic 

Energy Agency (IAEA) safeguards system appears to 

be getting better. After more than a decade of no real 

growth, annual funding for nuclear inspections finally 

was increased in real terms from $89 million in 2003, 

to $102 million in 2004, and to $108 million in 2007. 

Deployment of advanced remote monitoring equipment is on the rise and implementation of new, more 

intrusive inspections authority under the Additional 

Protocol is moving forward. In the future, nuclear 

power might expand, but most of this expansion will 

take place in nuclear weapons states or countries that 

are so trustworthy that it could be argued that few, 

if any, additional nuclear inspections may be needed. 

As for additional safeguards requirements—e.g., inspections in India, North Korea, or Iran—they might 

well be met with additional contributions when and if 

they arise. From this perspective, current safeguards 

budgeting and planning could be viewed as being adequate to the task for years to come.1

____________

*Originally published in Henry Sokolski, ed., Falling Behind: 

International Scrutiny of the Peaceful Atom, Carlisle, PA: Strategic 

Studies Institute, U.S. Army War College, 2008, pp. 3-61.
182

It could, that is, until other, less positive trends are 

considered. Of these, perhaps the most important deal 

with the number of significant quantities of nuclear 

material that the IAEA must safeguard to prevent 

it from being diverted and directly fashioned into 

bombs. This number is not only growing, but growing a rate far faster than that of the IAEA’s safeguards 

budget. The amount of separated plutonium (Pu) 

and highly enriched uranium (HEU)—both nuclear 

fuels that can be fashioned into bombs in a matter of 

hours or days—that the IAEA inspects, for example, 

has grown more than six-fold between 1984 and 2004 

while the agency’s safeguards budget has barely doubled (see Figure 1). Meanwhile, the number of nuclear 

fuel fabrication and fuel making plants (facilities that 

are by far the easiest to divert nuclear material from) 

has grown in the last 2 decades from a mere handful to 

65. Then, there is the number of other plants containing special nuclear material that the IAEA must safeguard: it has roughly tripled to more than 900 facilities 

today.2
183

Figure 1. IAEA Safeguards Spending vs.

Mounting Weapons Usable Material Stockpiles.

These trends have forced the IAEA to work their 

inspections staff much harder. Over the last 20 years, 

the number of days IAEA inspectors have been in the 

field has nearly doubled from 60 to 70 days to 125 to 

150.3

 This doubling has not only cost more money, it is 

one of the reasons (along with unreasonable employment and contracting rules) for a hollowing out of 

IAEA’s experienced inspections staff. This hollowing 

out is expected to become acute. As noted by the U.S. 

Government Accountability Office, about 50 percent, 

or 30 out of 75, of the IAEA’s senior safeguards staff 

are expected to retire by 2011.4

One way to address this inspections crunch is to 

have the IAEA simply inspect less. This could be done 

legally by implementing the Additional Protocol. In 

fact, limiting the number of routine safeguards inspections is one of the incentives the IAEA currently offers 

countries to sign up to the Additional Protocol. Once 

From 1984 to 2004, IAEA 

safeguards spending 

roughly doubled $105 m in 

constant ’04 dollars.

Amounts of HEU and 

separated Pu, meanwhile, 

grew nearly 6-fold—enough 

to make 12,000 to 21,000 

crude nuclear weapons
184

a country has ratified the Additional Protocol and the 

IAEA has established that there “is no indication of 

undeclared nuclear material activities for the state as a 

whole,” the agency can reduce the number of routine 

nuclear inspections it makes of that country’s nuclear 

materials and facilities significantly.5

The trouble with taking this approach, though, is 

that initially it actually increases the amount of staff 

time and resources that the IAEA would have to 

spend to safeguard a given country. It turns out that 

determining whether or not a country has no undeclared nuclear materials activities takes considerable 

safeguards staff resources.6

 Over the entire lifetime of 

a nuclear facility (i.e., 20 to 50 years), then, applying 

integrated safeguards might reduce the total amount 

of staff time needed to safeguard a particular set of 

nuclear plants slightly, but in the first few years, more, 

not less, staff time and safeguards resources would be 

consumed.7

Also, the Additional Protocol authorizes the IAEA 

to conduct wide area surveillance inspections. These 

would be extremely useful in the case of Iran or North 

Korea. They also would require significant additional 

safeguards staff and funding (by one estimate made 

for the Nonproliferation Education Center [NPEC] 

by a seasoned former IAEA inspector, perhaps an increase in funding constituting as much as 30 percent 

of the IAEA’s entire current safeguards budget8

). So 

far, the IAEA has done nothing to establish such an 

inspections capability.

Finally, relying heavily on integrated safeguards 

may be unsound in principle. As already noted, they 

require the IAEA to determine that the country in 

question has no undeclared nuclear material. Yet, 

the IAEA’s safeguards staff itself has admitted that it 
185

cannot yet be relied upon to discover covert nuclear 

fuel-making facilities in the hardest cases (e.g., Iran). 

Also, reducing the frequency of on-site inspections 

increases the risks that a member state might divert 

materials to make bombs without the IAEA finding 

out until it is too late. 

In a detailed study completed for NPEC late in 

2004 on the proliferation risks associated with light 

water reactors, several scenarios were presented under which fresh and spent nuclear fuel rods might be 

diverted to make nuclear weapons fuel in covert reprocessing or enrichment plants in a matter of days 

or weeks without tipping off IAEA inspectors9

 These 

scenarios were subsequently validated independently 

by key officials working within the IAEA’s Standing 

Advisory Group on Safeguards, the U.S. Department 

of State, and the Los Alamos National Laboratory.10

That a country could evade IAEA inspectors in 

diverting entire fuel rods is disquieting. One would 

assume that the current crop of IAEA remote nuclear 

monitoring equipment could be counted upon entirely 

to warn against such diversions. In fact, they cannot.11

Most of the currently deployed remote sensors, in fact, 

do not allow the IAEA even to know from day to day 

whether these systems are activated. This is a serious 

shortcoming. Over the last 6 years, the agency has 

learned of camera “blackouts” that lasted for “more 

than 30 hours” on 12 separate occasions. What’s worse, 

it only learned of these blackouts after inspectors went 

to the sites and downloaded the camera recordings as 

they are required to do every 90 days.12

Under new proposed “integrated safeguards” 

procedures, such “downloading,” moreover, would 

occur as infrequently as every 12 months—a period 

within which a state could conceivably make a nuclear 
186

weapon unbeknownst to the IAEA.13 The IAEA staff 

recently proposed to correct this inspections gap by 

accelerating implementation of near real-time monitoring using satellite communication connections. 

This effort, though, is still being implemented at an 

excruciatingly slow pace due to a lack of funds.14

Structural Problems.

The current gap in the IAEA’s near-real time monitoring capabilities may be worrisome but it, at least, 

can be addressed if additional safeguards funding is 

made available. Far more intractable is the IAEA’s inability to detect diversions in a timely manner from 

nuclear fuel-making plants. As already noted, NPEC’s 

earlier study on the proliferation dangers associated 

with light water reactors highlighted the relative ease 

with which states might build covert reprocessing 

plants or divert spent civilian fuel to accelerate undeclared uranium enrichment efforts.

Additional NPEC commissioned research detailed 

just how poorly IAEA safeguards have performed at 

nuclear fuel plants in Europe and Japan. In his study, 

“Can Nuclear Fuel Production in Iran and Elsewhere 

Be Safeguarded against Diversion,”15 Dr. Edwin Lyman highlights several examples. At a fuel fabrication 

plant at Tokai-mura in Japan making mixed-oxide 

(MOX) fuel out of powdered uranium and nuclear 

weapons-usable separated plutonium, the IAEA 

could not account for 69 kilograms of plutonium. This 

is enough to make at least nine nuclear weapons (assuming the IAEA’s 8 kilograms per weapon estimate) 

or twice that figure (assuming the U.S. Department of 

Energy’s more accurate 4 kilograms per crude nuclear 

weapon figure). Only after the passage of 2 years, the 
187

expenditure of $100 million, and the disassembling of 

the plant could the operator claim that he could account for all but 10 kilograms (i.e., one to two bombs 

worth).16

Dr. Lyman details a similarly disturbing incident involving MOX scrap in Japan where at least one bomb’s 

worth of weapons-usable plutonium went missing and 

another accounting discrepancy at a Japanese reprocessing plant at which the IAEA lost track of between 

59 and 206 kilograms of bomb-usable plutonium (and 

was able to determine this only years after the material 

initially went unaccounted for). Add to these discoveries the many bombs’ worth of material unaccounted for 

(MUF) annually at reprocessing plants in France and 

the United Kingdom (UK) where the IAEA has employed its very latest near-real time monitoring techniques, and there is cause for alarm.17 

The picture relating to safeguarding centrifuge enrichment plants is not much brighter. Even at plants 

where IAEA monitoring and inspectors are on site, 

there will be times in between inspections during which 

remote monitoring might be defeated. There also is the 

constant problem of the operator giving false design, 

production, or capacity figures.18

In any case, the times between a decision to divert 

and having enough material to make a crude bomb (assuming the IAEA’s high estimate of 25 kilograms of 

highly enriched uranium being required to make one 

weapon) are so short, even an immediate detection of 

the diversion, which is by no means assured, would 

generally come too late to afford enough time to prevent bombs from being made. In the case of a small 

commercial-sized plant, a bomb’s worth could be made 

in as little as 18 hours to 12 days (depending on whether 

natural or slightly enriched uranium is used as feed).19
188

SAFEGUARDS ASSUMPTIONS

Exacerbating this safeguards gap is the IAEA’s 

overly generous view of how much material must be 

diverted to make a bomb (referred to by the IAEA as a 

“significant quantity”) and how long it might take to 

convert this material into a nuclear weapon (known as 

the “conversion time”). Most of these IAEA estimates 

were made over 30 years ago. To reassess their accuracy, NPEC commissioned Thomas Cochran, chief nuclear scientist at the Natural Resources Defense Council (NRDC), to make new determinations. His analysis 

and conclusions were revealing. The IAEA estimates 

it would take eight kilograms of separated plutonium 

and 25 kilograms of highly enriched uranium to make 

a crude bomb. Cochran found these estimates to be 

too high by a minimum of 25 percent and a maximum 

of 800 percent, depending on the weapons expertise 

employed and the yield desired (see Figure 2).20

Figure 2. NRDC Estimate of the

Approximate Fissile Material Requirements

for Pure Fission Nuclear Weapons.

When presented with these figures, senior IAEA 

safeguards staff did not dispute them. Instead they 

argued that the “exact” amount of diverted nuclear 

material needed to make a crude bomb was not im-
189

portant. Instead, what mattered most was the IAEA’s 

ability to detect microscopic amounts of weapons 

usable materials since securing such environmental 

samples was the factor most likely to put an inspected 

party in the international spotlight.21

The potential downside of taking this approach, 

however, is significant. It is these estimates, along with 

the agency’s projections of how long it takes a proliferator to convert uranium and plutonium materials into 

bombs (i.e., conversion times), that the IAEA uses to 

determine how often it should conduct its inspections 

of different nuclear facilities. If these estimates are too 

high, the frequency of inspections needed to detect 

military diversions risks being egregiously low. Certainly, what the IAEA defines as desirable “detection 

times”—the maximum time that may elapse between 

the diversion of a significant quantity of nuclear material and the likely detection of that diversion—should 

correspond (according to the IAEA’s own guidelines) 

to the agency’s estimated conversion times. If they do 

not, IAEA-inspected countries could count on being 

able to divert a crude weapon’s worth of nuclear material and fashioning it into a bomb before the IAEA 

could either detect the diversion or have any chance 

of taking appropriate action to block bomb making.

This worry seems quite legitimate when one considers how high the IAEA’s 30-year old significant 

quantity estimates appear to be and then looks at how 

generous the IAEA’s estimated conversion times are 

(see Figure 3).
190

Figure 3. Conversion Times.22

Using the history of the Manhattan Project as a 

benchmark, the IAEA’s first set of estimates regarding the amount of time (7 to 10 days) needed to convert separated plutonium or HEU or U233 metal were 

judged by Dr. Cochran to be the correct order of time. 

The key reason why is that in 1945, the plutonium and 

enriched uranium for the first American bombs had to 

be shipped thousands of miles from where they were 

produced to where the material was fashioned into 

nuclear weapons. This transport took several days. If a 

country making nuclear weapons did not have to ship 

these distances, the conversion time could be much 

shorter. However, the conversion times could still be 

on the order of a day or more.

The IAEA’s estimates of how long it would take (1 

to 3 weeks) to convert fresh plutonium-uranium fuels 

(known as mixed oxide fuels or MOX) do not fare as 

well. Here, Dr. Cochran points out that it would take 

no more than a week and possibly as little as a few 

days to convert these materials into metal bomb comBeginning Material Form Conversion Time

Pu, HEU, or 233U metal Order of days (7-10) 

PuO2, Pu(NO3)4 or other pure Pu compounds, Order of weeks (1-3)* 

HEU or 233U oxide or other pure U compounds, 

MOX or other nonirradiated pure mixtures 

containing Pu, U (233U + 235U > 20%), 

Pu, HEU, and/or 233U in scrap or other 

miscellaneous impure compounds 

Pu, HEU, or 233U in irradiated fuel Order of months (1-3) 

U containing <20% 235U and 233U, Th Order of months (3-12) 

_____________________________________________________________________________ 

*This range is not determined by any single factor, but the pure Pu and U compounds 

will tend to be at the lower end of the range and the mixtures and scrap at the higher 

end. 
191

ponents. Instead of a matter of weeks, he concludes 

that the correct conversion time should be measured 

in a matter of days. 

As for the IAEA’s conversion time estimates of 1 to 

3 months for plutonium, HEU, or U233 contained in 

irradiated spent reactor fuel, these were also judged to 

be accurate only if the country possessing these materials did not have a covert or declared reprocessing or 

enrichment plant. If the country in question did, then 

it could possibly convert the spent fuel into bombs in 

a matter of weeks rather than months.

Finally, Dr. Cochran agreed with the IAEA’s low 

end estimated conversion time of 3 months for low enriched uranium but, with the increased international 

availability of gas centrifuge uranium enrichment 

technology, found the IAEA’s high end estimate of 12 

months to be totally unwarranted. In fact, as already 

noted, a country might well be able to convert low enriched uranium into a bomb in a matter of weeks or 

less.23 

The policy ramifications of these overly generous 

IAEA estimates are significant. They directly impact 

what the IAEA’s detection goals should be. In three 

cases—the conversion of low enriched uranium, the 

conversion of plutonium, HEU, and U233 metal conversion—the order of time associated with the IAEA 

estimates is correct. In another three cases, however—

the conversion of plutonium, HEU, and U233 in MOX 

(and conversion of these materials in spent fuel and of 

low enriched uranium if the inspected country has a 

covert or declared nuclear fuel-making facilities)—the 

IAEA’s estimates are egregiously high. IAEA conversion times are measured in months when they should 

be measured in weeks and in weeks when they should 

be measured in days. 
192

As a result, the IAEA‘s timeline detection goals in 

many cases are dangerously high. More important, 

the agency’s current detection goals give the mistaken 

impression that the IAEA can detect military diversions before they result in bombs or even early enough 

to prevent the diversion from succeeding when this 

clearly is not the case. Dr. Cochran’s analysis highlights that timely detection of plutonium, HEU, and 

U233 in metal and in fresh MOX is simply not possible. He concludes that countries that do not yet have 

nuclear weapons should not be allowed to stockpile 

or produce these materials. He reaches the same conclusion regarding the agency’s ability to detect diversions of plutonium, HEU, and U233 in spent fuel in 

nonweapons states that may have a declared or covert 

enrichment or reprocessing plant. In these cases, the 

problem is not that the IAEA’s timeliness detection 

goals are too liberal; it is the IAEA’s claims that timely 

detection is possible at all (see Figure 4). 
193

Figure 4. IAEA Detection Times.

To some extent, these critical conclusions are gaining official support. As the IAEA’s former director for 

safeguards recently explained, when it comes to nuclear fuel making, the IAEA is must rely on its limited 

ability to ascertain the inspected country’s military intent.24 Even the director general of the IAEA conceded 

that once a country acquires separated plutonium and 

HEU, the IAEA must start relying on these states’ continued peaceful intentions, which could change rapidly. Unfortunately, the IAEA’s Board of Governors and 

major governments, including the United States, do 

not yet appreciate the full implications of these points. 

If the IAEA cannot provide timely detection of 

MATERIAL IAEA 

Conversion 

Time 

Cochran/NPEC 

Commissioned 

Estimate 

Official 

IAEA 

Timeliness 

Detection 

Goal 

Cochran 

Conclusions 

and 

Recommended 

Timeliness 

Detection 

Goals 

Pu, HEU, 

U233 in metal 

form 

Order of 

days (7-10) 

Order of days 

(7-10) 

1 month Timely 

detection is 

not possible 

In fresh MOX Order of 

weeks (1-3) 

Order of days 

(7-10) 

1 month Timely 

detection is 

not possible 

In irradiated 

spent fuel 

Order of 

months (1-

3) 

Order of 

months (1-3), if 

reprocessing -

enrichment 

plant on tap (7-

10 days 

3 months For countries 

with covert or 

declared 

nuclear fuelmaking plants, 

timely 

detection is 

not possible 

Low enriched 

uranium 

Order of 

months (3-

12) 

Order of weeks 

to months 

1 year For countries 

with covert or 

declared 

enrichment 

plants, timely 

detection is 

not possible 
194

diversions of weapons-usable HEU and plutonium 

from centrifuge enrichment, spent fuel reprocessing, 

and other fuel-making plants, how can it claim that 

it is “safeguarding” such facilities in Brazil, the Netherlands, Germany, and Japan? How can it effectively 

safeguard an Indian reprocessing plant (as is being currently proposed by the Indian government as a way to 

allow for the reprocessing of foreign fuel for use in an 

unsafeguarded Indian breeder reactor)? What of the 

idea of promoting regional nuclear fuel-making centers in nonweapons states, such as Kazakhstan? How 

might the IAEA prevent diversions?25

What of other more ambitious missions for the 

IAEA? If one cannot keep track of many bombs’ worth 

of nuclear weapons-usable material produced annually at declared civilian nuclear fuel-making plants, or 

assure that the plants themselves would not be taken 

over by nonconforming parties, how much sense does 

it make to encourage the IAEA to oversee an even 

more difficult to verify military fissile production 

cut-off treaty?26 Finally, there is the question of large 

research reactors and nuclear power plants, which 

require lightly enriched fuel to produce significant 

quantities of plutonium. If the IAEA cannot reliably 

ferret out covert nuclear fuel-making programs, how 

safe is it to export the necessary machinery to new 

countries particularly in war-torn regions such as the 

Middle East? 

The questions here are all intentionally rhetorical. 

Yet, many experts and officials within the IAEA and 

the U.S. and other governments actively support at 

least one or more of the questionable nuclear initiatives referred to. This needs to change. One of the Cochran report’s key recommendations is to encourage 

governments and the IAEA to reassess the agency’s 
195

estimates of what constitutes a significant quantity 

along with the conversion times for various materials 

and what the proper detection goals should be for the 

agency. The most important part of this reassessment 

is clarifying precisely what nuclear materials and activities—i.e., militarily significant diversions—IAEA 

inspections cannot be counted on to detect in a timely 

fashion. These activities and materials include plutonium, HEU, and U233; making MOX; enriching uranium with centrifuges; reprocessing and fabricating 

plutonium-based fuels; and operating large research 

or power reactors in nonweapons states that might 

have covert or declared nuclear fuel-making plants. 

For these nuclear activities and materials, the 

IAEA would do well simply to declare that the agency 

can monitor, but not safeguard them—i.e., that it can 

surveill these facilities and materials loosely but not 

assure detection of their possible military diversion 

in a timely fashion. Such an honest announcement 

would be helpful. First, it would put governments on 

notice about how dangerous the conduct of certain 

nuclear activities most closely related to bomb making actually are. Second, it would encourage countries 

to demand more monitoring and physical security of 

these unsafeguardable nuclear materials and activities. The primary aim in increasing such security and 

monitoring would not be to block diversions so much 

as to increase the chance of at least detecting them after they had occurred. This would help to deter such 

deeds and to limit further the risks of nuclear theft or 

sabotage. It is difficult to determine what the optimal 

level of monitoring and physical security might be for 

this purpose. But a good place to start would be to upgrade physical security at nuclear facilities handling 

or producing nuclear weapons-usable materials to 
196

those standards currently employed at the most secure 

nuclear weapons production and storage facilities.

FUNDING

As already noted, the IAEA’s inspections of safeguardable nuclear materials and activities could be 

enhanced in a number of ways. More near-real time 

monitoring could significantly enhance the agency’s 

ability to detect the diversion of fuel rods. Retention 

and increasing the numbers of experienced nuclear 

inspectors could help assure that the IAEA actually meets its temporal detection goals and is able 

to analyze remote sensing information and imagery 

properly. Full support for the IAEA’s environmental 

sampling activities would enable it to replace its aging Safeguards Analytical Laboratory and help the 

IAEA shorten the time needed to analyze samples 

from months to weeks or days. Much needed work to 

develop new safeguarding research capabilities and 

equipment could proceed much more quickly if more 

funds were made available27 Similarly, with proper 

funding, the IAEA could muster reserve inspections 

staff and resources to meet unexpected demands and 

to provide the agency with deployable wide-area surveillance capabilities.

The first step to address these current gaps is 

simply to admit that they exist. For years, the IAEA 

has avoided doing this publicly. At the very outset 

of NPEC’s investigations, early in 2005, the IAEA’s 

safeguards planning staff briefed NPEC that it believed safeguards funding for the mid-term (i.e., the 

following 5 years) was sufficient. It conceded that it 

had given little or no thought to what funding agency 

safeguards might require beyond this period. 
197

Fortunately, in the last 2 years, the agency’s approach to safeguards planning has improved. Most 

recently the IAEA’s director general highlighted the 

agency’s lack of safeguards funding to deal with urgent inspections requirements associated with monitoring the shutdown of the reactor in North Korea. In 

a statement he made July 9, 2007, Dr. El Baradei explained that the IAEA was having difficulty obtaining 

the nearly 4 million euros needed to cover the monitoring costs. He went on to note:

The DPRK case clearly illustrates the need for the 

agency to have an adequate reserve that can be drawn 

upon to enable it to respond promptly and effectively 

to unexpected crises or extraordinary requests, whether in the areas of verification, nuclear and radiological 

accidents, or other emergencies. The agency’s financial vulnerability is also demonstrated by our current 

cash situation, which indicates that unless some major 

donors pay their outstanding contributions by the end 

of next month, the agency will have to draw from the 

Working Capital Fund in order to continue operations. 

And unless contributions are received by September, that 

Fund would be depleted. Finally, let me stress that the 

recent process of preparing and getting approval for 

the programme and budget for the next biennium has 

once again highlighted the urgent need for adequate 

resources to ensure effective delivery of the entire 

programme that you have requested. As I made clear 

during the last Board, even with the budget originally 

proposed by the Secretariat, the agency remains under-funded in many critical areas, a situation which, if 

it remains unaddressed, will lead to a steady erosion 

of our ability to perform key functions, including in 

the verification and safety fields.

At the conclusion of this statement, the director general then announced that he had initiated a study to 

examine the IAEA’s “programmatic and budgetary 
198

requirements” over the “next decade or so.” In addition, he announced his intention to create a high level 

panel to study options for financing the agency’s requirements.28

The director general’s announcement accords almost precisely with the recommendations Dr. Thomas 

Shea made to a select group of U.S. and European officials, including Dr. El Baradei’s top scientific advisor, 

Andrew Graham, at an NPEC-sponsored conference 

held in Paris, France, on November 13, 2006.29 In his 

brief, “Financing IAEA Verification of the NPT,” Dr. 

Shea argued that North Korea “provides a clear justification” for additional safeguards funding and that 

to secure it the Director General “should convene a 

council of wise men to assist in determining how best 

to respond in this matter.”30

As has been noted, the IAEA‘s funding is based 

on a United Nations (UN) formula that weights a donor country’s gross domestic product and other factors. This formula may be sensible for raising general 

funds, but for nuclear safeguards purposes, it produces several anomalies. Countries with no large reactors (e.g., Italy) are sometimes asked to pay in more 

than countries that have a score or more of them (e.g., 

the Republic of Korea). The UN assessment method 

also overlooks the actual inspections requirements 

imposed by particular nuclear facilities that are significantly higher than the norm. Nuclear fuel-making 

plants of any type, reactors that are fueled on-line, and 

fast reactors all impose additional inspection challenges that are significantly more stringent than other 

types of nuclear facilities. Inspecting or monitoring 

these facilities costs much more than it does for other 

nuclear plants, yet the operator or owner pays no premium to cover these additional expenses.
199

Finally, because the IAEA’s current approach to 

assessing its members for contributions fails to raise 

enough money for the Department of Safeguards, the 

agency must depend on additional voluntary contributions of cash and technical assistance. Almost all 

of the voluntary contributions come from the United 

States (amounting to roughly 35 percent of the IAEA’s 

safeguards budget.). That so much of the safeguards 

budget is paid for voluntarily by the United States is 

politically awkward since the agency’s most challenging inspections cases—e.g., India, Iran, North Korea, 

Taiwan, and South Korea—are all of special interest to 

Washington.31

Dr. Shea suggests several ways to increase funding 

for safeguards—ranging from setting up an endowment to selling bonds. All of them are worth pursuing but one of his ideas is particularly deserving: The 

customer (i.e., the inspected party) should pay. There 

already is a precedent for doing this. Taiwan, which 

the IAEA does not recognize as being an independent 

sovereign nation, does not pay as other nations do 

but instead pays what the IAEA estimates it costs the 

agency to inspect Taiwan’s plants. 

The Shea report recommends that the United 

States take the lead in getting the IAEA to help fund 

its safeguards activities with a user fee. The United 

States should continue to make its voluntary contributions but instead of making them as it currently does, 

Washington should justify them as representing a specific percentage cost associated with generating nuclear electricity annually in the United States. Japan, 

which also makes voluntary contributions, should be 

urged to do likewise. Agreement might subsequently 

be reached on an international standard, and this surcharge should be tacked on to the cost of electricity or 
200

other products these civilian plants produce. The last 

step would be to make the surcharge obligatory and 

assign all of the funds so raised to the IAEA’s Department of Safeguards. 

In addition to these funds, the agency should consider assessing an additional charge for the monitoring of unsafeguardable nuclear materials or facilities 

(e.g., nuclear fuel-making plants and nuclear weapons 

or near-nuclear weapons-usable fuels, etc.). Finally, an 

additional fee might be levied against nuclear facilities or plants that are particularly costly to the IAEA 

in meeting its own timeliness detection goals (e.g., for 

reactors fueled on-line).

RIGHTS

Some countries, of course, are likely to bridle at 

these proposals, arguing that imposing surcharges 

would interfere with their right to peaceful nuclear energy. These arguments, however, should be rejected. 

The exercise of one’s right to develop, research, and 

produce peaceful nuclear energy hardly extends to 

not paying what it costs to safeguard these activities 

against military diversion. Also, the premise behind 

the argument for nonpaying represents a dangerously 

distorted view of the nuclear rules, viz., that so long 

as a state can claim a nuclear material or activity has 

some conceivable civilian application, it has a right to 

so engage even if they are unprofitable commercially, bring their possessor to the very brink of having 

bombs, or cannot be safeguarded against military diversion. The danger of this over-generous interpretation of the NPT is obvious: It risks, as UN General Secretary Koffi Anan explained to the 2005 NPT review 

conference, creating a dangerous world full of nuclear 
201

fuel-producing states that claim to be on the right side 

of the NPT, but are, in fact, only months or even days 

from acquiring nuclear weapons.32

Luckily, as research conducted for NPEC makes 

clear, this interpretation of the NPT is wrong.33 The 

NPT makes no mention of nuclear fuel making, reprocessing, or enrichment. Spain, Romania, Brazil, and 

Mexico all tried in the late 1960s to get NPT negotiators to make it a duty under Article IV for the nuclear 

supplier states to supply “the entire fuel cycle” including fuel making, to nonweapons states. Each of their 

proposals was turned down.34 At the time, the Swedish 

representative to the NPT negotiations even suggested that rules needed to be established to prevent nations from getting into such dangerous activities since 

there seemed to be no clear way to prevent nations 

from quickly fabricating bombs by diverting either the 

fuel or the fuel-making plants to such a purpose.35 The 

Swedes were certainly were not interested in protecting uneconomical measures that are unnecessary and 

that could bring states to the brink of having bombs.36

A clear case in point was the NPT’s handling of 

peaceful nuclear explosives, which turned out to be 

so dangerous and impossible to safeguard that the 

treaty spoke only of sharing the “potential benefits” 

of peaceful nuclear explosives that would be supplied 

by nuclear weapons states. No effort, however, was 

ever made to request or to offer such nuclear explosives because they were so costly to use as compared 

to conventional explosives and no clear economic benefit could be found in using them.37

Finally, in no case did the framers of the NPT believe that the “inalienable right” to develop, research, 

or produce peaceful nuclear energy should allow 

states to contravene the NPT restrictions designed to 
202

prevent the proliferation of nuclear weapons. These 

restrictions are contained in Articles I, II, and III of the 

treaty. Article I prohibits nuclear weapons states from 

“assist[ing], encourag[ing], or induc[ing] any nonweapons state to manufacture or otherwise acquire” 

nuclear weapons. Article II prohibits nonweapons 

states from acquiring in any way nuclear explosives 

or seeking “any assistance” in their manufacture. Together these two prohibitions suggest that the NPT 

not only bans the transfer of actual nuclear explosives, 

but of any nuclear technology or materials that could 

“assist, encourage or induce” nonweapons states to 

“manufacture or otherwise acquire” nuclear explosives.38

If there was any doubt on this point, the NPT also 

requires all nonweapons states to apply inspection 

safeguards against all of their nuclear facilities and 

holdings of special nuclear materials. The purpose 

of these nuclear inspections, according to the treaty, 

is “verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing 

diversion of nuclear energy from peaceful uses to 

nuclear weapons.”39 It was understood at the time of 

the treaty’s drafting that it was hoped a way could be 

found to assure such safeguards. It, however, was not 

assumed that such techniques already existed.40

CONCLUSION

It would be useful to remind members of the IAEA 

of these points. The most direct and easiest way to 

begin is to make clear what can and cannot be safeguarded—i.e., what can and cannot be monitored so 

as to detect a military diversion before it is completed. 

Beyond this, the IAEA should requie the owner, 
203

operators, and customers of nuclear facilities to bear 

the costs associated with monitoring and safeguarding them. The hope here would be that the poor economics associated with large nuclear power reactors 

and nuclear fuel-making plants might persuade some 

nations to reconsider the desirability of acquiring 

them. Making sure that the full external costs of IAEA 

inspections are carried by each inspected party would 

be useful. The NPT, after all, is dedicated to sharing 

the “benefits” of peaceful nuclear energy, not conducting money-losing programs that bring countries 

to the brink of having bombs.41

ENDNOTES - CHAPTER 8

1. This line of argument was actually presented to NPEC’s 

executive director in a private briefing by the IAEA safeguards 

planning staff in Vienna early in 2006.

2. For data on the IAEA’s safeguards budget obligation in 

current—not constant—U.S. dollars, see The Agency’s Accounts for 

1984, GC(XXIX)/749, Vienna, Austria: IAEA, August 1985, p. 26; 

and The Agency’s Accounts for 2004, GC(49)/7, p. 47. For data on 

the amount of nuclear material safeguarded by the IAEA, see Annual Report for 1984, GC(XXIX)/748, Vienna, Austria: IAEA, July 

1985, p. 63; and Annual Report for 2004, GC(49)/5, Annex, Table 

A19.

3. Private interviews with safeguards staff and former IAEA 

safeguards inspectors at the Los Alamos National Laboratory, 

Los Alamos, New Mexico, May 12, 2005. 

4. See Gene Aloise, Director, Natural Resources and Environment, U.S. Government Accountability Office, “Nuclear Nonproliferation: IAEA Safeguards and other Measures to Halt the 

Spread of Nuclear Weapons Materials,” testimony before the 

Subcommittee on National Security, Emerging Threats and International Relations, Committee on Government Reform, House 

of Representatives, September 26, 2006. 
204

5. For a more detailed discussion of the Additional Protocol, 

see Richard Hooper, “The IAEA’s Additional Protocol,” Disarmament Forum “On-site Inspections: Common Problems, Different 

Solutions,” No. 3, 1999, pp. 7-16, available from www.unidir.ch/

bdd/fiche-article.php?ref_article=209.

6. For example, in the case of Japan, the IAEA needed 5 years 

to determine that it had no undeclared nuclear material activities, and estimates that it will need about as much time to make 

the same determination for Canada. See Nuclear Nonproliferation, 

Washington, DC: U.S. Government Accountability Office (USGAO), pp. 12-13.

7. According to IAEA internal analyses, the average lifetime 

savings in safeguards resources likely from implementing integrated safeguards may be no more than 5 percent. See C. Xerri 

and H. Nackaerts on behalf of the ESARDA Integrated Safeguards Working Group, “Integrated Safeguards: A Case to Go 

Beyond the Limits: Consequences of Boundary Limits Set to the 

Reduction of ‘Classical Safeguards Measures on Efficiency and 

Resources Allocation in Integrated Safeguards’” produced in 2003 

for the IAEA, available from esarda2.jrc.it/bulletin/bulletin_32/06.

pdf. For an official overview of the various safeguards resources 

required to implement the Additional Protocol, see Jill N. Cooley, “Current Safeguards Challenges from the IAEA View,” an 

IAEA document produced in 2003, available from esarda2.jrc.it/

events/other_meetings/inmm/2003-esarda-inmm-Como/1-paper%20

pdf/1-1-040127-cooley.pdf.

8. See Garry Dillon, “Wide Area Environmental Sample in 

Iran,” available from www.npec-web.org/Essays/WideAreaEnvironmentalSampling.pdf. 

9. See Victor Gilinsky, Harmon Hubbard, and Marvin Miller, 

A Fresh Examination of the Proliferation Dangers of Light Water Reactors, Washington, DC: The Nonproliferation Policy Education 

Center, October 22, 2004, reprinted in Henry Sokolski, ed., Taming the Next Set of Strategic Weapons Threats, Carlisle, PA: Strategic Studies Institute, U.S. Army War College, 2006, available 

from www.npec-web.org/Frameset.asp?PageType=Single&PDFFi

le=20041022-GilinskyEtAl-LWR&PDFFolder=Essays.
205

10. See, e.g., Andrew Leask, Russell Leslie, and John Carlson, 

“Safeguards As a Design Criterion—Guidance for Regulators,” 

Canberra, Australia: Australian Safeguards and Non-proliferation Office, September 2004, pp. 4-9, available from www.asno.

dfat.gov.au/publications/safeguards_design_criteria.pdf.

11. For more detailed discussion of how fuel diverted from 

different commercial and research reactors could help accelerate a country’s covert bomb program, go to Appendix II of this 

report.

12. See J. Whichello, J. Regula, K. Tolk, and M. Hug, “A Secure Global Communications Network for IAEA Safeguards and 

IEC Applications,” IAEA User Requirements Document, May 6, 

2005.

13. The problem of states “losing” fuel rods, it should be noted, is not limited to countries intent on diverting them to make 

bombs. The U.S. civilian nuclear industry, which has a clear industrial interest in keeping track of its nuclear fuel, has had difficulty keeping proper account of all of it. On this point, see NRC 

Needs to Do More to Ensure Power Plants Are Effectively Controlling 

Spent Fuel, GAO O5-339, Washington, DC: U.S. Government Accountability Office, April 2005, available from www.gao.gov/new.

items/d05339.pdf.

14. Only about a third of the facilities the IAEA currently has 

remote sensors at have near-real-time connectivity with Vienna 

or other regional headquarters, and almost all of these facilities 

are in countries that are of minimal proliferation risk. This information was presented at a private IAEA Department of Safeguards briefing of NPEC’s executive director at Vienna, Austria, 

at IAEA Headquarters, January 30, 2006.

15. See Edwin Lyman, “Can Nuclear Fuel Production in Iran 

and Elsewhere be Safeguarded Against Diversion,” presented at 

NPEC ́s Conference “After Iran: Safeguarding Peaceful Nuclear 

Energy” held in London, UK, October 2005, available from www.

npec-web.org/Frameset.asp?PageType=Single&PDFFile=Paper05092

8LymanFuelSafeguardDiv&PDFFolder=Essays.
206

16. This incident received only scant public attention. See 

Bayan Rahman, “Japan ‘Loses’ 206 kg of Plutonium,” Financial Times, January 28, 2003, available from news.ft.com;servlet/

ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&c

id=1042491288304&p=10112571727095.

17. Ibid. Also see “Missing Plutonium ‘Just on Paper,’” BBC 

News, February 17, 2005, available from news.bbc.co.uk/1/hi/

uk/4272691.stm; and Kenji Hall, “Missing Plutonium Probe Latest 

Flap for Japan’s Beleaguered Nuclear Power Industry,” Associated Press (Tokyo), January 28, 2003, available from www.wise-paris.

org/index.html?/english/othersnews/year_2003/othersnews030128b.

html&/english/frame/menu.html&/english/frame/band.html.

18. These points have been long recognized by outside experts. See Paul Leventhal, “Safeguards Shortcomings—A Critique,” Washington, DC: NCI, September 12, 1994; Marvin Miller, “Are IAEA Safeguards in Plutonium Bulk-Handling Facilities 

Effective?” Washington, DC: NCI, August 1990; Brian G. Chow 

and Kenneth A. Solomon, Limiting the Spread of Weapons-Usable 

Fissile Materials, Santa Monica, CA: RAND, 1993, pp. 1-4; and 

Marvin Miller, “The Gas Centrifuge and Nuclear Proliferation,” 

A Fresh Examination of the Proliferation Dangers of Light Water Reactors, Washington, DC: NPEC, October 22, 2004, p. 38. 

19. See ibid.; also see the comments of the former chairman 

of the IAEA’s Standing Advisory Group on International Safeguards, John Carlson, Australian Safeguards and Non-Proliferation Office, “Addressing Proliferation Challenges from the 

Spread of Uranium Enrichment Capability,” Paper prepared for 

the Annual Meeting of the Institute for Nuclear Materials Management, Tucson, Arizona, July 8-12, 2007. Copy on file at NPEC. 

20. See Thomas B. Cochran, “Adequacy of IAEA’s Safeguards for Achieving Timely Warning, “ paper presented before 

a conference cosponsored by NPEC and King’s College, “After 

Iran: Safeguarding Peaceful Nuclear Energy,” October 2-3, 2005, 

London, UK, available from www.npec-web.org/Frameset.asp?Pag

eType=Single&PDFFile=Paper050930CochranAdequacyofTime&PD

FFolder=Essays.

21. Interview of senior advisors to the IAEA Director Gen-
207

eral, IAEA Headquarters, Vienna, Austria, January 17 2005, and 

January 30, 2006. 

22. IAEA Safeguards Glossary, 2001 Ed., Paragraph 3.13, Vienna, Austria: IAEA. Figure 2 here is identified as Table I in the 

glossary.

23. Cf. the low-end conversion time estimates for low enriched uranium of John Carlson in note 19 above, which for a 

small commercial enrichment facility range between 18 hours 

and 12 days.

24. See the testimony of Pierre Goldschmidt before a hearing of the House Subcommittee on National Security and Foreign 

Affairs of the House Committee on Oversight and Government 

Reform, “International Perspectives on Strengthening the Nonproliferation Regime,” June 26, 2007, Washington, DC, available 

from the subcommittee upon request.

25. See Ann MacLachian, Mark Hibbs, and Elaine Hiruo, 

“Kazakh Buy-in to Westinghouse Seen as Win-Win for Kazakhs, 

Toshiba,” Nucleonics Week, July 12, 2007, p. 1; and Kenneth Silverstein, “As North Korea Gives Up Its Nukes, Kazakhstan Seeks a 

Nuclear Edge,” Harper’s Magazine, July 2007, available from harpers.org/archive/2007/07/hbc-90000549.

26. On the challenges of verifying a military fissile production cut-off treaty, see Christopher A. Ford, “The United States 

and the Fissile Material Cut-off Treaty,” presented at the Conference on “Preparing for 2010: Getting the Process Right,” Annecy, 

France, March 17, 2007, available from www.state.gov/t/isn/

rls/other/81950.htm.

27. For a detailed discussion of what specific new safeguards 

capabilities the IAEA Department of Safeguards is investigating, see N. Khlebnikov, D. Parise, J. Whichello, “Novel Technology for the Detection of Undeclared Nuclear Activities,” IAEACN148/32, presented at the IAEA Conference on Safeguards 

held in Vienna, Austria, October 16-20, 2006, available from www.

npec-web.org/Frameset.asp?PageType=Single&PDFFile=20070301-

IAEA-NovelTechnologiesProject&PDFFolder=Essays.
208

28. See IAEA Director General Dr. Mohamed El Baradei, “Introductory Statement to the Board of Governors,” July 9, 2007, 

Vienna, Austria, available from www.globalsecurity.org/wmd/library/news/dprk/2007/dprk-070709-iaea01.htm.

29. See Thomas E. Shea, “Financing IAEA Verification of the 

NPT,” paper presented at a conference sponsored by the Nonproliferation Policy Education Center and the French Foreign 

Ministry, “Assessing the IAEA’s Ability to Verify the NPT,” November 12-13, 2006, Paris, France, available from www.npec-web.

org/Essays/20061113-Shea-FinancingIAEAVerification.pdf.

30. Ibid.

31. See U.S. GAO, Nuclear Nonproliferation, pp. 34-40.

32. See UN Secretary General Kofi Annan, Statement to the 

Nuclear Nonproliferation Treaty Review Conference, May 2, 

2005, UN Headquarters, New York, available from www.acronym.

org.uk/docs/0505/doc11.htm.

33. Robert Zarate, “The NPT, IAEA Safeguards and Peaceful 

Nuclear Energy: An  ́Inalienable Right, ́ But Precisely To What?” presented at “Assessing the IAEA ́s Ability to Safeguard Peaceful Nuclear Energy,” a conference held in Paris, France, November 12-13, 

2006, available from www.npec-web.org/Frameset.asp?PageType=Single&P

DFFile=20070509-Zarate-NPT-IAEA-PeacefulNuclear&PDFFolder=Essays. 

34. See “Mexican Working Paper Submitted to the Eighteen 

Nation Disarmament Committee: Suggested Additions to Draft 

Nonproliferation Treaty,” ENDC/196, September 19, 1967, U.S. 

Arms Control and Disarmament Agency, Documents on Disarmament, 1967, Publication No. 46, Washington, DC: U.S. Government 

Printing Office, July 1968, pp. 394-395; “Romanian Working Paper Submitted to the Eighteen Nation Disarmament Committee: 

Amendments and Additions to the Draft Nonproliferation Treaty,” ENDC/199, October 19, 1967, in ibid., pp. 525-526; “Brazilian 

Amendments to the Draft Nonproliferation Treaty,” ENDC/201, 

October 31, 1967, in Ibid., p. 546; and “Spanish Memorandum to 

the Co-Chairman of the ENDC,” ENDC/210, February 8, 1968, in 

U.S. Arms Control and Disarmament Agency, Documents on Disarmament, 1968, Publication No. 52, Washington, DC: U.S. Gov-
209

ernment Printing Office, September 1969, pp. 39-40.

35. See “Statement by the Swedish Representative [Alva 

Myrdal] to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons,” ENDC/PV. 243, February 24, 

1966, in U.S. Arms Control and Disarmament Agency, Documents 

on Disarmament, 1966, Publication No. 43, Washington, DC: U.S. 

Government Printing Office, September 1967, p. 56.

36. See Eldon V. C. Greenberg, “NPT and Plutonium: Application of NPT Prohibitions to ‘Civilian’ Nuclear Equipment, 

Technology and Materials Associated with Reprocessing and 

Plutonium Use,” Washington, DC: Nuclear Control Institute, 

1984 (Rev. May 1993).

37. See Report of Main Committee III, Treaty on the Nonproliferation of Nuclear Weapons Review and Extension Conference, 

May 5, 1995, NPT/CONF.1995/MC.III/1, Sec. I, para. 2, emphasis added, available from www.un.org/Depts/ddar/nptconf/162.htm, 

which states: 

The Conference records that the potential benefits of the 

peaceful applications of nuclear explosions envisaged in article 

V of the Treaty have not materialized. In this context, the Conference notes that the potential benefits of the peaceful applications of nuclear explosions have not been demonstrated and that 

serious concerns have been expressed as to the environmental 

consequences that could result from the release of radioactivity 

from such applications and on the risk of possible proliferation of 

nuclear weapons. Furthermore, no requests for services related 

to the peaceful applications of nuclear explosions have been received by IAEA since the Treaty entered into force. The Conference further notes that no State party has an active programme 

for the peaceful application of nuclear explosions.

38. See Greenberg, “NPT and Plutonium”; and Henry D. Sokolski and George Perkovich, “It’s Called Nonproliferation,” Wall 

Street Journal, April 29, 2005, p. A16.

39. NPT, Art III, para. 1.

40. For example, see “British Paper Submitted to the Eighteen 
210

Nation Disarmament Committee: Technical Possibility of International Control of Fissile Material Production,” ENDC/60, August 31, 1962, Corr. 1, November 27, 1962, U.S. Arms Control and 

Disarmament Agency, Documents on Disarmament, 1962, Publication No. 19, Vol. 2, Washington, DC: U.S. Government Printing 

Office, November 1963, pp. 834-852.

41. On these points, see Henry Sokolski, “Market-based Nonproliferation,” testimony presented before a hearing of the House 

Committee on Foreign Affairs, “Every State a Superpower? Stopping the Spread of Nuclear Weapons in the 21st Century,” May 

10, 2007.
211

Part V

THE RIGHTS AND BENEFITS OF PEACEFUL 

NUCLEAR ENERGY—

ARTICLES IV AND V
212
213

CHAPTER 9

IT’S CALLED NONPROLIFERATION*

Henry Sokolski and George Perkovich

Iran’s Foreign Minister Kamal Kharrazi has just 

stated in no uncertain terms that if today’s talks with 

France, Britain, and Germany fail, there will be “no 

choice but to restart” his country’s uranium-enrichment program. The Iranian people, he says, “believe it 

is their inalienable right to have access to this technology for peaceful purposes.”1

Iranian negotiators recognize the leverage that 

nuclear “rights” give them; so they say that the only 

issue is to establish the procedures under which they 

will exercise their rights to operate enrichment centrifuges. In February, Hassan Rohani, Iran’s national 

security council secretary, offered to open up Iran’s 

enrichment plants to even more intrusive inspections 

than those now currently allowed. If this was not acceptable, he suggested that Iran would be willing 

merely to run a pilot enrichment plant that he claimed 

would be too small to make even one bomb’s worth of 

highly enriched uranium. He even offered to allow the 

U.S. to buy up to one-half of Iran’s entire nuclear program to build confidence that Iran’s program would 

only be used for peaceful purposes.

These offers are beguiling. They are also bad. The 

reasons why, though, are likely to remain obscure so

________

*Originally published in the Wall Street Journal, April 25, 2009, 

available from online.wsj.com/article/SB111474293254420461.html.
214

long as our diplomats continue to agree with Mr. 

Kharrazi that all states that are not in violation of the 

Nuclear Nonproliferation Treaty (NPT) have a right to 

make nuclear fuel, and that such activity can be monitored to prevent quick diversions to make bombs. In 

fact, there is no such right, and nuclear fuel-making 

of the sort Iran is planning to engage in still cannot be 

safeguarded in any meaningful way.

The NPT’s history and common sense clarify why 

the right to peaceful nuclear energy is qualified. First, 

the NPT, to which Iran is a signatory, is a nuclear 

nonproliferation treaty, not a nuclear bartering tool. 

If it authorized states to get all they needed to come 

within days of having a nuclear arsenal, perversely it 

would be no more than a legal cover for proliferation. 

A state could be fully compliant with the NPT so long 

as it declared all of its nuclear activities and avoided 

taking the final step (which in extreme cases would 

take no more than hours or days) of assembling the 

nuclear weapons-usable materials it had into bombs.

Second, if there are different ways to interpret a 

contract, the one that lends the greatest support to its 

provisions and prime intent is the one any sound lawyer or judge must back. Unfortunately, nuclear promoters and diplomats have disobeyed this sensible 

rule. When it comes to the NPT, they read the treaty’s 

“inalienable right” to develop “peaceful nuclear energy” as being absolute. This is what leads them to 

conclude that a state has a right under the treaty to 

get everything up to but not including a complete 

nuclear weapon so long as it continues to claim that 

its nuclear activities are peaceful and there is no clear 

international determination otherwise.

This reading of the treaty, besides making a hash 

of the NPT’s intent to block bomb makers, is simply 
215

wrong. Article IV of the NPT makes clear that non-nuclear weapons state members are free to exercise their 

right to develop peaceful nuclear energy, but only if 

they do so “in conformity” with the NPT’s nonproliferation restrictions. Which restrictions are these? 

The first is the stipulation in Article II that nonweapons states are “not to seek or receive any assistance 

in the manufacture of nuclear weapons.” The other 

is the requirement in Article III of the treaty that all 

nonweapons states must place all of their civil nuclear 

activities under International Atomic Energy Agency 

(IAEA) nuclear safeguards—i.e., nuclear inspections 

geared “to preventing diversion of nuclear energy 

from peaceful uses to nuclear weapons.”2

Nuclear activities and materials that cannot be 

safeguarded, then, cannot count on being protected by 

the NPT. Centrifuge enrichment of uranium for power 

reactors, which can be switched to produce weaponsgrade uranium overnight; chemical separation of 

weapons-usable plutonium from spent reactor fuel; 

and the fabrication of weapons-usable plutonium and 

highly enriched uranium (HEU) reactor fuels, all fall 

into this category.

The following recent examples betray the inherent limitations of IAEA efforts to try to safeguard 

such plants. Earlier this year, the United Kingdom 

(UK) publicly admitted to having “lost” nearly 30 

kilograms—or five crude nuclear devices’ worth—of 

weapons-usable plutonium at its commercial reprocessing facility. The year before, the British reported 19 

kilos had gone missing. Japan, meanwhile, announced 

in early 2003 that it had lost 206 kilos of plutonium at 

its pilot reprocessing plant. These losses, it claimed, 

occurred over the previous 15 years. This revelation 

came after the Japanese had already admitted to hav-
216

ing lost 70 kilos at an entirely different plutonium fuel 

fabrication plant.

All of these facilities were under the IAEA’s watchful eyes. What’s more frightening, the IAEA found 

all of these losses to be within permissible limits: Inspectors assumed the material simply was “lost in the 

plant’s pipes.” This is not the margin of safety needed to ensure that all safeguarded nuclear activities 

are solely for peaceful purposes, as required under 

the NPT. With facilities like these and with uranium 

enrichment and HEU fabrication plants, the IAEA 

should admit that it cannot yet know if and when a 

bomb’s worth of bomb-usable material might have 

been stolen. It also should admit that a state could 

divert these activities and the materials they produce 

to make a bomb well before the IAEA or any outside 

power could step in to block it.

WHAT, THEN, DOES THIS RECOMMEND?

First, unless there is a clear economic imperative 

to proceed with these dangerous nuclear fuel-related activities, the security reasons for holding back 

should take precedence. The burden of proof should 

clearly be on those who seek to expand such activities to demonstrate clear civilian benefits and market 

economic competitiveness in comparison with alternatives. Reprocessing plutonium for civilian use, 

fabricating HEU or plutonium-based fuels, building 

new enrichment capacity to expand now beyond the 

world’s already large surplus of uranium-enrichment 

capacity, are unnecessary to promote peaceful nuclear 

energy today and, in most cases, are clear money losers.

This suggests adoption of some variant of President Bush’s or IAEA Director General Mohamed El 
217

Baradei’s proposed curbs on these activities. Certainly, 

nuclear industry can well afford to put the further addition of any new net capacity to make enriched uranium or to recycle plutonium-based fuels on hold for 

several years. The European Union (EU) has already 

signed on board to some kind of limits. This pause 

could be used to try to establish just what nuclear activities and materials the IAEA can and cannot truly 

safeguard against quick diversion.

Second, using the time gained from this pause, the 

United States and others should return to the NPT’s 

original, commonsensical intent regarding what is 

peaceful, what is protected, and what is dangerous 

and should be curbed as much as possible. In this regard, Congress, and especially the U.S. Senate, should 

ask for clarification of what nuclear activities are allowed under what circumstances under Article IV of 

the NPT and why.

Certainly, it makes no sense for the United States 

to be disputing with Iran and other would-be bomb 

makers if we share their views on how much is allowed under the rules. Indeed, if we cannot get others 

to return to the NPT’s original, tougher view of what 

peaceful nuclear energy means, our current campaign 

to prevent Iran from going nuclear will not only fail, 

but will make the rules all but meaningless.

ENDNOTES - CHAPTER 9

1. See Susanna Loof, “Iran Will Restart Uranium Enrichment if European Talks Fail, Foreign Minister,” Associated Press, 

April 28, 2005, available from www.accessmylibrary.com/article1G1-135697037/iran-restart-uranium-enrichment.html.

2. See Articles II and III of The Treaty on the Non-Proliferation of 

Nuclear Weapons, available from www.state.gov/www/global/arms/

treaties/npt1.html.
218
219

CHAPTER 10

THE THREE QUALIFICATIONS

OF ARTICLE IV’S “INALIENABLE RIGHT”*

Robert Zarate

To be sure, Article IV of the NPT recognizes the 

“inalienable right” of signatories to peaceful nuclear 

energy. However, it also explicitly imposes two qualifications on the “nuclear energy for peaceful purposes” to which NPT signatories have an “inalienable 

right.” Signatories shall develop “research, production and use” of peaceful nuclear energy (1) “without 

discrimination” and (2) “in conformity with articles 

I and II of this Treaty.”1

 Moreover, when the NPT’s 

Article III defines the purpose of comprehensive safeguards by the IAEA as the “verification of the fulfillment 

of [signatory] obligations assumed under this Treaty with 

a view to preventing the diversion of nuclear energy 

from peaceful purposes to nuclear weapons and other 

nuclear explosive devices,”2

 it effectively establishes 

(3) “conformity with Article III” as a third qualification. These three qualifications, when understood in 

relation to the treaty’s preamble and main text, not 

only narrow the scope of “nuclear energy for peaceful 

purposes” to which signatories have an “inalienable 

right,” but also establish criteria that signatories must 

meet in order to exercise this right.

____________

*Originally published as a part of “The NPT, IAEA Safeguards and Peaceful Nuclear Energy: An ‘Inalienable Right,’ But 

Precisely to What?” Henry Sokolski, ed., Falling Behind: International Scrutiny of the Peaceful Atom, Carlisle, PA, Strategic Studies 

Institute, U.S. Army War College, 2008, pp. 221-290. 
220

To begin, paragraph seven of the NPT’s preamble 

lays out the principle that addresses the special meaning of Article IV’s first qualification, “without discrimination,” within the context of the treaty.3

 That 

paragraph affirms:

the principle that the benefits of peaceful applications 

of nuclear technology, including any technological byproducts which may be derived by nuclear-weapon 

States from the development of nuclear explosive devices, should be available for peaceful purposes to all 

Parties of the Treaty, whether nuclear-weapon or nonnuclear weapon States.4

To be clear, neither this principle (which hereinafter I 

refer to as the “benefits-without-discrimination” principle), nor any other part of the NPT, ever expressly 

requires that any specific nuclear technology, or any 

specific peaceful application of nuclear technology, be 

made available to all signatories, but rather that only 

the benefits of a given nuclear technology’s peaceful application be made available somehow. In essence, this 

principle recognizes that some nuclear technologies 

and some peaceful applications of nuclear technology—to take an extreme example, so-called “nuclear 

explosions for peaceful purposes” in civilian mining, 

excavation, or canal-digging operations—may be too 

uneconomical, too proliferative, and too unsafeguardable to permit non-nuclear-weapon states to acquire 

and use them. Thus, when Article IV’s first qualification applies this principle to peaceful nuclear energy, 

it appears to permit, in principle, the denial of a given 

nuclear technology or a given nuclear technology’s 

peaceful application to a signatory as long as the benefits of the denied nuclear technology’s peaceful application are made available somehow.
221

Article IV’s second qualification requires that the 

development of “research, production and use” of 

peaceful nuclear energy be “in conformity with articles 

I and II” of the NPT. These two articles articulate the 

NPT’s main prohibitions against the direct and indirect proliferation of nuclear weapons by treaty signatories. Article I prohibits nuclear-weapon signatories 

from giving nuclear weapons and other nuclear explosive devices, or control over such devices, to “any 

recipient whatsoever,” and also forbids them from 

“assist[ing], encourag[ing], or induc[ing]” any nonnuclear-weapon state “to manufacture or otherwise 

acquire” nuclear explosive devices.5

 Article II correspondingly prohibits non-nuclear-weapon signatories 

from receiving nuclear explosive devices, or control 

over such devices, and also forbids them from building or acquiring in any way nuclear explosive devices, 

and from receiving or seeking “any assistance in the 

manufacture” of such devices.6 Article IV’s second 

qualification therefore effectively narrows the scope 

of “nuclear energy for peaceful purposes” to which 

signatories have an “inalienable right” under Article 

IV, since 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.7

Furthermore, the NPT’s Article III requires each 

non-nuclear-weapon signatory to conclude a comprehensive safeguard agreement with the IAEA: 

for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a 

view to preventing the diversion of nuclear energy 
222

from peaceful purposes to nuclear weapons and other 

nuclear explosive devices.8

By requiring non-nuclear-weapon signatories to submit to full-scope IAEA safeguards to verify the fulfillment of their obligations under Articles I and II, as 

well as other parts of the NPT, Article III effectively 

establishes a third legally-binding qualification on the 

“nuclear energy for peaceful purposes” to which signatories have an “inalienable right” under Article IV. 

That is, to develop “research, production and use” of 

peaceful nuclear energy “in conformity with articles I 

and II” necessarily implies full “conformity with Article III.”9

 Thus, Article IV’s third qualification appears 

to recognize the “inalienable right” of a signatory to 

peaceful nuclear energy only when the signatory’s 

nuclear activities are effectively safeguardable by the 

IAEA, and the signatory complies fully with its obligations under Article III of the NPT and related IAEA 

comprehensive safeguards agreements.10

ARTICLE IV’S THREE QUALIFICATIONS 

AND NUCLEAR EXPLOSIONS FOR 

PEACEFUL PURPOSES

With respect to “nuclear explosions for peaceful 

purposes,” the majority of the NPT negotiators understood that, at the time of their negotiations and for the 

foreseeable future, nuclear explosive technology in 

civilian projects not only lacked clear and immediate 

economic benefits, especially when compared to nonnuclear alternatives; but also possessed an unacceptable risk of nuclear proliferation since such technology 

could not be effectively safeguarded by the IAEA. Hence, 

the final text of the NPT denies non-nuclear-weapon 
223

signatories access both to nuclear explosive technology and its peaceful applications. 

In conformity with the preamble’s “benefits-without-discrimination” principle, though, the NPT’s Article V outlines the framework by which non-nuclearweapon signatories could avail themselves of “the 

potential benefits” of nuclear explosive technology’s 

peaceful application, if such economic benefits should 

ever materialize. The relevant part of Article V reads:

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. . . .11

As the NPT’s negotiation history reveals, many 

of the non-nuclear-weapon states represented at the 

ENDC did not view either the denial of nuclear explosive technology and its peaceful applications, or 

Article V’s framework for providing the “potential 

benefits” of the denied nuclear explosive technology’s 

peaceful applications, as discriminatory per se.12 For 

example, in late January 1968 Polish delegate Mieczyslaw Blusztajn remarked to the ENDC:

I should like once again to stress that the right of all 

countries to conduct peaceful nuclear explosions is not at 
224

stake. The only matter to be settled is the procedure 

and the conditions to be observed so that countries 

which forgo the manufacture of nuclear devices shall 

not be deprived of the benefits that may be derived 

from the use of nuclear explosives.13

Bulgarian delegate Kroum Christov echoed the Polish 

delegate’s sentiments:

[I]t seems to us quite clearly impossible to admit and 

to include in the non-proliferation treaty the right to 

manufacture nuclear devices and to carry out nuclear 

explosions. There is no question in this case of denying a 

right; nor should the prohibition of all activity of this nature 

be regarded as an infraction of that right. Account is taken 

of a state of facts which, for reasons which cannot be 

refuted and which have been explained here at length, 

renders the manufacture of nuclear devices incompatible with a non-proliferation treaty.14

In retrospect, the efforts of NPT negotiators to 

limit the spread of nuclear explosive technology for 

peaceful purposes proved to be well-founded. Indeed, 

the “potential benefits” of so-called peaceful nuclear 

explosives (“PNEs”) never materialized as non-nuclear explosive alternatives for mining, excavation, and 

canal-digging operations emerged as safer and more 

economical choices.15 In fact, in May 1995 the quadrennial NPT review conference reached the following conclusions about PNEs: 

The Conference records that the potential benefits of 

the peaceful applications of nuclear explosions envisaged in article V of the Treaty have not materialized. In 

this context, the Conference notes that the potential 

benefits of the peaceful applications of nuclear explosions have not been demonstrated and that serious 

concerns have been expressed as to the environmental consequences that could result from the release of 
225

radioactivity from such applications and on the risk 

of possible proliferation of nuclear weapons. Furthermore, no requests for services related to the peaceful 

applications of nuclear explosions have been received 

by IAEA since the Treaty entered into force. The Conference further notes that no State party has an active 

programme for the peaceful application of nuclear explosions.16

Moreover, though the Comprehensive Nuclear-Test-Ban 

Treaty has not entered into force, it has nonetheless 

established an international norm against the use of 

nuclear explosions, whether for non-peaceful or allegedly peaceful purposes.17

By prohibiting non-nuclear-weapon states from 

developing, accessing, and using so-called peaceful 

nuclear explosive devices, the NPT reinforces the importance of the following principle: When the IAEA 

cannot effectively safeguard the nuclear material involved in an allegedly peaceful application of nuclear 

technology, then the NPT does not protect the right of 

states to develop, access, or use that allegedly peaceful 

application of nuclear technology.

ARTICLE IV’S THREE QUALIFICATIONS AND 

NUCLEAR ENERGY FOR PEACEFUL PURPOSES

In conformity with Article IV’s three qualifications, then, both (a) the “benefits-without-discrimination” principle of the NPT’s preamble, and (b) the 

framework by which Article V allows non-nuclearweapon signatories to avail themselves of the “potential benefits” of nuclear explosive technology’s 

peaceful applications without providing them actual 

access to the technology or its peaceful application, 

can be applied to enrichment, reprocessing, and other 
226

sensitive nuclear fuel-making activities. Under a sustainable reading of the NPT, it is both plausible and 

consistent for governments to interpret Article IV as 

affirming the “inalienable right” of nuclear signatories 

to develop “research, production and use” of nuclear 

fuel-making only to the extent that such nuclear fuelmaking activities: (1) are economically beneficial in 

accordance with the treaty’s preamble (Article IV’s 

first qualification); (2) possess a low risk of proliferation in accordance with Articles I and II (Article IV’s 

second qualification); and (3) are effectively safeguardable and undertaken in full compliance with NPT and 

IAEA safeguard obligations in accordance with Article III (Article IV’s third qualification).18 Moreover, 

it is both plausible and consistent with the treaty to 

forbid signatories from developing, acquiring, and using nuclear fuel-making technologies (especially those 

related to nuclear materials that the IAEA cannot effectively safeguard) that can assist them in manufacturing nuclear weapons under some circumstances—

at the very least, when they fail to comply with their 

obligations under the NPT’s Article III and related 

IAEA safeguards agreements—as long as the benefits 

of peaceful applications of such nuclear fuel-making 

technologies are made available to them.19

As the NPT’s negotiation history reveals, ENDC 

delegations from both nuclear-weapon states and nonnuclear-weapon states viewed nuclear fuel making in 

a manner similar to nuclear explosives for peaceful 

purposes: that is, as potentially aiding and even constituting the manufacture of nuclear weapons. For example, in September 1962 British delegate Sir Michael 

Wright told the ENDC:

The thing which is unique to a nuclear weapon is its 
227

warhead. And what is there in a nuclear warhead that 

is found in no other weapons? . . . It is the fissile material in the warhead; that is to say, the plutonium and 

uranium-235, the two fissile materials now most commonly used in nuclear weapons.

If we are to deal effectively with nuclear weapons, we 

must concentrate on the fissile material which every 

nuclear weapon has and which no other weapon has.20

In another example, in February 1966 Swedish delegate Alva Myrdal argued before the ENDC:

[T]o block the road to nuclear weapon development 

as early as possible . . . what we are facing is a long 

ladder with many rungs, and the practical question 

is: on which of these is it reasonable and feasible to 

introduce the international blocking? . . . To prohibit 

just the final act of “manufacture” would seem to come late 

in these long chains of decisions. . . . Could a middle link 

be found on which the prohibitory regulation should 

most definitely be focused?21

A month later, during a speech to the ENDC, Burmese 

delegate U. Maung Maung Gyi answered Myrdal’s 

question:

An undertaking on the part of the non-nuclear weapon 

Powers not to manufacture nuclear weapons would in 

effect mean forgoing the production of fissionable material . . . and such production is the first essential step 

for the manufacture of these weapons and constitutes 

an important dividing line between restraint from and 

pursuit of the nuclear path.22

Proponents of the per se right or unqualified per se 

right reading of Article IV might counter the NPT’s 

sustainable reading by claiming that Article IV’s 

second paragraph necessarily obliges signatories to 

transfer any and all nuclear technology, materials, 
228

and assistance—including nuclear fuel making—in an 

unqualified and unfettered manner. The relevant part 

of that paragraph states:

All the Parties of 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.23

It is important to note, though, that this paragraph is 

carefully worded to call not for “the fullest exchange,” 

but rather for only “the fullest possible exchange,” and 

thus actually encourages NPT signatories to exchange 

nuclear technology, materials, and know-how with 

great care, caution, and restraint.24 In May 2005, during 

a speech to the quadrennial NPT review conference, 

Christopher Ford (at the time the Principal Deputy 

Assistant Secretary of State for Verification, Compliance and Implementation) elaborated this point:

The use of the term “fullest possible” is an acknowledgement that cooperation may be limited. Parties are 

not compelled by Article IV to engage in nuclear cooperation with any given state—or to provide any particular form of nuclear assistance to any other state. The 

NPT does not require any specific sharing of nuclear 

technology between particular State Parties, nor does 

it oblige technology-possessors to share any specific 

materials or technology with non-possessors.25

“[T]o conform both to the overall objective of the 

NPT—strengthening security by halting nuclear proliferation—and to any Article I and III obligations,” 

Ford added, “supplier states must consider whether 

certain types of assistance, or assistance to certain 

countries, are consistent with the nonproliferation 

purposes and obligations of the NPT, other interna-
229

tional obligations, and their own national requirements.” NPT signatories, Ford concluded,

should withhold assistance if they believe that a specific form of cooperation would encourage or facilitate 

proliferation, or if they believe that a state is pursuing 

a nuclear weapons program in violation of Article II, is 

not in full compliance with its safeguards obligations, 

or is in violation of Article I.26

Moreover, by establishing no per se obligation or duty 

of nuclear exporters to give any specific nuclear technology, material or assistance, Article IV’s second 

paragraph suggests that nuclear importers, at the 

same time, have no reciprocal per se right to receive 

or otherwise acquire any specific nuclear technology, 

material or assistance.27

In sum, the analysis in this chapter suggests that 

the NPT does not affirm the “inalienable right” of 

signatories to nuclear materials and activities that the 

IAEA cannot effectively safeguard. In fact, this explains why the treaty prohibits non-nuclear-weapon 

signatories from developing, accessing, or using socalled “nuclear explosions for peaceful purposes,” the 

most military-relevant of civilian applications of nuclear technology. Instead, the NPT appears to establish three qualifications of Article IV which condition 

the extent to which signatories have an “inalienable 

right” to develop and use peaceful nuclear energy—

key qualifications being a signatory’s full compliance 

with its obligations under the NPT and IAEA comprehensive safeguards agreements, and the actual 

ability of the IAEA to administer effective safeguards 

on nuclear materials in a given civilian application of 

nuclear technology. But while the NPT may be understood as prohibiting non-nuclear-weapon signatories 
230

from unsafeguardable nuclear materials and activities, the treaty also provides for mechanisms by which 

nuclear-weapon signatories can provide, individually or through multilateral frameworks, the benefits of 

proscribed, unsafeguardable peaceful applications of 

nuclear technology in a nondiscriminatory manner to 

non-nuclear-weapon signatories in full compliance.

ENDNOTES - CHAPTER 10

1. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 

Art. IV, para. 1, available from www.state.gov/www/global/arms/

treaties/npt1.html.

2. NPT, Art. III, para. 1, emphasis added.

3. The NPT’s negotiation history confirms that the “benefitswithout-discrimination” principle is meant to be understood in 

relation to Article IV. In August 1967, when American delegate 

William Foster (along with Soviet delegate Alexey Roshchin) 

introduced the first version of what we know today as Article 

IV, he said that the article’s two paragraphs “are specific elaborations of the principle stated in the preamble ‘that the benefits of 

peaceful applications of nuclear technology should be available 

for peaceful purposes to all Parties . . . whether nuclear-weapon 

or non-nuclear-weapon States’.” See “Statement by ACDA Director [William] Foster to the Eighteen Nation Disarmament Committee: Draft Nonproliferation Treaty,” ENDC/PV. 325, August 

24, 1967, Documents on Disarmament, 1967, Washington, DC: U.S. 

Arms Control and Disarmament Agency, p. 345, emphasis added.

4. NPT, preamble, para. 7, emphasis added.

5. NPT, Art. I.

6. NPT, Art. II.

7. Albert Wohlstetter and colleagues stressed this point in 

studies conducted for a number of U.S. government agencies in 

the 1970s. In a 1979 report for ACDA, for example, they argued, 
231

“Article IV explicitly states that the inalienable right of all parties to the Treaty to the peaceful use of nuclear energy has to 

be in conformity with Articles I and II . . . [T]hese Articles are 

what make the Treaty a treaty against proliferation.” See Albert 

Wohlstetter, Greg Jones, and Roberta Wohlstetter, Towards a New 

Consensus on Nuclear Technology, Vol. 1, 1979, PH 78-04 - 832-33, a 

summary report prepared for the U.S. Arms Control and Disarmament Agency, Contract #AC7 NC-106, Los Angeles, CA: PanHeuristics, July 6, 1979, pp. 34-35. A few years later, Eldon V. C. 

Greenberg reiterated this point in a legal memorandum on the 

NPT’s relation to plutonium fuel-making and use:

There is, in short, a dynamic tension in the Treaty between 

its prohibitions and its injunctions to cooperate in peaceful uses 

of nuclear energy. An analysis of the language and history of 

the NPT, and particularly the key phrase “in conformity with 

[articles I and II]” in Article IV, paragraph 1, which is the link 

between the Treaty’s promises and its prohibitions, tends to support the conclusion that Articles I, II and IV must be read together in such a way that assistance or activities which are ostensibly 

peaceful and civilian in nature do not as a practical matter lead to 

proliferation of nuclear weapons. The NPT, in other words, can 

and should be read as permitting the evaluation of such factors 

as proliferation risk, economic or technical justification, and safeguards effectiveness in assessing the consistency of specific or 

generic types of assistance and activities with the Treaty’s restrictions, to ensure that action is not taken in the guise of peaceful 

applications of nuclear energy under Article IV which in fact is 

violative of the prohibitions of Articles I and II.

See Eldon V. C. Greenberg, “The NPT and Plutonium,” 

Washington, DC: Nuclear Control Agency, 1993, p. 10. 

8. NPT, Art. III, para. 1, emphasis added.

9. It is of interest to note that both the 2000 NPT Review Conference and 2006 summit of the Non-Aligned Movement released 

a politically-binding final document affirming that “nothing in 

the 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, II and III of the Treaty.” 
232

See 2000 Review Conference of the Parties to the Treaty on the 

Non-Proliferation of Nuclear Weapons, Final Document, NPT/

CONF.2000/28 (Parts I and II), p. 8, para. 2, available from disarmament2.un.org/wmd/npt/finaldoc.html; and Fourteenth Summit 

Conference of the Heads of State or Government of the NonAligned Movement, Final Document, NAM 2006/Doc.1/Rev. 3, 

September, 16, 2006, para. 95. I am grateful to Andreas Persbo, 

a nuclear law and policy researcher at the Verification Research, 

Training and Information Centre (“VERTIC”) in London, UK, 

who first drew my attention to this passage of the 2000 NPT Review Conference’s Final Document.

10. Cf. Henry D. Sokolski and George Perkovich, “It’s Called 

Nonproliferation,” Wall Street Journal, April 29, 2005, p. A16, 

available from http://www.npec-web.org/Frameset.asp?PageType=Si

ngle&PDFFile=OpEd50429ItsCalledNonprolife&PDFFolder=OpEds; 

and George Perkovich, “Defining Iran’s Nuclear Rights,” Washington, DC: Carnegie Endowment for International Peace, September 7, 2006, available from www.carnegieendowment.org/npp/

publications/index.cfm?fa=view&id=18687>. 

11. NPT, Art. V, emphases added.

12. Exceptions included Brazil, the government of which had 

argued before the ENDC that non-nuclear-weapon states should 

be allowed to develop peaceful nuclear explosive devices. For example, see “Brazilian Amendments to the Draft Nonproliferation 

Treaty,” ENDC/201, October 31, 1967, U.S. Arms Control and 

Disarmament Agency, Documents on Disarmament, 1967, Publication No. 46, Washington, DC: U.S. Government Printing Office, 

July 1968, p. 546.

13. ENDC/PV. 359 (January 25, 1968), p. 6, emphasis added, 

available from www.hti.umich.edu/e/endc/. 

14. ENDC/PV. 360 (January 30, 1968), p. 7, emphasis added, 

available from www.hti.umich.edu/e/endc/. 

15. On the comparative economics and proliferation dangers 

of PNEs, see Thomas Blau, Rational Policy-Making and Peaceful 

Nuclear Explosives, Doctoral Dissertation, Department of Political 

Science, University of Chicago, December 1972.
233

16. Report of Main Committee III, Treaty on the Nonproliferation of Nuclear Weapons Review and Extension Conference, 

May 5, 1995, NPT/CONF.1995/MC.III/1, sec. I, para. 2, emphasis added, available from www.un.org/Depts/ddar/nptconf/162.htm.

17. Comprehensive Nuclear-Test-Ban Treaty, Opened for signature, September 24, 1996, 35 I.L.M. 1430, available from www.

state.gov/www/global/arms/treaties/ctb.html.

18. Here, I use what I view to be Article IV’s three qualifications on the “nuclear energy for peaceful purposes” to which 

NPT signatories have an “inalienable right,” to elaborate Eldon V. 

C. Greenberg’s argument for the specific facts and circumstances 

under which peaceful nuclear energy should not be permissible:

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 Treaty 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. Only in this way can there be any assurance that the NPT’s objectives will be achieved.

See Greenberg, p. 13.

19. Cf. Eldon V. C. Greenberg’s legal memorandum on the 

NPT and plutonium fuel-making, which argues:

[T]he distinction between permissible and impermissible activities must come down ultimately to quite pragmatic considerations. Activities must not be free from the Treaty’s prohibitions just by virtue of being denominated “peaceful,” civilian,” 

power” or “research.” The Treaty must be interpreted as viewing 

proliferation through something more than an “explosive lens.” 

Rather, depending upon the facts and circumstances, assistance 

and activities relating to declared “peaceful,” civilian,” “power” 

or “research” purposes may be subject to the NPT’s restrictions, 

if an evaluation of all the facts and circumstances, including such 

factors as economic or technical justification or effectiveness of 

safeguards, would indicate that the legitimacy of the assistance 
234

and/or activity is questionable. Such a pragmatic, rather than 

a formalistic reading of the Treaty, is most consistent with the 

overriding purpose of stemming the proliferation of nuclear 

weapons.

See Greenberg, “The NPT and Plutonium,” p. 24.

20. ENDC/PV. 82 (September 7, 1962), p. 37, emphasis added, available from www.hti.umich.edu/e/endc/. See also “British Paper Submitted to the Eighteen Nation Disarmament Committee: 

Technical Possibility of International Control of Fissile Material 

Production,” ENDC/60, August 31, 1962 (Corr. 1, November 27, 

1962), in U.S. Arms Control and Disarmament Agency, Documents on Disarmament, 1962, Publication No. 19, Vol. 2 of 2, Washington, DC: U.S. Government Printing Office, November 1963, 

pp. 834-852.

21. “Statement by the Swedish Representative [Alva Myrdal] 

to the Eighteen Nation Disarmament Committee: Nonproliferation of Nuclear Weapons,” ENDC/PV. 243, February 24, 1966, in 

U.S. Arms Control and Disarmament Agency, Documents on Disarmament, 1966, Publication No. 43, Washington, DC: U.S. Government Printing Office, September 1967, p. 56, emphasis added.

22. ENDC/PV. 250, March 22, 1966, p. 28, emphasis added, 

available from www.hti.umich.edu/e/endc/.

23. NPT, Art. IV, para. 2, emphasis added.

24. As strategist Albert Wohlstetter and colleagues argued 

in a 1979 report for the U.S. Arms Control and Disarmament 

Agency:

If the “fullest possible exchange” were taken to include the 

provision of stocks of highly concentrated fissile material within 

days or hours of being ready for incorporation into an explosive, 

this would certainly “assist” an aspiring nonnuclear weapons 

state in making such an explosive. No reasonable interpretation 

of the Nonproliferation Treaty would say that the Treaty intends, 

in exchange for an explicitly revocable promise by countries 

without nuclear explosives not to make them or acquire them, 

to transfer to them material that is within days or hours of being 
235

ready for incorporation into a bomb. . . . The NPT is, after all, a 

treaty against proliferation, not for nuclear development.

See Wohlstetter et al., Towards a New Consensus on Nuclear 

Technology, pp. 34-35.

25. Christopher Ford, “NPT Article IV: Peaceful Uses of Nuclear Energy,” Statement of the Principal Deputy Assistant Secretary of State for Verification, Compliance and Implementation, 

to the 2005 Review Conference of the Treaty on the Nonproliferation of Nuclear Weapons, New York, NY, May 18, 2005, available 

from www.state.gov/t/vci/rls/rm/46604.htm. 

26. Ibid.

27. According to Henry D. Sokolski, 

[The Principal Deputy Assistant Secretary of State for Verification, Compliance and Implementation] had attempted, to my 

knowledge, to get more cleared than what he was able to say [at 

the 2005 NPT Review Conference]. What he was able to say and 

what was cleared was that the United States at least is under no 

duty or obligation under Article IV to supply enrichment and reprocessing technologies to anyone. I think what he wanted to say 

might have included that countries really don’t have a per se right 

to acquire this from others or to develop it even indigenously, 

but that was not approved.

See “Statement of Henry D. Sokolski,” in Assessing “Rights” 

Under the Nuclear Nonproliferation Treaty, a hearing before the 

Subcommittee on International Terrorism and Nonproliferation, 

Committee on International Relations, U.S. House of Representatives, 109th Cong., 2nd Sess., Serial No. 109-148, March 2, 2006, 

Washington, DC: U.S. Government Printing Office, 2006, p. 28, 

available from www.foreignaffairs.house.gov/archives/109/26333.pdf. 
236
237

CHAPTER 11

NUCLEAR TECHNOLOGY RIGHTS 

AND WRONGS:

THE NUCLEAR NONPROLIFERATION TREATY,

ARTICLE IV, AND NONPROLIFERATION*

Christopher A. Ford

In diplomatic circles associated with the Nuclear 

Nonproliferation Treaty (NPT), it is widely believed 

that Article IV of the Treaty unquestionably protects 

the “inalienable right” of non-nuclear weapons states 

to develop any sort of nuclear technology they wish, 

short of actual nuclear weapons, provided that it is 

subjected to International Atomic Energy Agency 

(IAEA) safeguards and used only for “peaceful” purposes. This belief, however, is false. The text of Article IV itself does not preclude that interpretation, but 

such an understanding is in no way supported by the 

text, nor by the negotiating history of the NPT, and 

is in fact inconsistent with this history and with the 

structure of the Treaty.

The meaning of the Treaty’s peaceful use provisions has been debated for many years between (a) 

those who advocate technology-access rights per se, 

and (b) those who read the NPT as reflecting a strong 

commitment to sharing nuclear benefits but as treating specific claims to technology access as policy 

questions to be determined on a case-by-case basis, 

______

* Available from www.npec-web.org/Essays/20090601-FordNuclearRightsAndWrongs.pdf.
238

informed by considerations such as the ability of safeguards to provide timely warning of misuse. Of these 

two camps, the latter, the “safeguardability” school 

offers the stronger argument.

The policy-focused, benefits-sharing approach 

advanced by “safeguardability” theorists is not only 

more consistent with the Treaty’s text and negotiating 

history, but also quite consonant with long-standing 

themes in the international community’s struggle 

with nuclear technology issues since the dawn of 

the nuclear age. By contrast, theories of access rights 

would require concluding, against the evidence, that 

these long-standing themes were suddenly and utterly repudiated during the NPT’s drafting. Worse, 

access rights would turn Article IV into a mechanism 

for undermining the rest of the Treaty by facilitating 

the spread of the (fissile material production) technologies that are critical to making nuclear weapons. 

This is not merely unwise and untenable as a matter 

of public policy, it is, in fact, an inferior answer as a 

matter of legal interpretation. The safeguardability 

approach, however, reconciles the text of Article IV 

with the rest of the Treaty, with its negotiating record, 

and with long-standing international approaches to 

nuclear technology. While both views of Article IV 

may be “legally available,” the policy-privileging 

safeguardability interpretation is far superior, both 

substantively and legally. 

Significant consequences follow from properly understanding safeguardability as the best framework 

for understanding nuclear technology “rights” under 

the peaceful use provisions of the NPT. First, IAEA 

nuclear safeguards must be the focus of great attention 

and detailed study, particularly with regard to their
239

ability to provide an adequate warning of misuse in 

sufficient time to permit the international community to 

mount an effective response. This is a critical factor, for 

upon considerations of effective safeguardability will 

hinge whether claimants in fact possess the “right” to 

nuclear “benefits” in any particular technological form. 

Second, the international community must develop a 

rational and defensible standard for assessing the real 

economic and developmental benefit offered by nuclear 

technologies—not merely in their own right but also 

vis-à-vis non-nuclear alternatives—in order to allow 

possible the exercise of informed policy judgment to 

determine the form that “benefit”-sharing should take.

INTRODUCTION

Contemporary diplomatic debates regarding the 

NPT have become conspicuous for the disagreements 

they reflect not merely over nonproliferation policy, 

which is somewhat expected, but also over the fundamental meaning of key portions of the Treaty itself. 

One of the most interesting debates over the meaning 

of the NPT today concerns Article IV of the Treaty: its 

provisions concerning the peaceful uses of nuclear energy. On one side, representing the seeming preponderance of diplomatic opinion on the subject—as well 

as, it must be said, no small amount of acquisitive selfinterest by nuclear technology “have-not” countries—

are the advocates of an interpretation that sees Article 

IV through the lens of technology access rights. On the 

other side stand those more focused upon vindicating 

the Treaty’s nonproliferation components (Articles I, II, 

and III), and who think that the NPT’s commitment 

to nonproliferation may on occasion require refusing 

requests for technology sharing, or concluding that 
240

certain capabilities are simply not able to be possessed 

safely by non-nuclear weapons states at all—even for 

“peaceful” purposes.

These debates have acquired both great salience 

and all too much venom as a result of Iran’s decision 

to adopt the movement for Article IV “rights,” while 

secretly pursuing a program of uranium enrichment 

and plutonium reprocessing in violation of not just 

its nuclear safeguards commitments under Article III 

but also—given the apparently now general agreement that Iran’s nuclear program was designed to 

give it the ability to build nuclear weapons—of Article II. The diplomatic confrontation has been especially acute since the embarrassing public revelation 

in August 2002 of much of Iran’s hitherto clandestine 

nuclear program.

This chapter outlines the contentious debates underway today concerning Article IV, and it outlines 

the history of the international community’s efforts 

to grapple with the challenge of nuclear technology 

control. This chapter discusses the problematic text 

and ambiguous negotiating history of Article IV itself, 

and then it offers an alternative view to the accessprivileging which underlies the conventional wisdom 

of much of today’s diplomatic community. In place 

of the rigid rights-fetishism of what has now become 

Article IV’s conventional interpretation, I argue for a 

policy-privileging understanding of that provision—

one that embodies a strong ethic of benefits-sharing but 

without any commitment to the sharing or permitting 

the possession of any particular nuclear technology.

This approach, I argue, is the best way to reconcile 

the confusing text of Article IV and the complexity of 

its negotiating history, and the one most substantively 

consistent with the long history of how key players 
241

struggled with the challenge of technology control 

in the years leading up to the drafting of the Treaty. 

Most importantly, while competing interpretations 

may also be legally available, I contend that the policy-privileging, benefits-sharing approach is the best 

interpretation of Article IV to make it consistent with 

the rest of the NPT—thus ending the dangerous and 

indeed regime imperiling opposition that has been 

developing between the Treaty and its peaceful use 

provisions under the more rights-focused view.

THE GREAT ARTICLE IV DEBATE

The NPT deals with the issue of peaceful nuclear 

uses in two places, both of which we shall see are 

highly relevant. In the Preamble, it affirms:

the principle that the benefits of peaceful applications 

of nuclear technology, including any technological byproducts which may be derived by nuclear-weapon 

States from the development of nuclear explosive devices, should be available for peaceful purposes to all. . . .”1

Article IV adds detail to this idea, declaring in its two 

paragraphs that:

(1) Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty 

to develop research, production and use of nuclear 

energy for peaceful purposes without discrimination 

and in conformity with Articles I and II of this Treaty;

(2) All the Parties to the Treaty 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 cooperate in contributing alone or 
242

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.2

While everyone seems to agree that the NPT embodies a strong commitment to sharing the benefits 

that nuclear technology can bring to mankind, making sense of exactly what the notably unspecific phrasing of Article IV actually requires as a matter of law is 

quite contentious. As it turns out, this issue is also of 

quite considerable importance—which is why Article 

IV issues have emerged as a contentious and significant arena of debate and discussion in contemporary 

diplomatic and policy circles.

The Stakes.

To put it crudely, the issue is of importance because of the potentially enormous cost of getting the 

answer wrong. Nuclear energy technology has presented great challenges to the international community for many decades, and governments have always 

struggled to walk a tightrope between the benefits it 

might bring and the dangers it so clearly might also 

present. I once summarized this tension when I was in 

an official capacity when I stated that,

[n]uclear energy . . . has always had a Janus-faced 

aspect, offering humankind both great peril and extraordinary promise.” Nuclear weapons scientist 

Robert Oppenheimer’s well-known quotation from 

the Bhagavad-Gita upon witnessing the first nuclear 

weapons test drew from a verse which, in its entirety, 

references not just the destructive power of Death, but 
243

also the creative power that forms the origin of things 

yet to be. Nuclear technology is like that: it embodies a nearly unbelievable power to destroy, but at the 

same time an extraordinary power to create—to enrich 

our lives, to provide the electric power by which we 

may read at night, to produce potable water from the 

ocean’s brine, to help cure deadly diseases, and to enable science and industry to advance in innumerable 

ways that can improve the quality of life for people in 

all societies.”3

Nuclear technology has been significantly advanced since the magnitude of this challenge first became apparent, but it has long been quite clear—and 

remains at least as true as ever—that some balance 

must be struck between the two faces of the nuclear 

Janus-god. Our efforts to exploit nuclear technology 

for good must always be tempered by an awareness 

of, and consideration for, the dangers inherent in such 

knowledge. Clearly, getting the answer wrong could 

have terrible implications, either in impeding technological and economic developments that might otherwise bring enormous benefits to mankind or, worse, 

in leading to an increased likelihood of global instability and indeed nuclear warfare by facilitating the 

proliferation of nuclear weapons capabilities.

In recent years, in fact, the stakes have been rising. 

On the one hand, in the face of increasing global energy needs and increased worries about how to control 

the impact of fossil fuel combustion on climate change, 

there has been much talk of a “nuclear renaissance.” 

Electricity generation by means of nuclear power reactors has been described by many as an important 

part of the solution to the world’s 21st-century energy 

security and climate change dilemmas. Many governments around the world have proclaimed an interest 
244

in developing nuclear reactor programs,4 supplier 

states are currently taking advantage of a recentlyagreed exception to the rules of the Nuclear Suppliers 

Group (NSG)5 in order to seek lucrative contracts with 

the energy-hungry state of India, and even some environmentalists are reportedly rethinking their longstanding opposition to nuclear power in light of fossil 

fuel-related climate change.6

On the other hand, it has also become increasingly clear that the spread of nuclear technology—or 

at least of certain types of nuclear capability—can 

have grave proliferation and global security implications. Since the early 1990s, and culminating with that 

country’s test of a nuclear weapon in October 2006, it 

has been apparent that North Korea used the pursuit 

of a “peaceful” nuclear reactor program as cover for 

its weapons development efforts. Since early 2004,7

moreover, it has been publicly known that renegade 

Pakistani nuclear scientist and smuggler A. Q. Khan 

played an extraordinary role for many years in providing uranium enrichment and other technology to the 

nuclear weapons development programs of a number 

of problematic regimes around the world, including 

Libya, North Korea, and Iran. Most dramatically, from 

an Article IV perspective, controversies over the discovery of Iran’s long-secret nuclear program have engaged diplomats, policymakers, and observers alike in 

fierce disputes over precisely what ostensibly “peaceful” nuclear capabilities Iran can safely be permitted 

to employ.

These latter developments have sparked renewed 

interest in how to handle the potential proliferation 

challenges of the spread of uranium enrichment and 

plutonium reprocessing (a.k.a. ENR) technology as 

part of the full nuclear fuel cycle. As official U.S. state-
245

ments have explained it,

the ubiquitous availability of uranium enrichment capability—or its analogue, plutonium production and 

reprocessing—also necessarily entails a capability to 

develop nuclear weapons. The basic physics and operating principles of nuclear weapons have been known 

publicly for many years now, and it has long been understood that the greatest technical barrier to massive 

and widespread proliferation has been the difficulty 

of acquiring sufficient quantities of weapons-usable 

fissile material. Anyone who can enrich (or reprocess) 

can overcome this hurdle to weapons development—

helping open the door to the incalculable dangers of a 

proliferated world.8

Spreading availability of ENR thus threatens to confront the international community with a growing 

number of states becoming what the Director General of the IAEA has called “virtual nuclear weapons 

states.”9 Most observers plausibly assume that a world 

in which many countries are in a position to develop 

nuclear weapons with little or no notice would be a 

profoundly unstable one, and that the spread of ENR 

could likely undermine—and here one might go so far 

as to say “destroy”—the nonproliferation regime.

To help forestall such potentially destabilizing effects, various supplier states, and the IAEA itself, have 

advocated approaches to providing would-be reactoroperating states with reliable sources of nuclear fuel. 

The idea behind these proposals is to obviate any perceived need for such states to independently pursue 

nuclear fuel-making by means of acquiring enrichment or reprocessing capabilities. The United States, 

for instance, has proclaimed its desire to

work . . . with the producer states and the IAEA to 
246

develop broad cooperative programs for fuel-supply 

assurances . . . [through] a reliable system of fresh fuel 

supply and spent-fuel management services, [and] to 

build upon and reinforce the efforts currently underway [at the IAEA] in Vienna to create a reliable fuel 

supply system that might include an IAEA overseen 

fuel bank as a supply of “last resort.”10

The aim of such efforts is “to provide such attractive 

and responsible cooperative alternatives that countries offered the chance to participate will choose to 

forego involvement with ENR.”11

Presumably out of deference to the diplomatic sensitivities of such a persuasive exercise—that is, either 

because they think there do exist ENR rights under the 

NPT but that such things are most prudently not spoken of, or because it would irritate technology seeking 

diplomatic partners to point out that their legal arguments are illusory—many Western countries have 

gone to considerable trouble to avoid taking a position 

on the actual legal meaning of the Treaty’s peaceful 

use provisions. At the 2005 NPT Review Conference, 

for instance, a working paper offered by several Western governments carefully refrained from spelling 

out what Article IV actually entails, instead stressing 

that whatever rights it may enshrine are not ones that 

countries necessarily have to act upon. “States may 

choose individually not to exercise all their rights,” 

the paper carefully noted, “or to exercise those rights 

collectively.”12

In a similar vein, the European Union (EU) tapdanced around the question by declaring that “[t]he 

right to peaceful uses of nuclear energy remains undisputed,” but without describing what it actually 

means to have such a right. Instead, the EU’s working 

paper on the subject merely pleaded the policy mer-
247

its of “multilateralizaton/guarantees of access to the 

fruits of the most sensitive parts of the nuclear fuel 

cycle.” The EU hoped, in other words, that a system 

of fuel-supply assurances—that is, for ensuring that 

states’ needs for nuclear fuel were reliably met without 

any need for them to develop enrichment or reprocessing—would be seen as an acceptable “means of implementing the right [described in Article IV] . . . while at 

the same time avoiding the risks of proliferation.”13

To the extent that the fuel-supply based “enticement” approach works,14 it may succeed in avoiding a 

real reckoning with the legal meaning of the peaceful 

use provisions of the NPT. If it does not, however—

and it must here be admitted that the principal (and 

most urgent) target of such fuel-supply blandishments, Iran, has to date shown no interest whatsoever 

in giving up its emerging nuclear weapons “option”—

it will not be possible to avoid struggling with Article 

IV. If countries cannot be bribed out of any desire to 

possess ENR technology in the first place, it will be 

necessary to take a position on what specifically, any 

such “rights” actually are, and the fate of the nonproliferation regime may hang upon the outcome.

The Contenders.

It would be an oversimplification to describe there 

being only two or three camps in the broad and conceptually messy international debates that have been 

developing over peaceful use benefits under the NPT. 

Nevertheless, it may be convenient to divide the protagonists into two broad categories.

1. The Technology-Seekers. Countries that are, for 

various reasons, less concerned with preventing nuclear weapons proliferation than with using the NPT 
248

as a tool to spur technology transfers from nuclear 

suppliers—that is, from the privileged “have” states 

of the modern international system, none of whom are 

more resented than the five powers who are also recognized by the NPT itself as the only States Party to 

the treaty permitted to possess nuclear weaponry15—

see in Article IV a potentially powerful weapon. After 

all, if indeed it was the case that the NPT recognizes 

or conveys nuclear technology-access “rights,” what 

could be more appropriate than insisting upon what 

one is owed as of right?

Some states thus defend a view of Article IV that 

gives nonpossessors a right to develop—or perhaps 

even to be given—the full range of nuclear-related 

technology short of actual weaponization techniques, 

provided that they promise to use all of it exclusively 

for peaceful purposes and subject their activities to 

IAEA safeguards. The “inalienable right” of Article 

IV is often brandished as an absolute trump card that 

is expected to make nonproliferation risks (which are, 

after all, merely policy considerations) take a back seat. 

As the People’s Republic of China revealingly phrased 

it in a paper delivered to the 2005 NPT Review Conference, “[n]on-proliferation efforts should not undermine the legitimate rights of countries, especially the 

developing countries, to the peaceful uses of nuclear 

energy.”16

Some governments have even attempted to use 

Article IV to undermine nonproliferation export controls. Cuba, for instance, argued at the 2005 Review 

Conference that “the unilateral restrictions put in place 

by some States parties to the Treaty” have “impeded 

other States parties’ peaceful uses of nuclear energy.” 

In fact, the very existence of “export-control regimes 

. . . which, in practice, seriously hamper the inalien-
249

able right of all States to use for peaceful purposes the 

various nuclear-related resources and technologies 

available” was entirely “unacceptable.” In short, Cuba 

said, nonproliferation export controls were “a violation of the Treaty, and should cease.”17

Given Iran’s efforts since 2002 to defend its previously secret but now well-known nuclear program, its 

long-standing noncompliance with IAEA safeguards, 

and its defiance of legal requirements imposed by the 

United Nations (UN) Security Council to suspend enrichment and reprocessing-related activity, it is perhaps not surprising that the clerical regime in Tehran 

has taken an extreme view of Article IV. However, Iranian officials did not just develop their strong view of 

Article IV only after Iran was embarrassingly revealed 

in August 2002 to be pursuing a secret nuclear program aimed at uranium enrichment and the construction of a heavy-water reactor ideally suited for plutonium production. In fact, Iran apparently staked out 

these Article IV claims years earlier—at a time when 

its secret nuclear efforts still remained unknown to the 

world, apart from accurate but unheralded warnings 

from arms control verification and compliance experts 

in the United States.18

As Etel Solingen has recounted, before the 1995 

NPT Review and Extension Conference, “Iran threatened to withdraw from the NPT because of imputed 

U.S. violations of Article IV granting members full access to equipment, materials, and scientific and technological information for peaceful purposes.”19 Iran’s 

emphasis in 1995, upon its purported “right” to whatever “peaceful” nuclear technology it wanted, was 

likely no coincidence. It was that year that Russia and 

Iran agreed to a nuclear cooperation agreement that 

led to the construction of the current nuclear reactor 
250

at Bushehr and apparently included a side protocol—

subsequently canceled (and then denied) by Russia in 

the face of international pressure—for the construction of a gas centrifuge plant for the enrichment of 

uranium.20

The Russian deal was not the clerical regime’s first 

effort to acquire fissile material production capabilities. It had secretly begun experiments with uranium 

conversion as early as 1981, imported uranium yellowcake as early as 1982, started a gas centrifuge program 

at least as early as 1985, obtained centrifuge designs 

and other information beginning at least in 1987 (from 

the smuggling network run by Khan), carried out plutonium separation experiments beginning in 1988, began experiments with creating neutron sources [usable 

in nuclear weapons triggers] from polonium in 1989, 

and imported its first supply of uranium hexafluoride 

centrifuge feedstock in 199121—from China, no less: a 

fellow believer in the merely secondary importance of 

nonproliferation. None of this activity was reported 

to the IAEA as required by Iran’s nuclear safeguards 

agreement; it only came to light during the investigations that followed the press leaks of August 2002.

At any rate, in the years after the public revelation 

of these secret efforts, Iran stepped up its Article IV 

campaigning. It is not simply that Iran has defended 

its development of ENR capabilities in Article IV 

terms. Iran also asserts that supplier states are legally 

required to make available whatever technology it desires for the peaceful purposes it claims. In April 2008, 

for instance, Iran’s representative declared that “[r]

estrictions imposed by nuclear suppliers” for nonproliferation reasons were “[c]lear violations of Article 

IV obligations . . . in depriving the States parties from 

[sic] the exercise of their inalienable right.”22 Article IV, 
251

in other words, is seen as a potent weapon for Iran’s 

fight against “nuclear apartheid,”23 by which Tehran 

means an international system in which not everyone 

is allowed to have whatever nuclear technologies they 

wish.

At an NPT meeting in May 2009, the Iranians offered even more aggressive arguments, defending an 

absolutist vision of Article IV and describing it not 

merely as one pillar of the NPT but as the “very foundation of the Treaty.”24 (So important is technologypromotion to the NPT, in fact, that this principle seems 

in Iranian minds to have overridden the nonproliferation conformity requirement in the last 10 words of 

the first paragraph of Article IV.25 “[N]o State party,” 

claimed the Iranian delegation, “should be limited in 

exercising its rights under the Treaty based on allegations of non-compliance.”) Denouncing nuclear export 

controls as “a clear violation” of the Treaty, Iran even 

claimed the right to “compensation” for the effect of 

nonproliferation rules in “hampering” Iran’s “peaceful nuclear activities.”26

Perhaps more than any other single factor, the Iranian case—including Iran’s use of assertions about Article IV to excuse its nuclear provocations—has helped 

drive and exacerbate the tensions surrounding today’s 

debates over the peaceful use provisions of the NPT. 

Despite Iran’s brazenly self-exonerating involvement 

in advancing such arguments, many countries apparently now really do think Article IV “means that states 

have a per se right to any and all nuclear technology 

and materials, including nuclear fuel-making technology and weapons-usable nuclear fuels.”27

2. The Nonproliferators. 

a. Government Positions. It is somewhat strange 

that, given the enormous importance placed upon 
252

Article IV claims by Iran and its apologists, a more 

clearly articulated and defended counterargument 

has not developed in diplomatic circles. This is surely 

not because other governments accept Iranian and 

Cuban claims at face value: the 45 members of the 

Nuclear Suppliers Group presumably do not believe 

that maintaining nuclear export controls makes them 

violators of the NPT. Moreover, it has been explicit 

U.S. policy since President George W. Bush’s speech 

at the National Defense University in February 2004 

to oppose the spread of ENR technology to “any state 

that does not already possess full-scale, functioning 

enrichment and reprocessing plants.”28 The policy positions of all these governments preclude agreement 

with Iranian-style interpretations of Article IV. Why 

then, has there never been an official articulation of a 

counter-argument?

No doubt part of the answer for this relative silence 

lies in some governments’ worries that offering arguments to debunk extremist proliferation-facilitating 

interpretations of Article IV would irritate the delicate 

diplomatic sensibilities of governments whom we 

hope to persuade to accept multinational fuel-supply 

assurances in lieu of ENR development. Bush Administration Energy Secretary Samuel Bodman, for 

instance, once declared that he felt it was “unproductive often to talk in terms of rights.”29 The danger of 

such reticence is, however, that—as I have elsewhere 

warned—it risks “ced[ing] the intellectual field to the 

proliferators” because even the most tendentious of 

arguments may be believed “in the absence of clear 

rebutting arguments.”30

In fact, however, the situation seems to be worse 

than that. The United States has sometimes seemed 

confused on the subject of Article IV’s specific mean-
253

ing. To be sure, U.S. officials have articulated a clear 

rebuttal of Iranian-style arguments, based upon that 

provision’s second paragraph, that the NPT requires 

specific technology transfers. The United States has 

clearly and publicly rejected any notion that export 

controls or any other sort of supplier discretion in 

making potentially proliferation facilitating transfers 

is in any way problematic under the Treaty. As I explained it to the 2005 NPT Review Conference,

Paragraph 2 of Article IV calls on parties ‘to facilitate 

... the fullest possible exchange’ of technology for the 

peaceful uses of nuclear energy. The use of the term 

‘fullest possible’ is an acknowledgement that cooperation may be limited. Parties are not compelled by 

Article IV to engage in nuclear cooperation with any 

given state—or to provide any particular form of nuclear assistance to any other state. The NPT does not 

require any specific sharing of nuclear technology between particular States Party, nor does it oblige technology-possessors to share any specific materials or 

technology with non-possessors. Indeed, to conform 

both to the overall objective of the NPT—strengthening security by halting nuclear proliferation—and to 

any Article I and III obligations, supplier states must 

consider whether certain types of assistance, or assistance to certain countries, are consistent with the 

nonproliferation purposes and obligations of the NPT, 

other international obligations, and their own national 

requirements. They should withhold assistance if they 

believe that a specific form of cooperation would encourage or facilitate proliferation, or if they believe 

that a state is pursuing a nuclear weapons program in 

violation of Article II, is not in full compliance with its 

safeguards obligations, or is in violation of Article I.

. . . While compliant State[s] Party should be able to 

avail themselves of the benefits that the peaceful use 

of nuclear energy has brought to mankind, the Treaty 

establishes no right to receive any particular nuclear 
254

technology from other States Party—and most especially, no right to receive technologies that pose a significant proliferation risk.31

With regard to the first paragraph of Article IV, 

however—the location of the portentous and muchcited phrasing about the “inalienable right” of States 

Party to develop nuclear energy—the United States 

has excelled at sending foolishly mixed messages. As 

noted above, President George W. Bush made it U.S. 

policy in February 2004 to oppose any further spread 

of ENR technology. Unless it was to be U.S. policy to 

deprive other states of what international law permits them—a position that American representatives 

denied32—President Bush’s position would certainly 

seem at least to imply that adopting such a policy 

was not an NPT violation. Nor, so far at least, has the 

Obama Administration changed U.S. policy to one of 

supporting or acquiescing in ENR proliferation, which 

is presumably what one would expect from any country believing nonweapons states to have a real legal 

right to such capabilities. One might presume, therefore, that the United States still does not think that 

Article IV creates or describes any sort of a “right” to 

specific technologies irrespective of proliferation risk.

Moreover, U.S. officials have offered explications 

of Article IV that rebut Iranian style arguments that 

the NPT provides or enshrines a legal right to uranium 

enrichment and/or plutonium reprocessing. In the official U.S. exegesis on Article IV that I presented to the 

2005 NPT Review Conference, for example, the United 

States declared that although some have asserted that 

“any State Party . . . has a specific right to develop the 

full nuclear fuel cycle, and that efforts to restrict access to the relevant technologies is inconsistent with 
255

the NPT,” it was in fact the case that “[t]he Treaty is 

silent on the issue of whether compliant states have 

the right to develop the full nuclear fuel cycle. . . .”33

A U.S. working paper, also presented in 2005, underlined this point about Article IV’s indeterminacy, 

declaring that “the NPT neither guarantees nor prohibits the acquisition of a particular nuclear fuel cycle 

facility.”34 These U.S. presentations also stressed the 

importance under the NPT of sharing the benefits that 

nuclear technology can bring—phrasing that pointedly stopped short of endorsing legal rights to all of 

the underlying technology used to produce such benefits.35 In 2004, Under Secretary of State John Bolton 

made the fundamental Article IV point in a characteristically concise way: “The Treaty provides no right to 

such sensitive fuel cycle technologies.”36

The U.S. bureaucracy, however, seems to have had 

trouble keeping its story straight. On the heels of the 

relatively clear pronouncements of 2004 and 2005, 

much confusion ensued when, in 2007, the U.S. Department of Energy included in one of its publications 

a comment taking precisely the opposite position. According to the Energy Department at that time, “[o]ne 

challenge we face is that all nations that have signed 

the NPT retain the right to pursue enrichment and reprocessing for peaceful purposes in conformity with 

article I and II of the Treaty.”37 This claim—which 

endorsed the conceptual core of the Iranian and Cuban position that the development of proliferation 

facilitating ENR technology is a matter of legal right—

quickly came under criticism from the U.S. Congress. 

In July 2007, for instance, the leadership of the Foreign 

Affairs Committee in the House of Representatives 

wrote to Secretary of State Condoleeza Rice declaring 

it “a mistake” to assert the existence of ENR rights and 
256

asking for clarification.38

When it came, however, the requested clarification was anything but clear. The State Department’s 

reply—not with the signature of Secretary Rice, but of 

Jeffrey Bergner, the Assistant Secretary for Legislative 

Affairs, provided after a delay of 4 months—merely 

restated existing U.S. policy against transferring ENR 

technology, and asserted merely that ENR capabilities were “not necessary in order for states to harness 

nuclear energy for peaceful purposes.”39 It entirely 

avoided answering the question posed: whether the 

Energy Department’s interpretation of Article IV represented the considered view of the U.S. Government 

as a whole.40 Arguably, the official U.S. positions articulated at the 2004 and 2005 NPT meetings still remained U.S. policy, for the Bergner letter certainly did 

not repudiate them. In the wake of the Energy Department’s remarkable endorsement of an Iranian-style 

reading of Article IV, however, the Bergner response 

understandably left things seeming rather confused.

In his widely-reported (but not necessarily widely understood) April 2009 nuclear policy speech in 

Prague, President Barack Obama did not do too much 

to clarify the situation. On the one hand, Obama played 

to the perceived grievances of developing nations—

and Iranian clerics—unhappy with his predecessor’s 

approach to nuclear technology control by stressing 

that “no approach will succeed if it’s based on the denial of rights to nations that play by the rules.” On 

the other hand, the actual “right” to which he referred 

was apparently not one that included unqualified access to technology irrespective of proliferation risk. 

Quite the contrary, in fact, Obama specified no more 

than that “the right of every nation that renounces 

nuclear weapons” has the right to “access peaceful 
257

power without increasing the risks of proliferation.”41

The Prague speech seems to have been received 

around the world as a repudiation of Bush-era policies. Despite its conciliatory tone, however, it seems 

with regard to Article IV issues to have been closer to 

a reaffirmation of the approach propounded by John 

Bolton and others (including this author) during the 

Bush administration. The “right” Obama described 

was merely to “access power” rather than specifically 

to access technology, and even this was further qualified by the requirement that its exercise not increase 

proliferation risk. It is far from clear what, if anything, 

the new president will wish, or be able, to do with 

regard to nuclear technology control—and whether 

it will turn out to be helpful or harmful to nonproliferation that there is apparently such a gap between 

what people assume he said in this regard and what 

he actually did.42 Nevertheless, it is at least potentially 

significant that Obama seems to have offered the most 

recent official articulation of the “safeguardability” 

perspective.

The Americans are not alone. A French working 

paper presented to the third Preparatory Committee 

meeting for the 2005 NPT Review Conference, for instance, clearly repudiated the notion of per se technology access rights. The French paper noted that “[d]

eveloping peaceful uses of nuclear energy . . . does not 

require, in the large majority of cases, sensitive and 

potentially proliferating technologies,” but it implied 

that should a conflict occur between the objective of 

peaceful development and the requirements of nonproliferation, the latter should prevail. Technology 

access, it stressed, “should only be envisaged in the 

light of the existence of a set of conditions relevant to 

the global non-proliferation regime and NPT objec-
258

tives.”43 Paris pledged to offer the developing world 

“[i]ncreased access to non-sensitive technologies”—in 

fact, “guarantees of access”—but it carefully phrased 

this promise so as not to promise access to sensitive 

ones.44 The paper made clear, moreover, that no cooperation should be pursued with any state “for 

which the IAEA cannot provide sufficient assurances 

that their nuclear program is devoted exclusively to 

peaceful purposes,” with any state where there was 

“an ‘unacceptable risk of diversion,’” or when it was 

“impossib[le] for the Agency to carry out its mission.”45

Apart from such by-implication treatment of the 

underlying Article IV legal issues, however, governments concerned about the proliferation risk of spreading ENR technology either have remained studiously 

quiet about the legal import of Article IV, or have simply appeared confused. Despite the fact that governments have been so shy about offering a detailed and 

official account of the specifically legal case46 against an 

Iranian-style “rights”-based view of Article IV, however, notable observers of NPT issues—experts spanning the conventional political spectrum—have been 

offering just such legal arguments for years.

b. Outside Experts. In a 1976 paper prepared for 

the U.S. Arms Control and Disarmament Agency 

(ACDA), seminal Cold War nuclear theorist Albert 

Wohlstetter warned of the dangers of allowing dualuse civilian nuclear technology to spread. This, he 

said, was creating “[a] kind of growing legitimate—

but Damocletian—‘overhang’ of countries increasingly near the edge of making bombs” that would make 

nuclear safeguards “increasingly irrelevant.”47 Wohlstetter warned of the dangers of a situation in which, 

“in return for their (revocable) promise not to make or 
259

accept nuclear explosives,” nonweapons states would 

continue to acquire “civilian technologies that would 

carry them a long distance on the road to nuclear explosives.”48

Wohlstetter characterized the NPT as being fundamentally—and dangerously—ambiguous about 

peaceful uses, reflecting a broader confusion he felt to 

have been partly engendered by early rhetoric about 

the presumed—but, he stressed, notably “exaggerated”—benefits of nuclear power for the developing 

world.49 The Treaty was, he said,

a highly ambiguous and uncertain set of compromises, reflecting but not resolving . . . dilemmas about 

national sovereignty and the problem of encouraging 

civilian nuclear energy while discouraging military 

nuclear energy.50

This confusion lay at the root of the regime’s problems 

with technology, for “the present rules of the game” 

permitted countries to “take . . . long strides towards 

nuclear weapons capability in the next 10 years or so 

without violating the rules—at least no rigorously formulated, agreed on rules.”51

The other side of this ambiguity, however, was 

that interpreting the NPT in a sensible and sustainable 

way was not prohibited. Wohlstetter argued that “[t]

he line drawn between safe activities that are permitted under agreement and dangerous prohibited activities needs to be redrawn and clearly defined to make 

safeguards relevant.”52 In his view, there was no sharp 

distinction between “safe” and “dangerous” activities, with the result that the advisability of spreading 

technology should be assessed according to its impact 

upon “the shrinking critical time” needed to make a 

nuclear weapon.53 He warned that the nonprolifera-
260

tion regime faced stresses because of early assumptions about the “simple dichotomies” between safety 

and danger, and that “sensible decision making and 

international bargaining in this field” required more.54

In particular, Wohlstetter observed that it would be 

necessary to “persuad[e] less developed countries to 

forego national capabilities” in certain risky technological areas.55

Wohlstetter’s analysis focused in particular upon 

chemical reprocessing of plutonium, which he argued 

in some detail was not merely “uneconomic” but in 

fact simply could not be safeguarded in such a way as 

to provide timely warning of misuse and therefore 

“creates unjustifiable risks.”56 His point was a broader 

one of principle, however, not merely a technologyspecific risk assessment. His basic idea was that if the 

nonproliferation regime were to make any sense, and indeed to survive, consideration of proliferation risk had 

to be a part of all technology-access decisions57—and that 

there thus could be no per se right to technology.

Wohlstetter’s argument in 1976 was framed more in 

policy and economic terms than in legal ones. In 1979, 

however—in another report prepared for ACDA—

he sharpened his already implicit legal conclusion. 

Wohlstetter noted there that if the “fullest possible exchange” provisions of Article IV(2) were taken to include “the provision of stocks of highly concentrated 

fissile material within days or hours of being ready 

for incorporated into an explosive,” this would “certainly ‘assist’ an aspiring nonnuclear weapons state in 

making such an explosive”—thus violating the “assistance” prohibition of Article I.

No reasonable interpretation of the Nonproliferation 

Treaty would say that the treaty intends, in exchange 

for an explicitly revocable promise by countries with-
261

out nuclear explosives not to make or acquire them, to 

transfer to them material that is within days or hours of 

being ready for incorporation into a bomb. Some help 

and certainly the avoidance of arbitrary interference in 

peaceful uses of nuclear energy are involved. However, the main return for promising not to manufacture 

or receive nuclear weapons is clearly a corresponding promise by some potential adversaries, backed 

by a system to provide early warning if the promises 

should be broken. The NPT is, after all, a treaty against 

proliferation, not for nuclear development.58

Further articulation of these ideas was offered by Arthur Steiner, Eldon Greenberg, Paul Leventhal, Leonard Weiss, and others. Steiner, for instance, rejected 

the “dubious” idea that “non-weapons states have 

the absolute right to receive any and all nuclear assistance” short of actually obtaining nuclear explosive 

devices. He interpreted Article IV as being necessarily 

“subordinate to, and to be interpreted in conformity 

with Articles I and II.”59 Examining the legislative history of the Treaty, Steiner declared that:

“[i]t seems quite clear . . . that it was not the intent of 

the framers of the NPT to create an obligation to supply any and all forms of nuclear energy with a single 

exception of actual explosive devices. The logic of the 

NPT does not support the idea that either weapons 

or non-weapons states wish to have their security 

reduced by unrestricted commerce in especially dangerous forms of nuclear energy. . . . The evidence is 

overwhelming that the ‘straightforward bargain’ [of 

weapons-relinquishment in return for unrestricted access to technology for peaceful purposes] is a dangerous myth.60

This conclusion was not surprising to Steiner:

It is, after all, a nonproliferation treaty. The provision 
262

of certain types of nuclear technology that defeat the 

objective of nonproliferation by bringing a non-weapons state recipient within days or hours of a weapon 

cannot be an objective . . . [of] a nonproliferation treaty.61

Eldon Greenberg’s subsequent paper on the subject for the Nuclear Control Institute62—which approvingly quoted both Wohlsteter and Steiner—also 

analyzed the NPT’s treatment of “nuclear equipment, 

technologies and materials . . . ostensibly for peaceful purposes in denominated civilian nuclear power 

programs.”63 (As it had been with Wohlstetter’s argument, Greenberg’s specific focus was plutonium 

reprocessing, but his legal point was not limited to 

this particular technology.) He described there being 

“a dynamic tension in the Treaty between its prohibitions and its injunctions to cooperate in peaceful uses 

of nuclear energy.” Greenberg concluded, however, 

that the NPT’s language and history—and in particular, the “in conformity with” language that qualifies 

the “inalienable right” described in Article IV(1)—

tend[s] to support the conclusion that Articles I, II, 

and IV must be read together in such a way that assistance or activities which are ostensibly peaceful and 

civilian in nature do not as a practical matter lead to 

proliferation of nuclear weapons. The NPT, in other 

words, can and should be read as permitting the evaluation of such factors as proliferation risk, economic or 

technical justification and safeguards effectiveness in 

assessing the consistency of specific or generic types 

of assistance and activities with the Treaty’s restrictions, to ensure that action is not taken in the guise of 

peaceful applications of nuclear energy under Article 

IV which in fact is violative of the prohibitions of Articles I and II.64

Greenberg apparently did not think that this conclu-
263

sion was legally compelled by the NPT. Arguing against 

the view that any technology short of actual weapons 

could be permitted to nonweapons states as long as 

this technology was subjected to IAEA safeguards, 

he stressed that “there is another way to interpret the 

NPT.”65 Specifically, it was “reasonable to interpret 

the Treaty” as prohibiting even notionally “civilian” 

uses where “safeguards under Article III of the Treaty 

are not effective.”66

Greenberg did not think safeguards could be effective, especially with regard to plutonium reprocessing. He contended, following Wohlstetter, that 

there were “serious questions” about “the ability to 

safeguard effectively now or in the foreseeable future 

certain forms of assistance and activities, such as those 

related to reprocessing and plutonium recycle.” As a 

result, “it is reasonable to conclude that the contemplated verification function of Article III cannot be fulfilled today.”67 Accordingly, Greenberg felt that “the 

presumption that the particular assistance or activity runs afoul of the prohibitions of Articles I and II 

should again arise.”68

As this example indicates, Greenberg’s was necessarily a strong position against “bright line” rules 

with regard to technology access. He was quite explicit about this, writing that “the NPT creates no per 

se rules with respect to acceptable uses and, indeed, 

allows a pragmatic interpretation of its provisions.”69

Since questions with respect to the economics and 

safeguardability of . . . [specific nuclear technologies] 

are essentially factual in nature, judgments with respect to the applicability of the NPT’s prohibitions can 

and should be made on a case-by-case basis, in light of 

al the facts and circumstances surrounding particular 

nuclear assistance or activities.70
264

As he later summed up his view, it was:

perfectly legitimate to evaluate such factors as proliferation risk, economic or technical justification and 

safeguards effectiveness in determining whether specific or generic types of assistance or activities should 

be regarded as permissible under the NPT.71

Significantly, proliferation risk was first and foremost 

among the factors that needed to be considered, for—

as Greenberg pungently put it—“the NPT ‘does not 

require us to do something foolish’.”72

At some point, particular assistance or activities may 

become so risky, even though they do not involve the 

transfer and acquisition of weapons or explosives as 

such, that they can no longer be deemed in conformity 

with the requirements of Articles I and II, even though 

by their stated terms they are for peaceful power applications only.73

Similar arguments, citing Greenberg, were subsequently advanced by Paul Leventhal at the Nuclear 

Control Institute, who argued that the “conformity” 

qualifications upon the “right” described in Article 

IV(1) meant that weapons-usable fissile materials 

“can be banned [for nonweapons states] under the existing terms of the Treaty” because “IAEA safeguards 

are clearly inadequate” to provide effective assurances against their misuse.74 Writing upon the 50th anniversary of President Dwight Eisenhower’s “Atoms 

for Peace” speech, Leonard Weiss also criticized “the 

notion that the NPT requires nuclear weapon states 

to share technology for producing separated fissile 

material with non-weapon states,” and decried “the 

early euphoric embrace of Atoms for Peace, when the 
265

spread of nuclear technology was unaccompanied by 

adequate consideration of proliferation risks.”75 Additionally, in a 1996 discussion of Article IV, Weiss 

argued that while international disputes over the 

meaning of its provisions have yet to reach “formal 

resolution,” IAEA safeguards “cannot be effectively

carried out at this time for enrichment and reprocessing facilities” and that therefore those who transfer 

such technology might “find themselves in violation 

of Article I.”76

This line of reasoning is also reflected in the writing of Henry Sokolski of the Nonproliferation Policy 

Education Center (NPEC)—who edited the volume in 

which Weiss’ 1996 analysis appeared. In 1996, for instance, Sokolski argued that:

the NPT’s framers understood that some forms of civil 

nuclear energy(e.g., weapons-usable nuclear fuels and 

their related production facilities) were so close to 

bomb making that sharing them might not be in ‘conformity’ with Articles 1 and 2.77

Also casting doubt upon the ability of IAEA safeguards to provide timely warning of diversion, Sokolski cautioned that if the NPT were to have “worth . . . 

in the decade ahead,” it would be necessary to focus 

upon the Treaty’s “original concerns” as a nonproliferation instrument and “correct for its current deficiencies”78 in that it was all too often being interpreted 

as a technology-privileging agreement. Fidelity to the 

original intention of the Treaty, said Sokolski, meant 

rejecting the idea that a nonweapons state has “a 

‘peaceful’ right to acquire all it needs to come within 

days of having a bomb.” Instead, he said, it must be 

accepted that “although nations should be free to develop peaceful nuclear energy . . . whether or not a 
266

particular activity met this criterion depended upon 

a number of factors”—including whether this application could be safeguarded in a way that provided 

timely warning of misuse.79

In contemporary debates—that is, in the wake of 

the revelations about Iran that bubbled forth after 

2002—NPEC has continued to propound this counterpoint to Iran’s rights-privileging reading of Article IV. 

Specifically, Sokolski has continued to argue the need 

to:

reinterpret existing rules to eliminate the mistaken 

belief that all forms of civilian nuclear activity, including those that bring states within days of acquiring 

nuclear weapons, are guaranteed.80

As Sokolski suggested before a congressional subcommittee in 2006, if the international community wishes 

to ensure the continued validity of the NPT regime, it 

should not “make our past mistakes [in interpreting 

Article IV] hereditary by grandfathering dangerous 

nuclear activities in . . . nonweapons states.”81

In 2008, NPEC researcher Robert Zarate published 

a specifically legal analysis of Article IV which picked 

up the various themes—including the emphasis upon 

safeguardablity—stressed by Wohlstetter, Steiner, 

Greenberg, and Sokolski, and which built upon research into the NPT’s negotiating history undertaken 

by Paul Lettow in May 2005.82 Zarate contended that 

the NPT, “at a minimum,” can be interpreted as “not 

recognizing the ‘inalienable right’ of signatories to 

nuclear materials, technologies, and activities that the 

IAEA cannot effectively safeguard.”83 He argued further that:

“the [International Atomic Energy] Agency cannot 
267

provide—even in principle—timely warning of a nonnuclear-weapon state’s diversion of weapons-ready 

nuclear materials from civilian applications to nuclear 

weapons or unknown purposes; it must tolerate, under its current accounting methods, large amounts of 

unaccounted nuclear material at facilities that handle 

such material in bulk form before even beginning to 

suspect a diversion; and it appears to lack adequate 

financial resources to carry out many of its safeguarding activities effectively.”84

Because Article III requires safeguards on nuclear activities in nonweapons states—and because to read 

the Treaty any other way would make Article III incoherent—“the NPT may be understood as prohibiting 

non-nuclear weapon signatories from unsafeguardable nuclear materials, technologies, and activities.”85

Surveying its negotiating history, Zarate argued 

that Article IV is perfectly consistent with a reading 

that interprets the “inalienable right” as being qualified in three ways. First, peaceful use applications 

must be “economically beneficial in accordance with 

the treaty’s preamble. Second, they must possess a low 

risk of proliferation in accordance with Articles I and 

II. Third, they must be “effectively safeguardable and 

undertaken in full compliance with NPT and IAEA 

safeguard obligations in accordance with Article III.”86

The view that adopting a per se rule of technology access rights under Article IV is to misinterpret 

that provision of the Treaty—or at least that the NPT 

need not, and for quite sound nonproliferation reasons 

should not, be interpreted in that fashion—has increasingly been picked up elsewhere in the nonproliferation community. It was, for instance, adopted in a 

2007 Council on Foreign Relations study of nuclear 

energy issues written by Charles Ferguson. Subtitled 
268

“Balancing Benefits and Risks,” Ferguson’s report 

discussed the proliferation risks attendant to nuclear 

fuel making, and described certain critical problems 

of applying nuclear safeguards to such technologies.87

Among other things, Ferguson warned that “greater 

efforts are needed . . . to limit the spread of fuel-making technologies”88 and declared that “the NPT’s right 

to peaceful nuclear technologies” should be “properly interpret[ed]” to make clear that “[t]his right . . 

. comes with the responsibility to maintain adequate 

safeguards” and that the NPT does not “specifically” 

guarantee “nuclear fuel-making facilities as part of 

that right.”89

The Commission on the Prevention on the Prevention of Weapons of Mass Destruction Proliferation and 

Terrorism also seems, by implication, to have taken 

such a view of Article IV in its final report published in 

2008. One of its key recommendations on nuclear nonproliferation was “to prevent the spread of uranium 

enrichment and plutonium reprocessing technologies 

and facilities to additional countries,” and it urged the 

United States to “work to orchestrate an international 

consensus to block additional countries from obtaining these capabilities.”90 This recommendation seems 

to have been based upon the Commission’s concerns 

about “the inherent difficulty of reliably detecting 

dangerous illicit nuclear activities in a timely fashion.” 

Some of these difficulties, the Commission warned, 

“are not likely to be remedied no matter how much 

the IAEA’s resources are increased.” In particular, this 

was the case with “detecting military diversions from 

nuclear fuel cycle activities.”91 Since such capabilities 

could not be safeguarded, their acquisition had to be 

prevented—and the Commission apparently saw no 

legal problem with doing so.
269

The Congressional Commission on the Strategic 

Posture of the United States seems to have reached 

a similar conclusion in late 2008. Its Interim Report 

warned that nuclear proliferation stood at a “tipping 

point,” beyond which a “cascade” of proliferation 

might occur, and it noted that the IAEA had not been 

given the support it needed to provide adequate protection of fissile materials.92 The terse report did not 

offer a legal analysis of the NPT, but it made clear that 

the Commission had reached a grim conclusion about 

how well the Treaty has hitherto generally been interpreted as a barrier to proliferation. To wit, it declared 

that the NPT’s “effectiveness has been undermined by 

errors in how it has been interpreted and by failures of 

enforcement by the UN Security Council.”93 (It urged 

the United States to work to fix such interpretive errors at the 2010 NPT Review Conference.) The Commission’s final report, released in 2009, emphasized 

that the “further globalization of nuclear expertise” 

will “inevitably increase the risks of possible diversion to illicit purposes.”94 It did not discuss the “right” 

discussed in Article IV beyond reiterating the NPT’s 

requirement that it be limited to peaceful uses (i.e., “in 

conformity with Articles I and II of this Treaty”), but 

the Commission urged governments to agree to “limit 

access to enrichment and reprocessing technologies, 

and the facilities that employ them, to the maximum 

extent possible.”95

Arguments consistent with, or explicitly supportive of, a “safeguardability” reading of Article IV have 

thus been offered for many years. (This is a history of 

critical analysis to which I myself would have already 

added a voice, had I not in 2007 been refused clearance 

by the State Department’s Office of the Legal Advisor 

to make similar points even in an essay drafted as my 
270

“personal views.”96) To sum up the “safeguardability” perspective, the vague text of Article IV is read 

as embodying no more than an elaboration upon the 

idea expressed in the NPT Preamble about sharing the 

benefits of nuclear technology.97 Safeguardability recasts the legal analysis of Article IV, turning claims of 

a rights-based discourse on their head by rejecting the 

idea that the NPT discusses peaceful use “rights” in 

any sense other than affirming a right to the benefits of 

nuclear technology. Through this lens, sharing of the 

technology itself, or of nuclear materials, is not a question of right at all but rather of policy: whether or not 

such access can be given in a way consistent with the 

overarching purpose of the Treaty in preventing the 

proliferation of nuclear weapons. To be sure, possessors have the obligation to work to help all of mankind, 

and not just some of it, benefit from nuclear know-how. 

Nevertheless, proliferation risk trumps peaceful 

use “rights” where sharing specific technologies is 

concerned. The most forgiving form of the safeguardability argument might simply deny the existence of 

ENR “rights.” This would effect a de-legalization of the 

NPT’s peaceful use discourse,98 leaving specific technology-sharing questions to be resolved on a case-bycase basis as a matter for technically-informed policy 

choice. As we have seen, many authors have criticized 

the adequacy of IAEA safeguards, questioning the 

Agency’s ability—at least with its current resources, 

or by some accounts at all—to provide genuinely 

timely warning of the diversion of particular types of 

nuclear technology. This line of argument runs back 

through the critiques of plutonium reprocessing offered by Wohlstetter, Steiner, and Greenberg, which 

have been echoed by some experts today, and indeed 

expanded to cover uranium enrichment and even the 
271

operation of light water nuclear reactors.99 The simple 

“de-legalization” form of the safeguardability critique 

would hold simply that there is no right to such technology, and that as a matter of policy, right-thinking 

members of the international community should work 

to stop the spread of any capabilities that cannot adequately be safeguarded, because of the proliferation 

risks that they entail. (As noted above, this is about as 

far as we got within the U.S. State Department in 2004 

and 2005, with our interagency-cleared remarks about 

Article IV and ENR.100)

But one might perhaps go further. A stronger form 

of the safeguardability critique—already suggested by 

at least some of the authors surveyed above—would 

build upon factual assessments of unsafeguardability 

toward a legal conclusion of such technologies’ impermissibility. Such arguments tend to note that the 

possession of inadequately safeguarded materials or 

facilities raises Article III compliance problems, while 

Article I requires nuclear weapons states, at least, to 

avoid assisting nuclear weapons efforts in nonweapons states. If it is indeed the case that the IAEA cannot adequately safeguard certain nuclear activities, 

some authors have thus suggested that these should 

be understood as being prohibited by the NPT for 

states not already lawfully having nuclear weapons. 

This is a potentially dramatic conclusion, for it would 

raise questions not only about the impermissibility of 

spreading capabilities such as uranium enrichment and 

reprocessing, but also about the existing fact of their 

possession by nonweapons states (e.g., plutonium 

bulk-handling facilities in Japan).

Such a “strong form” of the safeguardability argument, however, has its weaknesses as a question of 

legal interpretation. It is easier and usually more plau-
272

sible, for instance, to read a vague committee-drafted 

text as ducking a contentious issue than to interpret 

its ambiguity as a sharp prohibitory stand. It is also 

problematic to build a general technology-prohibition 

argument—however substantively sensible such a 

position might be—so heavily upon inferences from 

the weapons-assistance ban of Article I, which by its 

terms applies only to nuclear weapons states, and at 

least arguably does not prohibit nonweapons states 

from assisting others’ nuclear weapons programs.101

Either way, however, the distinctiveness of the 

safeguardability reading of the NPT’s peaceful use 

provisions is in its transformation of the debate from 

a policy-trumping discourse of “rights” into a policyprivileging arena for technically-informed substantive 

judgments involving the consideration of such things 

as specific safeguards capabilities and the time needed 

for an effective response to the detection of a violation. 

Safeguardability approaches to technology access, in 

other words, tie themselves to a calculus of proliferation risk—a focus that their defenders suggest is entirely appropriate, and indeed quite necessary, under 

a nonproliferation treaty.

A PREHISTORY OF NUCLEAR 

TECHNOLOGY CONTROL

Despite the recently increased salience of Article 

IV debates in the struggles over Iranian proliferation 

challenges, the conceptual lines have long been fairly 

clearly drawn. What, however, are we to make of all 

this? One useful way to help approach the NPT’s treatment of peaceful use issues is to understand the context of the broader problem of technology control that 

has been keenly understood—and was approached 
273

in characteristic ways—from the very earliest years 

of the international community’s struggle to come to 

grips with the implications of the nuclear age.

Struggling With Janus: The Acheson-Lilienthal Era.

The idea of ensuring broad international participation in the benefits that nuclear technology can bring to 

mankind, yet while trying to avoid spreading knowledge and capabilities related to its destructive aspects, 

goes back to the dawn of the nuclear age. It has always 

been understood that nuclear technology is in no way 

always a good, and that its spread requires qualification commensurate to the risks. For this reason, it was 

recognized at the beginning of mankind’s struggle 

with these nuclear tensions that a commendable focus 

upon spreading the benefits of nuclear power did not 

necessarily imply any commitment to spreading all 

nuclear know-how—and indeed that a genuine commitment to nuclear benefits did necessarily imply careful attention to what specific capabilities should not be 

spread.

In a Joint Declaration in November 1945, for instance, U.S. President Harry Truman, British Prime 

Minister Clement Attlee, and Canada’s Prime Minister 

Mackenzie King stressed their belief in sharing what 

they called “the fruits” of nuclear scientific research. 

They noted, however, that “[t]he military exploitation 

of atomic energy depends, in large part, upon the same 

methods and processes as would be required for industrial uses,” and suggested pointedly that it would 

be counterproductive to share technology in the absence of effective “and enforceable” safeguards.102

Crucially, moreover, it was also understood from 

the start that the types of nuclear know-how that 
274

should not be shared were not limited solely to those 

involved in endstage manufacture of nuclear weaponry. Actual bomb making skills clearly should not be 

shared, of course, but as the Joint Declaration suggested, a sane approach to managing the tension between 

the destructive and creative powers of nuclear technology required attention to the degree to which safeguards could control the proliferation risks of shared 

technology.

The idea that certain nuclear capabilities and activities were inherently dangerous, and that they should 

not be shared or spread more widely, dates from the 

very earliest years of the international community’s 

struggle with nuclear energy. Even as scientists and 

policymakers scrambled to figure out how to share 

nuclear benefits more widely in the name of socioeconomic progress, those aspects of nuclear technology that were common to both weapons work and 

to peaceful uses were naturally the focus of special 

concern and attention. They were widely, and quite 

explicitly, regarded as being something that needed 

to be controlled: something to which access should 

be restricted unless and until approaches could be 

developed that could preclude their exploitation for 

weapons-related work.

The idea that some technologies and activities were 

inherently “dangerous,” for example, was a fundamental aspect of the U.S. Government’s famous “Baruch Plan”—which in 1946 called for the creation of an 

International Atomic Development Authority to exercise “[m]anagerial control and ownership of all atomic-energy activities potentially dangerous to world 

security.” Specifically, the proposed Authority was to 

exercise exclusive control over “intrinsically dangerous activities” such as “the production of fissionable 
275

materials,” including “all plants producing fissionable 

materials.”103 In addition to “all facilities for the production of U-235, plutonium and other such fissionable materials,” the Authority was therefore to have 

control over all fissile materials themselves, “wherever present in potentially dangerous quantities.” Sharp 

restrictions upon access to such capabilities—which the 

Baruch Plan proposed in the form of exclusive international control—were necessary because “all the initial 

processes in the production of these fissionable materials . . . are identical whether their intended use or 

purpose is beneficent or dangerous.”104

Nor was it expected that the category of intrinsically dangerous activities was one that would remain 

fixed for all time. To the contrary, there was no fixed 

line between “safe” and “dangerous” nuclear technologies. It was expected that as technology developed—

or our understanding of nuclear risks matured—this 

category might change. Because of the need to flexibly 

define intrinsic danger according to the best understanding of the time, it was thus considered necessary 

to give the proposed International Atomic Development Authority the authority to define, and redefine, 

the categories of technology requiring international 

control.105 The Authority needed “the power to determine, and adjust from time to time, in accordance 

with increased knowledge, the dividing line between 

‘safe’ and ‘dangerous’ activities as new conditions demand.”106

The issue of nuclear technology-access, in other 

words, was not to be a matter of legal “rights,” but 

rather a scientifically-informed question of nonproliferation policy. It was very important that “the benefits” derived from atomic energy research and development be available to all mankind,107 but the specific 
276

issue of technology-access had always to be subordinated to nonproliferation considerations. As the United States put it at the time, it was “important” to share 

nuclear benefits, but it was a “prime purpose” of the 

proposed authority to “prevent national development 

or use of atomic armament.”108 What could not safely 

be shared must not be.

It was therefore central to the scheme that technology-access policy hinge upon whether, and the degree 

to which, the wider spread of specific nuclear knowhow was consistent with preventing proliferation 

in light of the best available understanding of what 

could be made “proliferation proof” in protecting 

against weapons-related exploitation. To officials at 

the time, fuel-cycle technology was clearly “intrinsically dangerous” and consequently unshareable, but 

this was not a conclusion written in stone. The key 

insight was that nothing should be permitted outside 

the exclusive control of the proposed Authority that 

could be exploited for weapons development. A rigorously-defined notion of safeguardability, in effect, was 

the litmus test of technology access for any national 

government.

The Baruch Plan was the outgrowth of an extensive 

U.S. review of nuclear policy that culminated in the 

so-called Acheson-Lilienthal Report of March 1946, 

which had provided the intellectual underpinnings 

for the approach proposed by Bernard Baruch to the 

UN Atomic Energy Commission later that year. While 

U.S. officials were well aware that “the only complete 

protection for the civilized world from the destructive 

use of scientific knowledge lies in the prevention of 

war,”109 the authors of the Report clearly felt that there 

were better and worse ways to reduce the tremendous 

dangers presented by nuclear technology short of 
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achieving complete world peace.

The Baruch Plan’s distinction between “safe” and 

“dangerous” nuclear activities—with only the former 

being appropriately left in national hands—derived 

from the Acheson-Lilienthal Report.110 That study 

argued that, for the sake of global security, an international control authority must be given “exclusive 

jurisdiction to conduct all intrinsically dangerous operations in the [nuclear] field.” The line between safe 

and dangerous, as we have seen, was “not sharp and 

may shift from time to time in either direction.” (It 

would be, said the Report, up to the Atomic Development Authority “continually to reexamine the boundary between dangerous and nondangerous activities.”)111 “In our view, any activity is dangerous which 

offers a solution either in the actual fact of its physical 

installation, or by subtle alterations thereof, to one of 

the three major problems of making atomic weapons: 

(1)The provision of raw materials, (2)The production 

in suitable quality and quantity of the fissionable materials plutonium and U 235, and (3)The use of these 

materials for the making of atomic weapons.”112

Interestingly, the Report considered even nuclear 

power generation—which was not in fact then possible, because “existing plants are not designed to operate at a sufficiently high temperature for the energy 

to be used for the generation of electrical power”—to 

be an intrinsically dangerous nuclear activity.113 (It 

reached this conclusion, moreover, despite the initial 

belief of its drafters that techniques of “denaturing” 

uranium and plutonium in reactor fuel could “render materials safer” so that they “do not readily lend 

themselves to the making of atomic explosives.”114

The fact that this assumption about denaturing was 

already under question at the time the document was 
278

released—leading the U.S. Government to re-release 

the Report with an explanatory press release noting 

that it “does not contend nor is it in fact true, that a 

system of control based solely on denaturing could 

provide adequate safety”115—simply highlighted the 

conclusion. Another technology emphatically noted 

as “dangerous” was the production of fissile material 

itself: uranium isotopic separation and reactor operation for plutonium production. Such activities were 

clearly “intrinsically dangerous operations, ” and the 

Report argued pointedly that fissile material production “may be regarded as the most dangerous [type of 

activity], for it is through such operations that materials can be produced which are suitable for atomic 

explosives.”116

The analysis underpinning the Report reflected 

great skepticism about the utility of a control system 

in which nations remained free to undertake nuclear 

activities that would be useful both for peaceful applications and for weapons development, even if some 

international inspectorate could be created in an effort 

to monitor activity for possible impermissible weapons-related work. An “agency with merely police-like 

powers attempting to cope with national agencies otherwise restrained only by a commitment to ‘outlaw’ 

the use of atomic energy for war”117 would be, the Report argued, inherently inadequate. For an inspection 

system to be feasible, the Report noted, safeguards 

mechanisms must:

provide unambiguous and reliable danger signals if a 

nation takes steps that do or may indicate the beginning 

of atomic warfare. Those danger signals must flash early 

enough to leave time adequate to permit other nations—

alone or in concert—to take appropriate action.118
279

Yet the activities involved in developing atomic energy for peaceful purposes and those used in developing it “for bombs” were too “interchangeable and 

interdependent,” and the potential consequences of 

military diversion too great, for any stable regime 

to rely simply upon national government good faith 

backed by some sort of inspections. It was simply not 

possible, the Report’s authors believed, for safeguards 

to ensure the requisite timely warning: “[i]f nations or 

their citizens carry on intrinsically dangerous activities it seems to us that the chances for safeguarding 

the future are hopeless.”119

The Report’s explanation is worth quoting at 

length, for, if correct, it would have fateful implications for today’s Article IV debates.

From this it follows that although nations may agree 

not to use in bombs the atomic energy developed within their borders the only assurance that a conversion to 

destructive purposes would not be made would be the 

pledged word and the good faith of the nation itself. 

This fact puts an enormous pressure upon national 

good faith. Indeed it creates suspicion on the part of 

other nations that their neighbors’ pledged word will 

not be kept. This danger is accentuated by the unusual 

characteristics of atomic bombs, namely their devastating effect as a surprise weapon, that is, a weapon 

secretly developed and used without warning. Fear 

of such surprise violation of pledged word will surely 

break down any confidence in the pledged word of 

rival countries developing atomic energy if the treaty 

obligations and good faith of the nations are the only 

assurances upon which to rely.

. . . We have concluded unanimously that there is no 

prospect of security against atomic warfare in a system 

of international agreements to outlaw such weapons 

controlled only by a system which relies on inspection and similar police-like methods. The reasons sup-
280

porting this conclusion are not merely technical, but 

primarily the inseparable political, social, and organizational problems involved in enforcing agreements 

between nations each free to develop atomic energy 

but only pledged not to use it for bombs. National rivalries in the development of atomic energy readily 

convertible to destructive purposes are the heart of the 

difficulty. So long as intrinsically dangerous activities 

may be carried on by nations, rivalries are inevitable 

and fears are engendered that place so great a pressure 

upon a system of international enforcement by police 

methods that no degree of ingenuity or technical competence could possibly hope to cope with them.

. . . We are convinced that if the production of fissionable materials by national governments (or by private organizations under their control) is permitted, 

systems of inspection cannot by themselves be made 

“effective safeguards . . . to protect complying states 

against the hazards of violations and evasions.”

. . . The efforts that individual states are bound to 

make to increase their industrial capacity and build 

a reserve for military potentialities will inevitably 

undermine any system of safeguards which permits 

these fundamental causes of rivalry to [continue to] 

exist. In short, any system based on outlawing the 

purely military development of atomic energy and 

relying solely on inspection for enforcement would at 

the outset be surrounded by conditions which would 

destroy the system.

. . . [T]he facts preclude any reasonable reliance upon 

inspection as the primary safeguard against violations of conventions prohibiting atomic weapons, yet 

leaving the exploitation of atomic energy in national 

hands.120

The Report thus emphasized that “an otherwise uncontrolled exploitation of atomic energy by national governments will not be an adequate safeguard” and that 
281

the “necessary preconditions for a successful scheme 

of inspection . . . cannot be fulfilled in any organizational 

arrangements in which the only instrument of control is 

inspection.”121 It did not mince words:

It is not possible to devise an atomic energy program 

in which safeguards independent of the motivation of 

the operators preclude the manufacture of material 

for atomic weapons.”122 This conclusion about the unavoidable inadequacy of any inspection-based system 

of safeguards which allowed fissile material production capacity to remain in national hands formed the 

basis for the U.S. conclusion that an international agency be created with exclusive prerogatives to engage in 

those “activities which it is essential to control because 

they are dangerous to international security.”123

For these very reasons, the Acheson-Lilienthal Report 

also made clear that the national government’s access 

to nuclear technology could not be made a question 

of legal right. Such “rights” would undermine the 

control system by preventing the kinds of restrictions 

that would be required in order to preserve international peace and security. The Report deemed it “essential” for any “workable system of safeguards” to 

“remove from individual nations or their citizens the 

legal right to engage in certain well-defined activities 

in respect to atomic energy . . . [that are] intrinsically 

dangerous because they are or could be made steps 

in the production of atomic bombs.”124 Only if technology access were a policy question—indexed, in effect, to proliferation risk—could a workable regime 

survive. A rights-based discourse about fissile material production and stockpiling was understood to be 

fundamentally incompatible with global security in 

the nuclear age.

United Nations Endorsement. Though these conclu-
282

sions were resolutely opposed by the Soviet Union and 

its communist allies—Moscow, of course, being then 

hard at work developing its own nuclear weapons on 

the basis of information pilfered from the Manhattan 

Project, and thus none too keen on a system that would 

remove weapons-making technology from national 

governments’ hands—the basic outlines of the Baruch 

Plan were endorsed by considerable majorities in the 

young UN. The first report of the UN Atomic Energy 

Commission (UNAEC) in 1946 emphasized:

the intimate relation between the activities required 

for peaceful purposes and those leading to the production of atomic weapons; most of the stages which are 

needed for the former are also needed for the latter. . . 

. [T]he productive processes are identical and inseparable up to a very advanced state of manufacture.125

This made international control of such capabilities 

imperative. This identity and inseparability of the 

productive processes for nuclear fuel and nuclear 

weapons material made fuel-cycle technology effectively unsafeguardable: these were not capabilities 

that could safely be left in national hands.126

Interestingly, the UNAEC did not follow the United States in endorsing the idea of giving the proposed 

international Authority carte blanche in making the sort 

of risk based policy determinations that would be necessary in setting the specific contours of permissible 

nuclear “benefit”-sharing. This was not, however, out 

of any concern that the Authority would be too strict 

in drawing the line against peaceful use applications 

that entailed proliferation risks. Instead, the Commission seems in part to have feared that the Authority 

might be too lenient: “[i]f the agency were free to decide the rate of production of nuclear fuel and were 
283

to embark upon a policy of production exceeding 

recognized or actual beneficial uses . . . the conditions 

of world security would be greatly affected.”127 The 

UNAEC, in other words, was concerned to ensure that 

global nuclear policy was not made so solicitous of requests for peaceful uses that it threw nuclear weapons 

proliferation considerations to the winds.

Noting “the conflict between the requirements of 

security and those of preparing for large-scale application of peaceful developments” of nuclear energy, 

the UNAEC recommended that the proposed Authority keep fuel production “at the minimum required 

for efficient operating procedures necessitated by 

actual beneficial uses, including research and development.”128 (Remember also that this discussion only 

occurred within a framework that presupposed the 

Authority’s exclusive right to engage in fissile material 

production: even internationally-controlled production 

was thus understood to risk creating nonproliferation 

problems, and had to be kept to the bare minimum possible consistent with what was actually “beneficial.”) 

In approaching the objective of sharing the “benefits” 

of nuclear technology, therefore, the Commission 

seems to have perceived a linkage between the idea of 

“actual beneficial uses” and “the conditions of world 

security.” Nuclear “benefits” could not be approached 

independently of the issue of preventing states from 

developing nuclear weapons.

THE PRIMACY OF SECURITY

The UNAEC was quite firm that international control of nuclear energy was needed because the proliferation risks would be intolerable if each state were 

to claim the “right” to determine whether, and how 
284

much, fissile material to produce. Such a “right” was 

entirely inconsistent with global security.129 As the 

Commission put it,

if the right to decide upon the number and size of such 

facilities and upon the size of the stockpiles of source 

material and nuclear fuel situated on their territory 

were left to nations, the control measures provided 

for in the [UNAEC’s] first report would not, if applied 

alone, eliminate the possibility of one nation or group 

of nations achieving potential military supremacy, or, 

through seizure, actual military supremacy.130

As the Commission envisioned it, the proposed international Authority would define what was “dangerous” within the scope of parameters set by the international convention establishing it.

What would be permitted to national governments 

was a policy decision to be made with an eye to the 

global security impact—in terms of nuclear weapons 

proliferation—of permitting access to any particular 

type of technology or nuclear capability.

“Dangerous activities or facilities are those which 

are of military significance in the production of atomic 

weapons. The word “dangerous” is used in the sense 

of “potentially dangerous to world security.” In determining from time to time what are dangerous activities and dangerous facilities, the international agency shall comply with the provisions of the treaty or 

convention which will provide that the agency shall 

take into account the quantity and quality of materials in each case, the possibility of diversion, the ease 

with which the materials can be used or converted to 

produce atomic weapons, the total supply and distribution of such materials in existence, the design and 

operating characteristics of the facilities involved, the 
285

ease with which these facilities may be altered, possible combinations with other facilities, scientific and 

technical advances which have been made, and the 

degree to which the agency has achieved security in 

the control of atomic energy.”131

As had the U.S. officials that were promoting the 

Baruch Plan, the UNAEC understood that this essentially policy question was also one that could change 

over time.

The dividing line between dangerous and non-dangerous activities will change from time to time. Many 

factors will be involved, and these factors will vary 

from one installation to another.132

The bottom line, however, was that the UN recommended that proliferation impact—and the closely related criterion of safeguardability—be made the keys 

to determining what technology can and should be 

permitted to national governments.

Thinkers of the period were painfully aware of 

what we might today call the problem of the latent or 

virtual nuclear weapons programs afforded by possession of nuclear fuel-making capabilities. As U.S. 

Secretary of State Dean Acheson put it, the true measure of atomic armament available to a country was to 

be found less in what it actually had put into a bomb 

than in the amount of fissionable material which has 

been produced and is currently being produced there. 

It was the essence of the U.S. and UN approach, therefore, to ensure that “no nation would be permitted 

to possess the means with which weapons could be 

made”—namely, fuel-production technology.133

This approach, it was recognized, would not be 

without cost. The UNAEC recognized that there was 

“conflict between the requirements of security and 
286

those of large-scale development and use of atomic 

energy for peaceful purposes.” Security measures, 

for instance, might retard the development of nuclear 

energy, while the production and stockpiling of nuclear fuel—however useful that might be for reactor 

operation—“would hardly be consistent with security.” Nevertheless, at least for the foreseeable future, 

the Commission stressed that “[i]n regard to the specific proposal for future production and stockpiling 

of nuclear fuels, it appears that at the present time 

policy should be dictated primarily by security considerations.”134 Where peaceful uses appeared inconsistent with preventing proliferation, in other words, 

security considerations must be paramount: sharing 

the benefits of nuclear technology was important, but 

not more important than preventing nuclear weapons 

development.

According to the Commission, the international 

Authority should “make every effort to widen the 

activities involving nuclear fuels and key substances 

permitted to nations, as conditions warrant,” and should 

“be guided by the general principle that nuclear fuel 

is intended for beneficial use.” Nevertheless, “[d]angerous facilities shall be provided for nations only as 

world conditions of security warrant and where economic justification exists.”135 Significantly, moreover, 

these two conditions were described as both being 

necessary: to be permissible, such technology access 

had to be both consistent with security—i.e., nonproliferation, to use the modern term—and economically 

justified. Meeting merely one of these criteria was insufficient.

It Was Not About “Rights”—And It Could Not Be. 

As had also been the case for the Acheson-Lilienthal 

Report and the Baruch Plan, the UN proposals were 
287

the antithesis of a “rights”-based approach to technology access. Indeed, the key protagonists in developing these U.N. proposals flatly rejected the idea that 

this was or could be an issue of state “rights.” The potential implications of nuclear weapons development 

were too dire to permit this to be a matter of national 

government discretion. In order to prevent, as it were, 

a weapons proliferation tragedy of the commons,136

making any specific technology access a matter of right 

was out of the question. As Canada, China, France, the 

United Kingdom (UK), and the United States put it in 

their joint statement of October 1949,

The development and use of atomic energy even for 

peaceful purposes are not exclusively matters of domestic concern of individual nations, but rather have 

predominantly international implications and repercussions.

The development of atomic energy must be made an 

international cooperative enterprise in all its phases.137

As the UN Atomic Energy Commission saw it, preventing unrestricted national technology access rights 

was the only way to “bring the benefits of atomic energy to all nations, and at the same time ensure reasonable security against atomic war and, particularly 

provide a warning of any preparations for a surprise 

atomic war.”138 For benefits-sharing to be consistent 

with international peace and security, it had to be a 

policy-driven, not a rights-driven process.

The Soviet Counteroffensive: A “Right” to Chase 

the Bomb.

Majorities in the new UN organization supported 
288

the UNAEC plan, endorsing it, and for a number of 

years describing the Commission proposals as being 

the only sensible approach offered to the challenge of 

dealing with nuclear technology.139 Eager to acquire 

its own nuclear weapons, however, the Soviet Union 

mounted a fierce diplomatic campaign against it—a 

campaign striking, to 21st century eyes, for its similarities to the propaganda campaign undertaken by 

the Islamic Republic of Iran against U.S.-led efforts to 

impose nonproliferation-driven limits upon nuclear 

technology sharing.

Then secretly working to develop their own atomic 

weapons as rapidly as possible, the Soviets professed 

outrage at the UN plan for nuclear energy control. Developing themes that would be enthusiastically resurrected by the clerical regime in Tehran when confronted years later with international outrage over Iran’s 

analogous nuclear efforts, and with American efforts 

to limit the spread of enrichment and reprocessing 

technology, the Soviets attacked the UN plan for being affront to national sovereign rights. The proposals were, they said, an American plot to monopolize 

control of nuclear energy—in effect, a conspiracy of 

the nuclear “haves” against the nuclear “have nots.”

According to then-Ambassador Andrei Gromyko, 

for instance, the UN plan was “directed against the independence of other States,” and was designed “to secure the monopoly position of one country [the United 

States] in the field of atomic energy.” Denouncing the 

inevitability of “one-sided decisions” by the Authority, Gromyko declared that the Union of Soviet Socialist Republics (USSR) would refuse to allow “the fate 

of its national economy to be handed over to this organ.”140 Foreign Minister Andrei Vyshinsky similarly 

denounced “the notorious Acheson-Baruch-Lilienthal 
289

plan” as being “no more than a mockery of international control” which would function as “an American 

control organ.”141 Moscow’s U.N. Ambassador, Jacob 

Malik, echoed that the UN proposals were a plan not 

for international control but for national monopolization: a plot whereby “the United States monopolistic 

big capital” would somehow come to “own all atomic 

energy-producing plants and all raw material extracted throughout the world.”142

As a diplomatic counter-punch, Moscow advanced 

its own competing plan for the control of nuclear energy. This plan would not have restricted nations’ ability to pursue activities the UNAEC had described as 

“dangerous” (e.g., producing fissile material), instead 

opting to place its reliance entirely upon periodic143

inspections by an international organ that reported to 

the UN Security Council. As this subordination to the 

Council indicated, of course, the Soviet plan would 

also have made action against violations subject to a 

UN Security Council vote, with the natural opportunity for a veto by any permanent member (e.g., the 

Soviet Union).144

Moreover, in yet another parallel to modern-day 

diplomatic offensives by Iran—a country that has itself 

benefited from being thus far subject to enforcement 

action only by international organs largely hamstrung 

by consensus or veto procedures (i.e., the IAEA Board 

of Governors and the UN Security Council)—the Soviets stressed the importance of technology-sharing to 

empower “have-nots,” emphasized the need to consider the unrestricted pursuit of nuclear technology 

as a legal right, and wrapped all these issues together 

with a strong emphasis upon the need of existing 

nuclear weapons possessors (i.e., the United States) to 

disarm before any progress could be made. Moscow’s 
290

proposals to the UNAEC, for example, declared that 

a control plan could only be agreed if nuclear weapons were prohibited first145—and that all signatories to 

such a weapons prohibition convention “must have a 

right to carry on unrestricted scientific research activities in the field of atomic energy.”146

Within 2 years of first making these proposals, 

the Soviets detonated their first atomic bomb.147 With 

the benefit of hindsight, therefore, Moscow’s pursuit 

of unrestricted nuclear technology-access rights for 

ostensibly peaceful purposes is revealed as the dangerous fraud that it really was. Its outrageousness lies 

not in the fact merely that the Soviet proposals were 

incompatible with the UN plan for nuclear energy control. More fundamentally, those proposals were offered in order to subvert that plan, and to make the 

prevention of nuclear weapons proliferation—and indeed the world’s nuclear disarmament, as envisioned 

in the Acheson-Lilienthal Report and the Baruch 

framework—quite impossible. This is a lesson that 

modern-day policymakers should not forget.

Retreat Into Inspection-Driven Safeguards.

In the face of the Soviets’ diplomatic counteroffensive—and after 1949, Moscow’s own possession 

of atomic weaponry—the UN plan stagnated, and was 

eventually abandoned. By 1953, President Eisenhower 

had obviously given up on the grand American idea of 

entirely removing “dangerous” applications of nuclear 

energy from national hands. This was not to say that 

Washington had given up on the idea of preserving 

international peace and security as much as possible 

against the threat of nuclear warfare by working 

to prevent the further spread of nuclear weapons 
291

capabilities, of course: that effort continues to the 

present day. The United States, however, reluctantly 

fell away from the dream of international control, and 

eventually into support for a decidedly second-best 

regime of inspection-driven safeguards, upon at least 

some nuclear technologies, under a new IAEA.

In his famous Atoms for Peace speech to the UN, 

Eisenhower observed that while at one time the 

United States had enjoyed a monopoly upon nuclear 

technology, “the knowledge now possessed by several 

nations will eventually be shared by others—possibly 

all others.”148 To help make the best of what therefore 

must clearly seemed to be—in light of his country’s 

previous analyses and proposals—a rather bad 

situation, he proposed the creation of the IAEA, and 

urged the governments “principally involved, to the 

extent permitted by elementary prudence, to begin 

now and continue to make joint contributions from 

their stockpiles of normal uranium and fissionable 

materials” to the Agency under safeguards to be 

devised against surprise seizure by countries in which 

such materials were being stored or used.149

Secretary of State Acheson had reemphasized in 

1952 that “no system of inspection alone, be it periodic 

or continuous, can insure the effective prohibition of 

atomic weapons,”150 and in 1954 U.S. representatives 

were still promoting proposals at the UN that would 

have involved the creation of a UN Disarmament 

and Atomic Development Authority responsible, 

inter alia, for “for the control of atomic energy to the 

extent necessary to ensure effective prohibition of 

nuclear weapons and use of nuclear materials for 

peaceful purposes only.”151 (These 1954 proposals still 

envisioned an Authority itself possessing the power to 

suspend the supply of nuclear materials to a violator 
292

state, and to close down plants utilizing nuclear 

materials there.152) Nevertheless, ambitious Baruch-era 

thinking was clearly falling by the wayside.

The Disarmament Nexus.

One of the casualties of the collapse of these early efforts to come to grips with controlling access to 

intrinsically dangerous nuclear technologies was 

arguably any hope of containing the emerging and 

accelerating nuclear arms race between the United 

States and the Soviet Union, let alone of achieving 

genuine nuclear disarmament. Because fuel-making 

capabilities were inherently dual-use in nature—and 

thus were, according to Acheson-Lilienthal reasoning, 

fundamentally unsafeguardable by any IAEA-style 

inspection-based regime—and because there no longer existed any chance of removing such capabilities 

from at least some nations’ hands, nuclear disarmament was coming to seem quite out of the question. 

What possessor country, after all, would bind itself to 

forego nuclear weapons if its neighbors’ compliance 

with such a prohibition could not be assured? This 

connection between control of nations’ access to fissile 

material production capabilities and the prospects for 

disarmament is one that we forget at our peril in 21stcentury debates over NPT Article IV issues.

By the mid-1950s, at any rate, both Cold War adversaries—and the Western allies, for that matter—seem 

to have come to think in similarly pessimistic terms 

about the problems of controlling nuclear technology. 

With the only safeguards now available being the inspection of nationally-owned and -controlled nuclear 

facilities, U.S. authorities evinced increasing skepticism that the actual elimination of nuclear weapons 
293

capabilities could be achieved any more effectively 

than the acquisition of such capabilities could be precluded for anyone having access to an intrinsically 

dangerous technology such as fuel making. President 

Eisenhower said that the United States would be happy to reduce armaments in conjunction with other nations if an effective verification mechanism could be 

found, but he added pointedly that “[w]e have not as 

yet been able to discover any scientific or other inspection method which would make certain of the elimination of nuclear weapons.”153

Notwithstanding their eagerness to score rhetorical points against the United States for being too reluctant—on account of the numerical superiority of the 

Warsaw Pact in Central Europe154—to abandon nuclear weapons, even the Soviets now seemed largely to 

agree. Soviet representatives described the challenge 

of nuclear technology control as being “particularly 

difficult,” noting that “[t]his danger is inherent in the 

very nature of atomic production.” Echoing earlier 

American pronouncements in the Acheson-Lilienthal 

Report and the Baruch Plan, as well as the conclusions 

of the UN Atomic Energy Commission, the Soviets 

now conceded that

production of atomic energy for peaceful purposes 

can be used for the accumulation of stocks of explosive atomic materials, and moreover, in ever greater 

quantities. This means that States having establishments for the production of atomic energy can accumulate, in violation of the relevant agreements, large 

quantities of explosive materials for the production of 

atomic weapons. The danger of this state of affairs becomes still more apparent if account is taken of the fact 

that, where the corresponding quantities of explosive 

atomic materials exist, production of actual atomic 

and hydrogen bombs is technically fully feasible and 
294

can be effected on a large scale.155

Accordingly, there would exist “possibilities beyond the reach of international control for evading 

this control and for organizing the clandestine manufacture of atomic and hydrogen weapons,” even if 

there were “a formal agreement on international control.” In such a situation, Moscow now warned, the 

security of States Party to a nuclear control treaty 

“cannot be guaranteed, since the possibility would be 

open to a potential aggressor to accumulate stocks of 

atomic and hydrogen weapons for a surprise attack 

on peace-loving States.”156 Arguments that had earlier 

been used by the West in favor of international control 

of nuclear energy, however, were now marshaled, in 

effect, to demonstrate the futility of treaty constraints.

The harm done to the cause of disarmament by 

failing to control weapons-facilitating nuclear technology soon became a major theme of the Eisenhower 

Administration’s approach to UN disarmament discussions. The international community’s failure to 

sufficiently assume control over access to the sort of 

intrinsically dangerous technologies identified in the 

Acheson-Lilienthal, Baruch, and UNAEC proposals, 

in other words, was dooming disarmament.

Citing the existence of a “barrier of science which 

prevents us at this moment, on the admission of the 

Soviet Union, the United States and every other delegation represented at this table, from making nuclear disarmament the safe hope for the world that we 

would wish it to be,”157 U.S. officials argued “[t]he 

present impossibility of establishing an effective inspection and control method that would completely 

account for nuclear weapons material.” This meant, 

they said, that it was not possible to account for all 
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nuclear weapons material, and that “the amount of 

unaccountability is of such magnitude as to be an unacceptable unknown quantity of vast destructive capacity.”158

According to British Foreign Secretary Harold 

MacMillan, the “difficulties which have arisen in connection with the control of nuclear weapons and the 

materials of which they are made” helped explain 

why disarmament proposals were stuck:

. . . [I]f we are in earnest about disarmament, we cannot go on admitting on the one hand that there are 

possibilities of evasion beyond international control, 

and proposing on the other hand the total abolition of 

nuclear weapons as our ultimate goal, but it would be 

misleading to pretend that it is a realizable goal in our 

present state of scientific knowledge. . . . I cannot agree 

on behalf of Her Majesty’s Government, and I would 

not expect other Governments to agree, to abolish all 

our nuclear weapons as long as there is no assurance 

that every other state is doing the same. . . . [T]hese 

thermo-nuclear weapons are now so deadly that the 

slightest margin of error or deception could be decisive for the fate of nations. The risks involved are quite 

unacceptable in present conditions. . . . [S]ome of the 

concepts of total nuclear disarmament which we have 

been using are quite out-off-date in the world as it is 

today and that we only mislead people by clinging to 

them.159

The United States, France, Canada, and the United 

Kingdom agreed, moreover, that it had by this point 

become essentially “impossible to account for past 

production of nuclear material” by states possessing 

fuel-making capabilities,160 which underlined MacMillan’s basic point. As the Americans described it, at 

least, Moscow’s decision to torpedo the Baruch Plan 

had therefore doomed mankind to a stalemate on nu-
296

clear disarmament and the specter of a nuclear arms 

race. According to a White House publication in October 1956, both of these ills “stemmed largely from 

the repeated rejections by the USSR of the Baruch proposals of 1946-47 for putting all atomic energy under 

international control.”161

After Eisenhower appointed Harold Stassen to 

serve as his new Special Assistant to the President 

for Disarmament, Stassen led an interagency review 

of these issues which reached the grim conclusion 

that—on account, inter alia, of these problems of nuclear technology control and “the extreme importance 

of providing against surprise attack”—the United 

States should not agree even to a moratorium on hydrogen bomb (thermonuclear weapon) testing. As 

U.S. Ambassador James Wadsworth later explained 

to the UN Disarmament Commission, “in the absence 

of agreement to eliminate or limit nuclear weapons 

under proper safeguards, continuation of testing is 

essential for our national defense and the security of 

the free world.”162 Given the pessimistic conclusions 

of so many participants about the effective safeguardability of the nuclear fuel cycle, Wadsworth’s qualification could easily be read as nothing less than an 

indictment even of the possibility of arms control and 

disarmament, now that more and more countries possessed the nuclear fuel cycle.

The United States subsequently retreated from 

such heights of skepticism, of course, supporting the 

establishment of the IAEA (as advocated by Eisenhower himself in 1953) and its development at the 

center of a global system of safeguards for the peaceful 

use of nuclear energy. Disarmament prospects fared 

less well during this period as the United States and 

Soviet Union built increasingly large arsenals and the 
297

UK (1952), France (1960), and China (1964) joined the 

nuclear weapons club. With regard to peaceful uses, 

however, the world was for a time content to make do 

with the inspection-driven regime of safeguards upon 

nationally-controlled peaceful nuclear activities.

Thinking about Technology Control.

Thus did the world end up gradually converging 

upon the institutionalized system of inspection-driven IAEA safeguards—a system which acquired additional legal import with the advent of the NPT, Article 

III of which required non-nuclear weapons states to 

accept IAEA safeguards “with a view to preventing 

diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.”163

Unfortunately, this was precisely the sort of regime 

that the Acheson-Lilienthal Report had warned would 

be entirely unable to preserve security in a world of 

widespread nuclear access to intrinsically dangerous 

capabilities such as fuel making. As Albert Wohlstetter once grumbled, in the wake of the Soviets’ rejection of the Baruch Plan,

we have come to rely on exactly the scheme regarded 

as unworkable by the authors of the Acheson-Lilienthal report and the Baruch Plan. We rely in essence 

only on accounting and inspection of dangerous activities in non-weapon states.164

The shift to inspection safeguards thus highlighted 

the importance of limiting access to such technologies—which, in turn, naturally necessitated not making their acquisition a matter of legal right.

President Eisenhower’s Atoms for Peace speech 

gave a bit of a window into how it was anticipated that 
298

such a system might operate. As recounted above, he 

envisioned “elementary prudence”—that is, nonproliferation policy—as governing the degree to which 

the IAEA should be entrusted with nuclear materials 

and technology for sharing, under strict safeguards, 

with governments receiving international cooperation 

in nuclear peaceful uses. The materials and technology 

that were to be shared would come from the countries 

principally involved in nuclear work. The system, in 

other words, was imagined to revolve around a finite number of supplier states with extensive nuclear 

know-how, which would feed as much knowledge 

and material as was prudent, in light of the obvious 

security risks, into an international cooperative network run under IAEA auspices and under a system of 

inspection-related safeguards.

For a while, this appears to have been felt satisfactory. Nevertheless, the problem of technology control 

always lurked in the wings. This problem—so pointedly outlined at the very outset of the nuclear age 

by the Acheson-Lilienthal Report—could largely be 

ignored during the IAEA’s first decades, because for 

many years it was apparently felt that is was unlikely 

that many (or indeed perhaps any) additional countries would acquire the full nuclear fuel cycle anyway, 

or perhaps that at least some aspects of the cycle were 

not actually too dangerous. When such assumptions 

ceased to hold, however, the problem of control reemerged with a vengeance, to form the core of today’s 

disputes over Article IV of the NPT.

U.S. Intelligence Views the Proliferation Threat. 

For some understanding of why it was felt acceptable for so long to rely upon IAEA inspections notwithstanding the problems long predicted with such 

an approach, it may be useful to examine how pro-
299

liferation security threats were perceived at the time. 

A good window into such perceptions can be found 

in declassified proliferation-related U.S. National Intelligence Estimates (NIEs) from the 1950s and 1960s, 

which have become available in recent years. Specific 

detailed conclusions based upon intelligence information cannot be expected to have influenced decisionmaking on proliferation and nuclear technology 

issues outside the then limited number of recipients 

of such classified documents. Nevertheless, the old 

NIEs do provide a valuable window upon broader 

understandings among the expert community at the 

time with regard to the type of activities that presented 

proliferation risks, and how the (very public) global 

spread of nuclear technology could affect the security 

environment.

Clearly, the U.S. intelligence community worried 

about proliferation threats. In 1957, for instance, an 

NIE warned that “up to 10 countries” could produce 

at least “a few nominal (20-40 kt) nuclear weapons 

using only native resources” within a decade (i.e., by 

1967) by means of exploiting “civilian atomic energy 

program[s] encompassing fairly large reactor and 

processing facilities” such as by producing weapons 

“clandestinely through concealed diversion of plutonium from inspected power plants.”165 In the wake of 

Eisenhower’s Atoms for Peace speech to the UN, the 

potential proliferation implications of the spread of 

nuclear energy seem to have been clearly understood. 

An NIE in 1958 warned that “[n]uclear know-how applicable to reactor technology is rapidly being spread 

throughout the world by national and international 

programs for the peaceful development of nuclear 

energy,” especially “dual-purpose reactors which 

generate both power for peaceful purposes and plu-
300

tonium.”166

Interestingly, however—as this phrasing about 

dual-purpose reactors suggested—the focus of this 

concern was mainly plutonium reprocessing, not uranium enrichment. As the 1957 NIE put it, “[n]uclear 

weapons could be produced clandestinely through 

concealed diversion of plutonium from inspected 

power plants.” To have a large and diverse nuclear 

weapons program would take “specialized facilities” 

such as “large plutonium producing reactor and isotope separation plants if U-235 is to be obtained.” But 

“particularly for production of U-235,” this was so difficult and expensive that only a few countries, it was 

felt, could “by themselves achieve such a program 

over the next decade.”167

The principal perceived weapons proliferation 

threat, it seemed, was thus related to plutonium, not 

uranium weapons. This point was underlined by the 

1958 NIE, which made the same basic points about 

how the main danger was expected to be plutonium, 

not U-235.168 Even France, clearly a likely potential 

weapon developer and a country rapidly building a 

relatively sophisticated nuclear infrastructure, was 

mainly only a plutonium threat in the near term.169

The lack of general access to fuel-making capabilities was apparently critical. A number of countries 

planned nuclear reactor programs—thus raising at 

least potential issues related to the diversion of plutonium chemically reprocessed out of such reactor fuel 

that they acquired—but they lacked the capability 

themselves to make uranium fuel. This enabled the 

supplier states to interpose proliferation-keyed restrictions that, it was felt, would allow nuclear power 

development on terms consistent with the maintenance of international peace and security.
301

According to the 1958 NIE, “[a]t present reactor 

fuels are available to have-not countries from major 

producers in the Free world only on terms intended 

to prevent diversion to weapon application.”170 Unless 

“present restrictions on the availability of fissionable 

materials for weapons application” were reduced171—

or unless would-be weapons-possessors received 

“foreign assistance with development of isotope separation facilities or weapons design information”172—

the risk was thus apparently felt to be a manageable 

one. To be sure, it was felt that

as world uranium production and commercial sales 

of power reactors expand, it appears likely that, in the 

absence of international controls, even a country without 

direct access to natural uranium will be able to acquire 

uranium and produce enough fissionable material to 

fabricate at least a few crude weapons.”173

Provided that a lid could be kept upon proliferationrisky technology sharing, however, the emerging 

nonproliferation regime was felt to be sustainable.

The assumptions behind such assessments, therefore, seemed to embody what we have seen as a safeguardability perspective. Plutonium reprocessing 

from reactor fuel was felt to be some danger, but the 

implication seemed to be that that proper safeguards 

could make this plutonium risk an acceptable one in 

light of the clear benefits that were perceived to exist from the development of electricity generation by 

nuclear reactors. There appears to have been for many 

years, as Albert Wohlstetter later put it, a widespread 

“belief that plutonium from a power reactor is not 

very dangerous.”174

Wohlstetter traced this assumption to a technical 

mistake: the early comment in the Acheson-Lilienthal 
302

Report that plutonium could be “denatured”—that is, 

made useless for weapons purposes—by leaving it in 

reactors long enough that its isotopic content of weapons-useful plutonium would become contaminated. 

As noted previously, the Report’s authors had misgivings about the denaturing solution even as early 

as 1946, and worried about the potential for “public 

misunderstanding of what denaturing is, and of the 

degree of safety that it could afford.”175 Nevertheless, 

even the re-released text at least sounded optimistic 

about denaturing.176 Though this initial hopefulness 

about denaturing as a solution was later discredited,177

the Acheson-Lilienthal Report’s treatment of the issue—in just the sort of public misunderstanding some 

had feared—encouraged the mistaken belief for many 

years that plutonium from spent reactor fuel could be 

made intrinsically “unusable or, at any rate, extremely 

ineffective when used in a nuclear explosive.”178

Confusion over denaturing led to a belief that reactor operation entailed low proliferation risks,179 and 

this in turn may have contributed to the relative equanimity with which analysts—as evidenced, for instance, in the NIEs—approached nuclear reactor promotion. Whatever the accuracy of assumptions made 

at the time about the fundamental safety of reactors, 

however, the key point for present purposes is that the 

policy community during the Atoms for Peace era clearly approached nuclear technology-sharing through the 

prism of proliferation risk: a classic safeguardability 

framework in which the challenges of nuclear technology control were approached through a weighing of 

proliferation risks and anticipated benefits.

As for the proliferation risks from uranium enrichment (as opposed to the separation of plutonium from 

reactor fuel), the same point holds, although the dan-
303

gers presented by that technology were apparently 

then considered manageable for different reasons. In 

practice, enrichment seems to have been felt to present little danger because the infrastructure costs of 

indigenously developing this capability were so high 

as to make it essentially unachievable by most countries anyway.180 According to one high-level panel of 

U.S. Government experts in 1964, uranium separation 

plants were so “expensive and difficult to operate” 

that this factor might in itself “deter some potential 

nuclear powers from considering U-235 for weapons 

use.”181 Its analysis of a number of “potential nuclear 

powers” concluded that while all were “in position 

to develop fission weapons from plutonium,” none 

was “likely to build gaseous diffusion plants for obtaining U-235 or to develop thermonuclear weapons, 

however, because of the high cost and technological 

complexity.”182

There was another factor that seems to have made 

U.S. officials more comfortable with the proliferation 

risks of Atoms for Peace: in the context of the intense 

Cold War nuclear rivalry between the United States 

and the Soviet Union, the highest priority was to prevent a newcomer’s acquisition of a nuclear arsenal 

capable of upsetting the balance of power between 

the superpowers by posing a direct military threat of 

crippling nuclear attack against the United States. In 

a global environment in which the two predominant 

players and competing alliance leaders each possessed 

extremely large and rapidly growing arsenals and 

faced a real risk of massive nuclear exchanges with 

each other, the prospect of some additional countries 

acquiring small, “entry-level” nuclear arsenals was 

felt to be a secondary concern. No one wished to see 

proliferation, but the real problem would only come if 
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someone else acquired a substantial nuclear capability. 

This was felt to allow the global security system, in effect, the ability to “absorb” at least some proliferation 

if it could not be prevented: the alarming degree of 

vertical proliferation, in other words, made the prospect of a bit of horizontal proliferation seem less shocking. Such conclusions made the proliferation risks of 

Atoms for Peace seem easier to bear.

This—to modern eyes—somewhat relaxed view of 

proliferation risks was by no means a secret. A number of senior U.S. officials told the U.S. Senate in the 

1950s, in effect, that while some governments might 

indeed be able to circumvent nuclear safeguards and 

develop a small nuclear arsenal, this was an acceptable risk because such a tiny stockpile would pale in 

significance alongside the superpowers’ nuclear holdings.183 UN Ambassador Harold Stassen told the UN 

in 1957, in fact, that the admitted risk of “relatively 

minor diversions for a few weapons” was manageable 

because “those few weapons would be restrained, 

canceled out, and deterred by the remaining capability in the hands of nations on various sides.”184 The 

United States sought to prevent nuclear weapons 

proliferation, but what Washington at that point really feared was a so-called knock-out blow of the sort 

only possible at the hands of a major nuclear weapons 

state; preventing the acquisition of a small arsenal by 

a newcomer was only a secondary priority.185

This perspective seems to have colored the U.S. approach to safeguards and Washington’s willingness to 

countenance proliferation risks in the dissemination 

of nuclear technology. U.S. officials understood that 

“[a]s the number of power and research nuclear reactors in a country increases, the potential for producing 

plutonium will increase.” Accordingly, it was eventu-
305

ally “likely that any country will be able to obtain reactors which could be used for plutonium production 

. . . [and] could theoretically acquire the technical ability to produce at least a few crude weapons.”186 Nevertheless, because such a few crude weapons would not 

upset the global balance of power, it was not necessary to take heroic prophylactic steps—with the result 

that Atoms for Peace could proceed notwithstanding 

its potential to lead to some proliferation. Officials’ devaluation of the systemic dangers presented by horizontal proliferation made Atoms for Peace seem more 

reasonable.

Such views are also reflected in declassified NIEs 

from the period. While U.S. intelligence did predict 

“a small increase in the number of countries having 

nuclear weapons,”187 it also estimated that during the 

next decade no one would be able to acquire “sufficient nuclear capabilities . . . to produce a change in 

the basic world power situation” because “[t]he U.S. 

and the USSR will still be so far ahead of all others [as] 

to dominate the scene without much question.”188

In strictly military terms, the nuclear proliferation 

likely to occur over the next 10 years will almost certainly not upset global power relationships. None of 

the prospective or potential nuclear powers will acquire capabilities which, if added to those of the U.S. 

or the USSR, would significantly affect East-West military relationships, or bulk large militarily as an independent force.189

Such proliferation-related geopolitical issuetriage—with its all but explicit conclusion that some 

proliferation need not be unduly troubling—may appear quite problematic to today’s eyes, and entirely 

untenable even on its own terms in today’s post-Cold 
306

War world of drastically reduced and still declining 

U.S. and Russian arsenals.190 Nor can we forget that 

some of the assumptions that underlay relatively 

optimistic assessments of the proliferation risks presented by nuclear technology—about the potential of 

denaturing to prevent the development of plutonium 

weapons from reactor fuel and the degree to which 

uranium enrichment technology would remain out 

of reach for would-be proliferators—clearly have not 

stood the test of time. We have already noted how the 

denaturing hopes raised by the Acheson-Lilienthal 

report proved illusory. No student of modern proliferation history, moreover, can ignore the degree to 

which the development of efficient, centrifuge-based 

uranium enrichment—and its widespread proliferation since the mid-1980s by Pakistani scientist A. Q. 

Khan—has upended the traditional assumption that 

“the uranium route” to a nuclear weapon is unachievable for all but the wealthiest and most sophisticated 

powers.191

Having the advantage of hindsight in viewing older and perhaps obsolete perspectives upon proliferation risk, however, should not obscure an important 

point: the nuclear technology-sharing enterprise of 

the 1950s and 1960s was grounded in a safeguardability perspective that evaluated risks and benefits rather 

than operating on the basis of any kind of technology 

rights. We may think today that they got their facts 

wrong—that is, that decisionmakers of the period 

were operating on the basis of faulty risk analyses—

but to concede this is not the same thing as to discredit 

the safeguardability principle that underlies past approaches. There is no indication that decisionmakers 

during this period felt that there existed any sort of 

hard right to nuclear technology independent of pro-
307

liferation risk. To the contrary, the Atoms for Peace 

era seems to have proceeded on the basis of quite the 

opposite assumption.

ARTICLE IV OF THE NPT

It is useful to understand this “back-story”—the 

conceptual prehistory, as it were, of the challenge of 

nuclear technology control that confronted the drafters of the NPT—if one is to make sense of Article IV 

itself. It helps explain both that provision’s actual text 

and the dynamics behind certain aspects of its negotiating history.

Paragraph 2: Technology Transfers.

For those interested in establishing the Treaty’s intended meaning, the language of the second paragraph 

of Article IV is the easiest to explain. To recap, Article 

IV(2) provides that all Parties

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.192

As hortatory language reflecting just the sort of generalized commitment to “benefit” sharing that is described in the NPT’s Preamble,193 Article IV(2) seems 

relatively straightforward.

The only reasonable reading of “the fullest possible 

exchange” is to take this phrasing as qualifying, rather 

than amplifying, language: it signals a limit rooted in 

real world practicalities (e.g., supplier cost, economic 

rationality, or proliferation risk) rather than any sort 

of requirement that technology transfers must con-
308

tinue until it is simply impossible to provide anything 

more. U.S. and other Western policy pronouncements 

are thus surely correct that the NPT does not actually 

require a technology-possessor to give any particular 

technology to any particular recipient.

A discretionary rather than mandatory reading 

of Article IV’s language on technology transfers is 

also the only interpretation consistent with the clear 

requirement in the first paragraph of Article IV that 

the right to develop and use nuclear energy must be 

conducted in conformity with the nonproliferation 

obligations in Articles I and II. If they are to conform 

their own conduct with Article I, for instance, nuclear 

weapons state possessors simply must have broad 

discretion in what to share, and cannot transfer technology to the extent that doing so is inconsistent with 

nonproliferation interests.

This reading is also consistent with long-standing 

themes of nuclear technology control policy—stressing benefit-sharing but acutely aware of the potential 

destabilizing effect that “peaceful” technology transfers could have in facilitating nuclear weapons development—that would have been quite well known 

to the U.S. and Soviet officials who coordinated the 

NPT’s drafting process. And indeed, the NPT’s negotiating history bears this out: the parties rejected repeated efforts to oblige technology possessors to transfer technology.

Mexico, for instance proposed to make it a “duty” 

for technology-possessors to “contribute, according to 

their ability,” in developing others’ peaceful nuclear 

applications.194 According to the Mexican ambassador,

it is essential to establish the legal obligations of the 

nuclear Powers . . . to contribute to the technological 

development of the others, and to transfer and place 
309

at the disposal of those countries their scientific and 

technological knowledge of the peaceful use of nuclear 

energy. We believe that the provision of such technical 

assistance should be made a legally-binding obligation. 

. . .195

Italy did not go quite so far, but nonetheless suggested new phrasing that would have specified an 

“inalienable right” to “obtain supplies of source and 

special fissionable materials intended for peaceful 

purposes.”196

For its part, Nigeria proposed provisions that 

would have required nuclear weapons states to host 

scientific delegations from nonweapons states so that 

the latter could “collaborate with their scientists working on nuclear explosive devices, in order to narrow 

the intellectual gap” between them.197 The repeated 

efforts made to specify that technology transfers must 

cover the full nuclear fuel cycle included a Spanish 

memorandum urging that the right of “participat[ing] 

as fully as possible in scientific and technical information for the peaceful uses of atomic energy” should 

be clarified in order “to refer specifically to the entire 

technology of reactors and fuels.”198 In the end, however, proposals to oblige fuel-cycle technology transfer were rejected.199

Certainly, the final form of Article IV left advocates of unrestricted technology sharing unhappy. 

Discussing the March 1968 treaty draft, for instance—

a version that already included the “inalienable right” 

and “fullest possible exchange” phrasings200—some 

countries complained that it failed to ensure transfers 

of the full range of scientific and technical information.201 In sum, the import of this negotiating history is 

clear, and it reinforces our conclusion about the highly 

qualified (“fullest possible”) language of Article IV. 
310

The NPT clearly does not require specific technology 

transfers.

Paragraph 1: The “Inalienable Right.”

Textual Opacity and Confusion. It is the first paragraph of Article IV—the one most frequently cited in 

today’s technology-access debates for its grand phrasing about an “inalienable right” to nuclear technology—that is the hardest to understand. States Party 

to the NPT, it says, have an “inalienable right . . . to 

develop, research, production and use of nuclear energy for peaceful purposes without discrimination 

and in conformity with Articles I and II.”202 More 

broadly phrased than Article IV(2), which deals with 

“cooperat[ion]” and the “exchange” of technological 

information between states—and thus with technology transfer—the first paragraph seems also to cover 

indigenous development, and is therefore potentially 

the more significant. “Even if you do have discretion 

in what you supply us,” one might imagine an Iranian representative arguing, “we have the ‘inalienable right’ under the NPT to seek, develop, and retain 

any capability we wish for peaceful purposes.” This 

paragraph is indeed at the core of today’s Article IV 

debates.

Let’s start at the end of the paragraph. It would 

seem clear enough that the phrasing in Article IV(1) 

about “conformity with Articles I and II” means that 

having signed the NPT, a nonweapon State Party no 

longer has any right, much less an inalienable one, to 

anything acquired or possessed in violation of these 

core nonproliferation obligations of the Treaty. Ironically, for all of Iran’s emphasis upon its Article IV 

rights, the spare words of the conformity requirement 
311

thus neatly dispose of Tehran’s recent arguments. 

Having acquired its enrichment infrastructure—and 

set off down the road to plutonium reprocessing as 

well, with the commencement of construction of its 

heavy-water plant and the heavy-water plutonium 

production reactor at Arak—using designs and seed 

technology from Khan’s smuggling network as part 

of a clandestine nuclear weapons program underway 

since the 1980s, Iran has not been in conformity with 

Article II and thus can claim no right to its fuel-cycle 

facilities.

Such an approach, however, raises as many questions as it answers. It is an interesting legal question, 

for instance, whether a country could “cure” its Article II noncompliance, and thus reacquire any right 

forfeited pursuant to the last 10 words of Article IV(1), 

merely by promising hereafter to use only for peaceful purposes what it had acquired in order to make 

nuclear weapons—or whether, instead, such ill-gotten 

gains must first be “disgorged” in the manner sometimes seen in civil litigation. (The legal doctrine of 

“unjust enrichment” might find relevance here, being both substantively appropriate and a marvelous 

double entendre to boot.) The former answer seems implausibly easy for any system at all concerned with 

preventing nuclear weapons proliferation, but even 

were such credulous leniency possible, Iran certainly 

has yet to persuade any serious observer that it has 

really turned over a new leaf.203

Nor should anyone interested in the legal meaning of these provisions forget that the conformity language of Article IV(1) refers not merely to Article II 

but also to Article I—that is, it would seem to impose 

qualifications upon the peaceful-use rights of the nuclear weapons states (the only ones subject to the provi-
312

sions of Article I) as well as those of nonpossessors. 

What does this mean? Could, say, China be said to 

have lost its right to engage even in peaceful nuclear 

pursuits if it had assisted, say, Pakistan or Iran with 

nuclear weapons development (e.g., by supplying the 

nuclear weapons designs that Khan later provided to 

Libya and perhaps others, or by providing Iran’s first 

uranium hexafluoride centrifuge feedstock)?

No matter who the violator might happen to be, 

what does it mean that the right referred to in Article 

IV is an inalienable one? Technically, this could mean 

no more than that one’s peaceful use rights cannot be 

sold or transferred to another party, but it is hardly 

clear what this would actually add to the effective 

meaning of Article IV. (Was such transfer considered 

in any way a danger?) Another possibility is that inalienable essentially does not mean anything in particular—that is, that it was simply “color language” 

designed to serve the political purpose of emphasizing that the drafters thought that the right somehow 

to take advantage of nuclear know-how for peaceful 

purposes was a very important one.

Iran and its apologists sometimes seem to suggest 

that inalienability means that nothing can abridge the 

right to use any nuclear technology for peaceful purposes, but this is untenable as a matter of statutory 

interpretation because it would erase the conformity 

requirement so carefully included alongside the inalienable right phrasing. Nor would inalienability 

seem to impose any obstacle, in principle, to a forfeiture-implying reading of the conformity qualifications 

of Article IV(1). After all, history’s most famous invocation of inalienable rights—the reference to “Life, 

Liberty, and the Pursuit of Happiness” in the U.S. 

Declaration of Independence—has never been taken 
313

to mean that someone’s right to liberty, for instance, 

cannot be infringed upon (e.g., by imprisonment) as 

the result of a sufficiently serious instance of lawbreaking.204

It is thus not surprising, for instance, that the committee drafting the NPT rejected Romania’s suggestion that the right described in what became Article 

IV be declared an “absolute right.”205 It could not be 

truly absolute, for—as Wohlstetter would later phrase 

things—this was a nonproliferation treaty, not a nuclear 

development treaty. As the Mexican ambassador to 

the committee drafting the NPT noted, it “could not 

be otherwise” than that peaceful use rights were qualified by the requirements of nonproliferation. Explaining his country’s proposal for the inclusion of a peaceful use provision in the NPT that had been modeled 

on the approach taken in the Treaty for the Prohibition 

of Nuclear Weapons in Latin America (a.k.a. Treaty 

of Tlatelolco), the Mexican representative made clear 

that it was essential to limit peaceful use rights to 

those who were in compliance with nonproliferation 

rules. This

reconciles the comprehensive and absolute prohibition of nuclear weapons, without any exception or 

reservation, with the rights of States members . . . to 

peaceful use of the atom for their economic and social 

development. Both principles—that of the prohibition and that of the use—are embodied in the Treaty. 

However, whereas the prohibition . . . is absolute and 

unconditional, the use—and this could not be otherwise—is subject . . . to the condition that it may not 

involve a violation or breach of that unrestricted prohibition.206

This was to be no less true for the NPT than it had been 

for Tlatelolco. That a limitation of the inalienable right 
314

was intended is therefore clear, and absolutist Iranian 

interpretations of inalienability are self-evident nonsense. Despite this understanding about what inalienable does not mean, however—or perhaps partly as a 

result of it—the specific legal import (if any) of the 

word remains, at the least, a question mark.

As a matter of treaty interpretation, the various issues raised by the text of Article IV are thus not easily or even necessarily coherently resolved. (This is 

true, furthermore, even without getting into vexing 

questions about Who decides? that are made especially 

pointed if Article IV is supposed to refer to hard technology rights that might be turned intermittently on 

or off according to their would-be possessor’s conformity with nonproliferation rules.)

Then, of course, there are questions pertaining to 

what Article IV does not say. Notably, for example, 

Article IV does not specify a requirement for conformity with Article III of the NPT, though this idea was 

endorsed by consensus at the 2000 NPT Review Conference. It would certainly seem reasonable to provide 

that non-nuclear weapons States Party to the Treaty 

may not enjoy the right to possess or use nuclear material or engage in nuclear activities, even for peaceful purposes, without applying nuclear safeguards as 

indeed they are required to do by Article III. Why was 

this not done, and what might the omission imply? 

Could a country be in violation of the NPT by refusing 

all safeguards upon its nuclear activities and yet shelter behind a right to continue these activities solely on 

grounds that its work was not connected to a weapons program (and thus not an Article II violation)? It 

would be odd, at the least, to read the NPT in that 

fashion, and even Iran—which endlessly trumpets its 

purported return to safeguards compliance when ar-
315

guing for its right to enrich uranium—does not seem 

to take such a view. But the text of Article IV provides 

little clue as to what we should think.

Most fundamentally, perhaps, the text of Article 

IV(1) is quite unhelpful in specifying what specific 

rights it might be thought protect in the first place. The 

right specified in that paragraph is the right “to develop, research, production and use of nuclear energy 

for peaceful purposes,” but what does this entail? This 

vague and questionably grammatical phrasing could 

equally plausibly support very different readings. 

Does Article IV(1) refer207 to a right merely to develop, 

research, produce, and use nuclear energy itself? Or 

does it say something further, about involvement with 

the underlying technologies that make such power 

production possible?

The former reading might not imply too much in 

terms of hard technology access privileges. (Perhaps 

the right to operate some kind of power reactor?208) If 

the latter reading were adopted, however, the argument 

for an ENR-privileging Iranian reading becomes somewhat stronger. But Article IV(1) does not make its meaning clear, and it certainly does not refer explicitly to the 

production of nuclear fuel—merely to that of “energy.” 

Its eloquence at signaling the importance of peaceful 

uses and the existence of some right to partake in peaceful exploitation of the atom is in no way matched by its 

clarity in describing what any of this actually means in 

practical terms. If one insists upon looking for a hard 

rights-based discourse in Article IV, this ambiguity 

might seem strange in a document the drafters of which 

clearly did know how to write clearly, in lawyers’ language, about obligation and prohibition.209
316

Negotiating History.

The negotiating history of Article IV (1) is not particularly helpful, but it may shed some light upon 

such conundra. There exist some statements in the record which suggest that the delegations participating 

in the NPT’s drafting—in Zarate’s words—“viewed 

nuclear fuel-making in a manner similar to nuclear 

explosives for peaceful purposes: that is, as potentially aiding and even constituting, the manufacture 

of nuclear weapons.”210 A British representative, for 

instance, stressed that “deal[ing] effectively with nuclear weapons” required “concentrating on the fissile 

material,” while a Swedish representative remarked 

in 1966 that prohibiting merely the final stage of the 

“manufacture” of nuclear weapons was insufficient.211

Building upon these insights, in fact, Burma’s delegate 

declared in 1966 that

[a]n undertaking on the part of the non-nuclear weapon Powers not to manufacture nuclear weapons would 

in effect mean forgoing the production of fissionable 

material . . . [because] such production is the first essential step for the manufacture of these weapons 

and constitutes and important dividing line between 

restraint from and pursuit of the nuclear[weapons] 

path.212

This is not necessarily to suggest, of course, that it 

was expected that Article IV would actually prohibit 

nuclear fuel making for non-nuclear weapons states. 

That fuel making was recognized as a somewhat proliferation-problematic technology, however, seems 

unmistakable. Perhaps for this reason, a Mexican proposal of 1966 to specify Parties’ right to use nuclear 

energy for peaceful purposes “in any manner”213 was 

not adopted.
317

In a sense, this is hardly surprising. In light of what 

we have seen of the long prehistory of the technology 

control problem—in which from the very dawn of the 

nuclear age nuclear fuel making was seen as “inherently dangerous” and as presenting special proliferation risks on account of the identity of its techniques 

and processes with what one would need to produce 

fissile material for nuclear weapons—it might in fact 

be more surprising had this point not arisen during the 

drafting of the NPT. To regard the drafters of Article 

IV as having suddenly conducted a complete volte-face

from such insights and long-standing concerns, by 

drafting Article IV(1) to give countries an affirmative 

right to engage in such activity, would have been remarkable indeed.

Perhaps it is simply the case that the drafters did 

not think it necessary to be clearer about the noninclusion of fuel manufacture within the Article IV(1) right 

because they shared the apparent assumptions we 

have seen among U.S. intelligence analysts and others 

of the period that the spread of fuel-making capabilities was unlikely to present too much of a proliferation 

problem—provided that technology transfers were 

controlled—because such a capability was financially 

and technically out of reach of almost all states anyway. Certainly, as we have seen, every proposal was 

rejected that attempted to ensure that transfers under 

Article IV(2) did cover fissile material production technology. If it were felt that without such transfers no 

new states would be able to develop such capabilities 

in the first place, closing the door to mandatory sharing and trusting in the discretion of the then-supplier 

states would have left scarcely any need to labor longer over specifying the parameters of Article IV(1)’s 

inalienable right. As long as it did not unquestionably 
318

include fuel-cycle capabilities, which they ensured that 

it did not, that might have been seen as enough.

Some Western observers have suggested that this 

may have been in fact precisely what happened. They 

include Australian nuclear safeguards authority John 

Carlson,214 but I have also argued the point. As I put it 

in a 2007 speech cleared by the U.S. interagency process,

[b]ack at the time the NPT was negotiated, enrichment 

technology was available to very few, not widely understood, and commonly treated as tightly-controlled 

national security information because of its utility in 

producing fissile material for weapons. Enrichment 

technology was not expected to be widely available, 

so it was easy to promote “Atoms for Peace” because 

peaceful nuclear cooperation was seen as largely 

building power reactors to be run on fuel produced by 

the few states that already had the technology.215

Former Clinton Administration official Rose Gottemoeller has written, too, that “[h]istorically, economic 

reasons have limited the number of states possessing 

the full range of fuel cycle activities.”216

A review of the negotiating history suggests little 

reason to believe that the drafters of the NPT ever 

expected technology possessors to share such things 

as uranium enrichment, or nonpossessors to get it if 

they did not. While some nonpossessors tried unsuccessfully to win agreement on participation rights that 

includes such technology, the delegations from technology possessor states who spoke favorably about international cooperative efforts seem generally to have 

had in mind only relatively innocuous technologies 

not directly related to nuclear weapons—e.g., nuclear 

reactors for electric power generation, or equipment 

related to agriculture, industry, seawater desalina-
319

tion, and fusion research—rather than such things as 

uranium production capabilities.217

One exception came with regard to fast-breeder 

reactors, the development of which, in West Germany 

and elsewhere, a 1967 U.S. State Department statement declared need not be impeded by the Treaty.218

(Here we may perhaps see an example of the confused 

optimism about plutonium safeguards decried by 

Wohlstetter and others in the wake of the AchesonLilienthal Report’s treatment of the denaturing issue.) 

Nevertheless, the point seems to hold with regard to 

uranium enrichment technology—the capability perhaps most at the center of today’s diplomatic-cumlegal disputes with Iran. It may simply not have been 

felt necessary to provide any real clarity in Article 

IV(1) as to the scope of the “inalienable right.”

A Reconciliation?

Clearly the temptation is great, in today’s diplomatic context, to read Article IV ambitiously—to rely 

upon it both as a sword with which to compel the granting of countries’ every wish for technology transfers, 

and as a shield with which to fend off efforts to limit 

access to capabilities that entail significant proliferation risks. Arguably, however, the best way to make 

both textual and substantive sense of Article IV—to 

sidestep and help explain the question-begging confusions and omissions of its phrasing, to lift the suggestive but all too opaque veil of its negotiating history, and to reconcile all of this with consistent themes 

running through the history of the international community’s pre-NPT struggle with these same issues of 

nuclear control—is to retreat from the assumption 

that Article IV is really about hard technology rights 
320

at all. Perhaps the secret to understanding its specific, 

concrete, and invariant legal import is that it really has 

no such import, and was not intended to.

Article IV undoubtedly embodies and articulates—

as the NPT’s Preamble makes quite explicit—a strong 

commitment to ensuring that the benefits of nuclear 

technology are shared as widely as possible. This has 

always been understood as one of the major goals of 

the Treaty, and has been a lodestar for international 

nuclear cooperative efforts at least since Eisenhower’s 

Atoms for Peace speech in 1953. In this author’s view, 

however, the most tenable way to read Article IV essentially stops there, without wading into the conceptual and jurisprudential quicksand of trying to tease 

concrete, per se legal requirements out of its tortured 

syntax.

It is probably a mistake, and likely to be fruitless, 

to search for any sort of “bright line rules” for technology control within the ambit of Article IV. It would be 

very hard, for instance, to maintain that the NPT simply prohibits the possession or proliferation of nuclear 

fuel-making capabilities. After all, it would have been 

easy simply to say this if such had been the intention, 

and the drafters were not entirely strangers to the art 

of clear writing. Furthermore, as we have seen, even 

the drafting committee’s co-chair, the United States, 

made clear in 1967 that the Treaty would not necessarily preclude even nonweapons states’ development of 

fast-breeder reactors.219 Nor, while it was clear enough 

that technology transfers would not be mandatory, was 

it established that they would necessarily exclude everything to do with fissile material production. (During the negotiations, moreover, Switzerland at one 

point spoke up to make the point—apparently without contradiction—that the Treaty would not outright 
321

prohibit “transfer[s]” of “enrichment of uranium, [or] 

extraction of plutonium from nuclear fuels, or manufacture of fuel elements or heavy water, when these 

processes are carried out for civil purposes.”220) Except 

for nuclear weapons themselves—and the obviously 

related case of “peaceful nuclear explosions,” which 

we will examine below—it would be hard to find a per 

se rule of technology exclusion in the NPT.

At the same time, however, it would seem that no 

per se rule of technology inclusion was intended either. 

The language of Article IV is quite notably ambiguous, and repeated efforts to make it more specific in 

just such ways were rejected, leaving nothing completely clear except that the drafters considered it very 

important to the scheme of the Treaty that—as the 

Preamble of the NPT nicely summarized—“the benefits of peaceful applications of nuclear technology ... 

should be available for peaceful purposes to all.”221 All 

seemed to share a genuine commitment to this principle, even as they declared their firm commitment 

to the overarching goal of the Treaty in preventing 

the further spread of what the Mexican ambassador 

called “these terrible weapons of mass destruction”222

and retained an acute awareness of the fact that the 

dual-use nature of much nuclear technology meant 

that more widespread possession of some capabilities 

necessarily involved proliferation risks.

An obvious way, and perhaps the only way, to 

reconcile these elements was, in effect, to follow the 

path blazed by the Acheson-Lilienthal Report, the Baruch Plan, and the UN Atomic Energy Commission 

in adopting a vision of nuclear technology control 

strongly committed to the sharing of benefits yet approaching specific questions of technology access on a 

case-by-case basis with an eye to whether or not poten-
322

tial proliferation risks could be adequately controlled. 

Article IV, in other words, may be nothing more (and 

nothing less) than a pragmatic effort to carve out, 

from an instrument otherwise much concerned with 

specific legal requirements, a space in which nuanced 

policy judgments could be utilized to surmount the 

seeming tension between nonproliferation and peaceful uses. Rather than reifying the idea of technology 

access rights, therefore, sophisticated readers of Article IV are better advised to understand it—ironically, despite its colorful invocation of an inalienable 

right—as a de-legalization of peaceful use issues and a 

return to the fountainhead of today’s international nuclear cooperation system: President Eisenhower’s call 

to use atoms for peace with an eye to the elementary 

prudence of nonproliferation.

Let me stress that this is not the only way to read 

Article IV. For the most part, it is possible to read it—or 

at least its first paragraph—as Iran and others contend. 

Both a more contextually-dependent, policy-privileging reading and an absolutist, rights privileging interpretation are therefore legally available, as it were. In 

my view, however, the former understanding is the 

better one, being less plagued by the confusing text 

of Article IV, less confounded by the complexity of its 

negotiating history, and less substantively surprising 

and indeed contradictory in light of the long history 

of how key players (and the UN itself) struggled with 

the challenge of technology control in the years leading up to the drafting of the Treaty.

Such an approach would also be consistent with 

the discussion in the Preamble of the importance of 

sharing the benefits that nuclear technology can bring. 

This language seems clearly to reference and build 

upon what we have already seen to be a long-stand-
323

ing international discourse of benefit sharing that 

goes back to the earliest days of the Baruch Plan and 

UNAEC deliberations. The central theme of this discourse was, in effect, that specific technology sharing 

issues should be dealt with on a case-by-case basis—

informed by proliferation risks—even as every effort 

is made to ensure that recipients benefit from nuclear 

applications even when they are themselves denied 

access to particular technologies. 

Indeed, U.S. documents at the time explicitly described Article IV as embodying the principle of benefit

sharing described in the Preamble. In an explanatory 

telegram sent to U.S. embassies and missions around 

the world, for instance, Article IV was described as a

specific elaboration of the principle, stated in the preamble, “that the benefits of peaceful applications of 

nuclear technology . . . should be available for peaceful purposes to all Parties, whether nuclear weapon or 

non-nuclear weapon states.”223

It would be at least somewhat strange to read Article 

IV’s specific elaboration of the principle of benefit 

sharing in such a way as to repudiate the reason it had 

long been felt necessary to speak in terms of sharing 

benefits—as opposed to sharing specific technologies—

in the first place.

This brings us to a final point. Perhaps most importantly, approaching peaceful use issues through 

the prism of benefits sharing within nonproliferation 

parameters is perhaps the only way to read Article IV 

that does not make that provision the enemy of the 

rest of the NPT. By contrast, a hard rights-reifying 

interpretation pits Article IV squarely against the 

overarching nonproliferation purpose of the Treaty. 

However egregious his behavior in helping shield 
324

Iran from suffering consequences for its noncompliance until he declared it too late to stop Tehran’s enrichment effort,224 IAEA Director General El Baradei is 

nonetheless quite right to warn darkly of the potential 

consequences of a looming world full of virtual nuclear weapons states. That looming world, however, 

is a natural consequence of strong technology-rights 

readings of Article IV.

Reading the NPT’s peaceful use provisions as being not about per se technology access rights but rather 

about the importance of exercising substantive policy 

judgment—that is, achieving a prudential balance between the benefits to be had from nuclear technology 

and the global security risks created by some means of 

achieving such sharing—thus seems like the best way 

to understand Article IV as part of the NPT as a whole, 

rather than just a cluster of phrases read in isolation. 

Such a reading may not be obligatory as a matter of 

statutory interpretation, but it certainly seems the wisest one.

A policy-privileging reading that sees the inalienable right of the NPT’s Article IV through the prism 

of nonproliferation requirements is also the one most 

consistent with broader notions of probity in treaty interpretation that counsel signatories’ fidelity to the object and purpose of a Treaty even in the period before 

their final ratification of an instrument.225 It is also most 

consistent with those maxims which counsel turning 

to supplementary means of interpretation (e.g., negotiating history) in cases where looking merely at the 

text itself might leave a provision’s meaning obscure 

or “lead to a result which is manifestly absurd or unreasonable.”226

Civil Law legal systems and some significant international conventions also often incorporate a doctrine 
325

of abuse of rights (abus de droit), whereby the law will 

be read so as not to give any right to engage in activity 

that will tend to imperil such rights and freedoms.227

As the principle was famously put in a 1961 judgment 

of the European Court of Human Rights,

no person may be able to take advantage of the provisions of the Convention [for the Protection of Human Rights and Fundamental Freedoms] to perform 

acts aimed at destroying the aforesaid rights and freedoms.228

Though I managed to persuade the U.S. Government to hint at the notion in cleared remarks given 

to the 2005 NPT Review Conference,229 abus de droit 

does not appear elsewhere to have been raised in an 

Article IV context. Nevertheless, the principle seems 

quite appropriate in Article IV discussions, where the 

danger is precisely that technology access rights purportedly recognized by the NPT’s Article IV could in 

practice undermine the entire Treaty. It would, at the 

very least, be a perplexing reading of Article IV of the 

Nuclear Nonproliferation Treaty that facilitates that 

provision’s use as a tool for weakening international 

protections against nuclear weapons proliferation.

The Case of Peaceful Nuclear Explosions.

Before we conclude, it is useful to mention the 

clearest case of the benefit sharing principle—and the 

way in which it did not necessarily entail sharing specific technologies—offered in the history of the NPT: 

the curious case of “peaceful nuclear explosions.” As 

early as 1949, Soviet authorities had apparently begun professing interest in using nuclear explosions 

for “such peaceful purposes as moving mountains, ir-
326

rigating deserts, and clearing jungles.”230 (At least as 

late as 1964, the Soviets still entertained ideas about 

“the removal of overburden from mineral deposits 

and the creation of waterways and harbors by means 

of nuclear detonation.”231) Early on, U.S. officials ridiculed this idea, plausibly inferring that it was merely a 

cover for nuclear weapons ambitions. As one U.S. representative observed, after all, “if nations have devices 

in their possession which can level mountains, they 

also have in their possession devices which can level 

cities.”232 Nevertheless, the idea of “peaceful nuclear 

explosions” (PNEs) did not go away so easily.

During the course of the NPT’s negotiations, in 

fact, countries as diverse as Brazil, Switzerland, India, and Nigeria all suggested that PNE technology 

should be made available to all countries under the 

aegis of peaceful nuclear cooperation.233 In late 1967, 

for instance, Brazil proposed amending Article IV to 

provide an inalienable right that “include[d] nuclear 

explosive devices for civil uses.”234 Brazil tried again 

in February 1968.235

Giving access to the specific technology necessary 

to conduct PNEs, however, was entirely indistinguishable from sharing nuclear weapons technology, 

and was thus regarded by many other participants as 

being entirely out of the question within the ambit of a 

treaty devoted to the nonproliferation of nuclear weapons. Significantly, this did not result in an outright rejection of the idea of PNEs, but rather an acceptance of the 

importance of giving access to any benefits that could be 

derived from such explosions, yet emphatically without 

giving access to the technology. PNEs thus present, in 

effect, the classic example of the benefit-sharing principle as a way of serving the cause of peaceful nuclear 

uses and the cause of nonproliferation.236
327

The solution was to make clear that while PNEs 

were permissible and theoretically available to all Parties, only their benefits would be shared, with the technology itself remaining under NWS control.237 As the 

United States explained this approach,

any benefits which may emerge from the development 

of peaceful nuclear explosive devices should be made 

available to the world. As for the actual use of these 

devices, the United States has said that this service 

ought to be performed by the nuclear-weapon powers 

without discrimination for the non-nuclear-weapon 

powers.238

According to the representative of Mexico, the country that had itself first proposed the basic language 

that became Article IV, this solution to the PNE problem—namely, distinguishing between sharing benefits 

and necessarily sharing technologies—flowed naturally from “the spirit which pervades the Treaty and 

is expressed in the Preamble.” In the event of a conflict between specific peaceful applications of nuclear 

technology and nonproliferation, he made it clear that 

one must give priority to nonproliferation. His explanation of this key insight—given here in the context of 

the PNE debate, but of obvious broader significance—

is worth quoting in detail:

. . . [I]f unfortunately it were necessary to choose 

between the manufacture of nuclear devices which, 

though intended for peaceful purposes, were basically 

identical with nuclear weapons, and the renunciation 

of all nuclear explosions as the only means of avoiding the proliferation of those terrible weapons of mass 

destruction, the spirit which pervades the Treaty and 

is expressed in the Preamble clearly indicates which 

of those two alternatives would be chosen . . .. [That 

choice is] a solution which precludes the spread of 
328

nuclear weapons and at the same time ensures that the 

States which . . . do not possess them are not deprived 

of the immense benefits which their economic development might derive from the use of nuclear explosions for peaceful purposes.”239

This is a discourse not of technology-access rights 

but of rights to benefits from technology, the specific 

modalities of which must be assessed on the basis proliferation impact. In the end, Article V of the NPT embodied this approach quite clearly: the benefits of PNEs 

would be made available to all, but the technological 

capability to conduct such explosions would be permitted to no additional countries whatsoever.240

CONCLUSION: SAFEGUARDABILITY, REAL 

BENEFIT, AND TECHNOLOGY ACCESS

The preceding pages have argued that while a 

rights-privileging approach to technology access under the peaceful use provisions of the NPT and a more 

flexible and prudential policy-privileging interpretation are both legally available alternatives, the latter 

reading is by far the better one. At a minimum, the 

Treaty in no way requires a fixation upon per se technology access as the right described in Article IV. 

Eschewing the reification of technology access rights 

that seems to be becoming today’s Article IV conventional wisdom, moreover, would return harmony to 

the fundamental scheme of the NPT, preventing that 

provision from actually undermining the instrument 

of which we must presume it was intended to be a 

constructive and coherent component. In fact, abandoning today’s legally unnecessary and substantively 

dangerous rights-fetishism would open the door to 

what might end up being some very wise and prin-
329

cipled public policymaking, in response to the challenges of reconciling the legal and substantive imperatives of nonproliferation with the international 

community’s long-standing commitment to sharing 

the benefits of nuclear technology.

Delegalizing the peaceful use issue—that is, carving out conceptual space in which the operation of 

policy judgment can and should be employed—would 

have significant implications for how technology 

sharing issues are approached within the NPT regime. 

Specifically, it suggests at least two important areas 

for further research and analysis.

Safeguardability.

First, much more attention must be given to the 

effective safeguardability of specific nuclear technologies and capabilities. This is the logical consequence of 

a policy-privileging approach to Article IV. To assess 

whether a particular type of technology may appropriately be shared with, or should be possessed by, 

nonweapons states—or whether, instead, it is only the 

benefits of this technology that should be shared—it is 

necessary to know what proliferation risks it would 

actually entail. As the example of peaceful nuclear explosions demonstrates, some technologies may not be 

safely left in the hands of non-nuclear weapons states 

at all. The principle of benefit sharing referenced in 

the NPT’s Preamble—and of which Article IV itself 

is an embodiment—is designed to accommodate this 

possibility, allowing for the de facto prohibition of nonweapons state possession of such a technology as long 

as possessors help make its benefits available in the alternative.

This approach, however, puts a premium upon 
330

having a deep understanding of proliferation risks 

and safeguards possibilities, for it is the interplay between these two factors that will determine whether 

any particular capability—or, in the alternative, merely its benefits—may be shared with or possessed by 

non-nuclear weapons states. Such assessments will 

be, of course, judgment calls. As illustrated by the old 

assumption that denaturing would make widespread 

plutonium handling relatively safe, furthermore, 

judgments made at one time can later be understood 

as faulty. An answer that makes sense today may require revision tomorrow. We might, for example, discover certain capabilities to be more dangerous than 

once supposed, or be pleasantly surprised to learn 

that we had previously overestimated certain risks. Or 

perhaps we will simply devise cleverer ways of managing what seems today to be a danger so great as to 

preclude safe non-weapons state access to a particular 

technology.241

The contextuality—and hence impermanence—of 

technology-access judgments under the benefit-sharing framework of the NPT, however, is in fact more of 

a strength than a weakness, for it allows mistakes to 

be corrected, understandings to be improved, innovations to be incorporated, and a complex and changeable world to be accommodated without shattering 

the Treaty regime. It may be true that we do not in 

fact know what hindsight will reveal to be the best answer. Nonetheless, this sort of not knowing is no excuse 

to avoid making the wisest decisions we can on the 

basis of the best information available to us today. We 

should embrace this, for it is the essence of responsible 

public policymaking.

Because of its potentially dramatic implications 

with respect to technology access, exercising such 
331

judgment responsibly requires that we pay attention 

to the growing chorus of critiques of IAEA safeguards 

capabilities. This is particularly the case with regard 

to questions concerning the Agency’s ability to adequately monitor bulk-handling facilities and largescale enrichment operations, where even small error 

margins can quickly produce material accountancy 

uncertainties sufficient to mask the disappearance of 

quite notable quantities of fissile material. We should 

worry about criticisms that the figures used by the 

IAEA to define a “significant quantity” (SQ) of fissile material (i.e., the amount that one would need to 

manufacture a nuclear weapon) are much too high, 

and that the IAEA’s benchmark conversion times for 

turning such material into a weapon—on the basis of 

which IAEA safeguards procedures and inspection 

periodicity are in large part determined—are therefore 

too long.242 We should be more than slightly concerned 

not merely that only 89 states have thus far adopted 

the IAEA Additional Protocol that the Agency deems 

necessary to help detect undeclared nuclear activities, 

but indeed that the IAEA itself believes this Protocol to 

provide insufficient inspector authority in the face of 

denial and deception by the host government.

243

Exercising our judgment responsibly also requires 

that we pay much more attention to matters such 

as the challenge of timely warning within the IAEA 

safeguards framework. Because it is obviously more 

important to prevent the diversion of material or technology into nuclear weapons than simply to document 

a proliferator’s Treaty-violative fait accompli, the idea 

of timely warning is quite fundamental to the concept 

of nuclear safeguards. The IAEA’s model for comprehensive safeguards agreements makes clear that:
332

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.244

Timeliness, however, is not a purely technical issue. 

It has long been recognized that keeping civilian 

and military applications of nuclear energy separate 

means

more than simply detecting a violation of an agreement. It means early detection of the approach by a 

government toward the making of a bomb in time for 

other governments to do something about it.245

This understanding of timeliness has long been the 

position of the U.S. Government. As we have seen, the 

Acheson-Lilienthal Report made clear that such timely warning was essential to any workable nonproliferation system: safeguards must provide danger signals that “flash early enough to leave time adequate 

to permit other nations—alone or in concert—to take 

appropriate action.”246 This view of timely warning 

has been recently reaffirmed. However unhelpful it 

may have been with regard to the precise meaning of 

Article IV, the U.S. State Department’s reply to the Article IV query from Congressman Lantos nonetheless 

stressed “the need to ensure timely warning of diversion to non-peaceful purposes sufficient to permit an 

effective response.”247 Timeliness, therefore, has long 

been understood with an eye not simply to the specific 

conversion time required for a particular SQ of fissile 

material, but also to the time it would take for the international community to respond to the violation detected.

Needless to say, this makes the already demand-
333

ing business of nuclear safeguards even more problematic. How much advance warning is, in fact, timely 

enough to permit a response to a violation? If one is 

to judge by the remarkable sloth of the IAEA Board 

of Governors in reporting Iran’s safeguards noncompliance to the UN Security Council only 3 years after 

it was discovered248—despite such reporting being a 

requirement of the IAEA’s own Statute249—genuine 

timeliness would seem, to put it mildly, rather hard 

to achieve.

Such worries are important under a policy-privileging peaceful use framework of benefits-sharing—

and contemporary critiques deserve careful study to 

determine whether they do indeed indicate significant 

flaws in the safeguards framework—because of their 

potential implications for what technologies can safely be shared with, or possessed by, nonweapon states 

within the NPT regime. Some observers have already 

begun to draw grim conclusions. NPEC’s Sokolski, for 

instance, argues that

not all nuclear activities can be safeguarded—that 

the IAEA cannot detect military diversion from some 

facilities (like nuclear fuel plants) early and reliably 

enough to assure we can stop or deter them before any 

bombs are made250

Such critiques of IAEA safeguards, if warranted, could 

cut powerfully against technology-sharing, particularly with regard to ENR technology on the grounds 

that its possession can, in effect, allow states to proceed “to the very brink of acquiring nuclear arms—so 

that the final dash can be completed in a matter of . . 

. days.”251 As Roberta Wohlstetter pointed out many 

years ago in her insightful assessment of the implications of India’s misuse of Atoms for Peace cooperation 
334

in order to develop the nuclear device it tested in 1974,

a government can, without overtly proclaiming that it 

is going to make bombs (and while it says and possibly even means the opposite), undertake a succession 

of programs that progressively reduce the amount of 

time needed to make nuclear explosives, when and if 

it decides on that course. This can be done consciously 

or unconsciously, with a fixed purpose of actually exploding a device or deferring that decision until later. 

But it is more than holding out the option. It involves 

steady progress toward a nuclear explosive.252

In India, this “process of drifting toward a bomb”253

occurred largely outside the IAEA system and the 

NPT. The existence of safeguards and Article II obligations, however, may not offer much protection against 

such drift—especially if no clear or detectable specific 

decision is made to develop nuclear weapons until 

late in the process.

Because even a country with the purest of motives can change its mind, moreover—and indeed, because acquiring the capability makes such a change of 

course toward nuclear weapons easier, quicker, and 

less risky254—the nonproliferation regime cannot rely 

entirely upon safeguards even if they are effective in 

providing timely warning of diversion during such 

time as they are applied. Recognizing that there was 

ultimately no way to prevent a host country’s seizure 

even of internationally-owned and—controlled facilities located in its territory, the Acheson-Lilienthal Report advocated locating such nuclear plants according 

to strategic criteria, apparently in the hope that host 

governments would be deterred from appropriating 

them by the likelihood that rival nations would quickly follow suit by seizing (and presumably diverting to 

weapons uses) nuclear facilities located in their own 
335

respective territories.255

If the powerful Atomic Development Authority 

envisioned by the Report and the Baruch Plan was expected so nervously to contemplate the risk of seizure, 

how much less secure must the IAEA feel in a world in 

which all nuclear facilities are nationally owned and 

Agency inspectors work only at the pleasure of host 

governments? It is, after all, hardly difficult to simply 

expel IAEA inspectors as North Korea did in December 2002, en route to its nuclear test of October 2006. 

The international community might hope to deter such 

steps—at least if it can improve its currently woeful 

record of steadfastness against NPT and safeguards 

noncompliance—but there seems very little chance 

flatly to preclude them as a matter of safeguards methodology or design.

This is one reason why the idea of safeguardability 

as the touchstone of Article IV analysis has such significance. If IAEA safeguards are indeed as problematic as alleged in some modern critiques, one might be 

compelled to conclude, with Sokolski, that

nuclear fuel-making activities cannot be considered 

‘peaceful’ unless they are conducted in states that 

already have nuclear weapons. At the very least, it 

suggests that spreading fuel-making activities to new 

nonweapons states would be contrary to the NPT.256

Viewed through the prism of such safeguards critiques, in other words, the authors of the Acheson-Lilienthal Report—with their emphatic dismissal of the 

possibility that a safeguards system could ever make 

nationally-controlled nuclear facilities genuinely safe 

from a proliferation perspective—could end up having the last laugh.

This is not the place to assess the merits of current 
336

safeguards critiques based upon materials accountancy, significant quantity estimates, presumed conversion times, timely warning, and inspector authorities 

in the face of determined denial and deception. The 

questions that have been raised, however, underscore 

the importance of making safeguards adequacy a subject for much more serious study and attention. The 

stakes are enormously high.

Real Benefits.

Another question raised by the benefit-sharing approach to NPT peaceful use issues is precisely what it 

means for a particular technology to be of benefit or to 

have a benefit worthy (or capable) of being shared at 

all. After all, for there to be any intelligible weighing 

of proliferation risk against the benefits offered by a 

particular technology—not to mention any coherent 

way of understanding how to provide such benefits 

to others without sharing that technology in the event 

that the proliferation risk proves unacceptable—there 

has to be at least some benefit in the offing in the first 

place.

If no real benefit is offered by a particular technology, in other words, it is not worth even having a discussion about whether any proliferation risk should 

be borne in its pursuit. Not even the smallest proliferation risk could possibly be justified by something 

that provides no benefit.

Having demonstrable benefits to offer is in no way 

dispositive with regard to the propriety of technology 

sharing. A judgment that a particular technology cannot or will not be properly safeguarded, for instance, 

could make even a very valuable application prohibitively costly from the standpoint of global security. At 
337

least with respect to technology transfers, however, a 

showing of real benefit is presumably necessary to open 

the policy debate, even if this is not sufficient to decide 

the issue: without demonstrable benefit, there is no 

case to plead in the court of safeguardability. (This is 

not to say that indigenous technology development efforts should be prohibited if they cannot make any coherent showing of benefit. A nonbeneficial technology 

that presents no proliferation risks would surely be 

permitted, for countries presumably retain the right 

to squander scarce resources upon otherwise harmless flights of fancy if they wish to do so. Economic 

irrationality may be quite relevant when drawing 

inferences about the intentions underlying an indigenous development program for purposes of Article 

II compliance analysis, but should not be regarded as 

dispositive in this regard. A safeguardability interpretation of Article IV would insist merely that neither 

transfer nor indigenous development be permitted to 

non-nuclear weapons states where this would entail 

significant proliferation risks.)

But what constitutes a demonstrable benefit? One 

would imagine that the benefit is relatively clear if the 

question at issue is the use of radioactive isotopes to 

sterilize disease-carrying tse-tse flies, or the production of isotopes in a research reactor to support medical oncology. Moreover, how is one to evaluate claims 

of real benefit in the context of a claim upon nuclear 

fuel-making capabilities, or even nuclear electricity 

generation itself? It takes nuclear technology of some 

sort to generate cancer-curing isotopes, but there are 

often a number of possible ways to acquire electric 

power. Does the availability of alternatives matter? Or 

their relative merits or efficiencies?

One presumably should not simply assume the 
338

genuineness of benefit just because it is asserted.257

That is a lesson we should perhaps learn from the odd 

history of the “peaceful nuclear explosions” concept. 

Some delegations to the NPT’s drafting committee appear to have believed that PNEs would really be valuable excavating tools. After some considerable trouble 

was taken to allow for the possibility of providing PNE 

benefits to nonweapons states, however, it turned out 

that no one really wanted such services. (Whatever 

legitimate interest in PNEs may once have existed, it 

was apparently quickly overtaken by economic rationality and public health considerations. Alternatively, 

the entire issue was nothing more than a pretext for 

would-be proliferators all along—as indeed is suggested by India’s disingenuous claim of peaceful intentions when it detonated its first nuclear weapon 

in 1974.) With PNEs, transfer of the basic technology 

itself was flatly prohibited by the NPT, and even the 

benefits of PNE services ultimately ended up being 

withheld, because their advantages turned out to be 

illusory. It is quite doubtful that any nuclear weapons state would today provide such NPT-authorized 

services even if someone could figure out a reason to 

request them, but in fact no one wants such services 

anyway, because their irrationality is now well-understood.

Especially in light of the PNE experience, it thus 

seems reasonable, in assessing the merits of particular technology and/or benefit-sharing proposals, to 

consider the degree to which they make demonstrable economic sense. Particularly if a claimant wishes 

the nonproliferation regime to accept any potential 

increase in proliferation risk—even a small one—it 

ought to be possible to show that there is a real need 

for the thing being sought. Judging need simply by 
339

the presence of a mere desire for what is requested 

should be insufficient. (Therein lies tautology: the issue would not have arisen if there were no desire. If 

requests are not simply to be rubber-stamped—which 

would represent the betrayal of policy judgment, 

rather than its exercise—something more objectively 

defensible must be required.) This presumably rules 

out requests grounded merely in

the rhetorical identification of investments in civilian nuclear energy with economic development and 

catching up with the advanced countries . . . with no 

pretense at hard economic argument.258

Arguably, therefore, claimants should be expected to 

show that they have a real economic need for whatever it is they seek by way of international nuclear 

cooperation.

This idea of economic rationality as a criterion 

with which to evaluate technology sharing requests 

and as a partial basis for inferences about purpose is 

by no means entirely foreign to the NPT’s contemporary peaceful use discourse. The U.S. working paper 

on Article IV at the 2005 NPT Review Conference, for 

example, emphasized that any nuclear fuel cycle facility being acquired by a non-weapons state “should 

conform to and be fully consistent with the scale of 

that country’s nuclear programme as measured by international standards and economic factors.”259 Coming at this issue from the other side, U.S. arms control 

compliance assessment experts also view a nuclear 

program’s economic irrationality as being one of the 

factors that can help suggest the likelihood of that 

program being intended to support nuclear weapons 

work in violation of Article II of the NPT. The “lack of 

a reasonable economic justification for this program” 
340

was explicitly noted in the long U.S. list of factors contributing to its first explicit Iranian noncompliance 

finding in 2005.260

The principle of necessary benefit has long antecedents. It was presaged in the early UN proposals 

to keep fuel production to the absolute minimum 

required for “actual beneficial uses” and to give access 

to safe forms of nuclear technology only, inter alia, 

“where economic justification exists.”261 The AchesonLilienthal Report itself actually suggested the idea of 

using market mechanisms to help allocate nondangerous nuclear facilities—that is, ones that could safely be 

left in national hands—in a fashion designed to ensure 

both that they were responsive to real needs and that 

nuclear applications were not inefficiently utilized visà-vis other energy sources. The Report’s idea was to 

permit and support the development of safe peaceful 

nuclear capabilities “on the basis of competitive bidding among interested nations.” Such bids, the Report 

said, could be limited

to those warranted by the costs of alternative sources. 

. . . In this way the maximum usefulness of fissionable materials with the greatest conservation of other 

sources of power would be secured.262

The Report was quite clear that its authors believed 

“mankind can confidently look forward to beneficial uses” of nuclear energy.263 Particularly in light of 

modern debates about the relative merits of various 

energy sources, however—sources which are competing both for market share and for the attentions 

of governments eager to maximize energy security 

and speed the development of non-fossil fuel sources 

while yet struggling in a time of economic hardship 

with the imperative of efficient resource-allocation—
341

the Report’s notion of competitive cross-sectoral bidding is an idea that may deserve to be dusted off and 

given a second look.

In fact, it has been a requirement of U.S. law 

for many years, embodied in Title V of the Nuclear 

Nonproliferation Act of 1978, that the United States 

will work to assist developing nations in developing 

non-nuclear energy sources, and that, to this end, it 

should undertake “general and country-specific assessments” of the energy alternatives available to such 

countries.264 Promoting non-nuclear energy sources is 

not necessarily the same thing as discouraging nuclear 

ones, of course. Nevertheless, especially in the context 

of a statute the aim of which is to ensure “more effective international controls over the transfer and use of 

nuclear materials and equipment and nuclear technology for peaceful purposes in order to prevent proliferation,”265 Title V is certainly consistent with the idea 

that nuclear energy proposals should be undertaken 

only when they compare favorably to available nonnuclear alternatives.266

Nor is the United States alone in providing precedent for assessing nuclear technology issues through 

the prism of demonstrable economic benefit. Indeed, 

France has been even more explicit about the importance of tying nuclear technology-access issues to some 

notion of real benefit. A French working paper in 2005, 

for instance, specified that technology exports “should 

only be envisaged” where, among other things, there 

existed “an economically rational plan for developing 

such projects.”267 A working paper jointly presented 

by eight nations in 2008 as part of the preparatory process for the 2010 Review Conference also declared that 

international nuclear cooperation plans must “reflect 

economic reality and the real needs of recipient coun-
342

tries.”268

Private sector experts addressing how to square 

the NPT’s peaceful use provisions with its nonproliferation purposes have sometimes stated this point 

quite clearly. Many advocates of what I have termed 

the safeguardability approach to Article IV issues, in 

fact, have long argued the need to tie technology access to demonstrable benefit. Albert Wohlstetter, for 

example, suggested that in order to “mak[e] sensible 

trade-offs,” a peaceful use policy consistent with the 

nonproliferation purposes of the NPT would also 

need to consider “distinctions . . . between optimal 

economic alternatives and the next best use of resources.”269 Eldon Greenberg argued similarly that 

technology transfers should be judged in part according to whether there existed “reasonably discernable 

civilian nuclear power benefits,”270 warning that many 

long-standing past assumptions about the benefits of 

nuclear power generation “have . . . largely proven to 

be false.” Taking aim, as had Wohlstetter, at the notion of sharing plutonium reprocessing technology—a 

significant issue at the time—Greenberg declared that

[i]n such circumstances, the Treaty should not be 

interpreted as creating an obligation to facilitate or 

a right to participate in reprocessing and plutonium 

use. To the contrary, it is more appropriate to view 

the Treaty as creating the presumption today that assistance or activities relating thereto have more to do 

with weapons than with peaceful purposes and, therefore, generally would fall within the prohibitions of 

Articles I and II.271

Similarly, Leonard Weiss argued the impermissibility of transferring fissile material production capabilities not only “because such technology cannot 

be effectively safeguarded” but also because it “ex-
343

hibits no compelling economic need anywhere in the 

world.”272 Henry Sokolski has also argued for more 

honest cost comparisons between nuclear power and 

its alternatives, suggesting that such projects should 

be notionally competed against each other in order to 

help identify projects that are uneconomical and dangerous.273

The merits of the specific economic case many of 

these safeguardability authors marshaled against plutonium recycling and the merits of the argument made 

by some today against uranium enrichment, or even 

against nuclear power in toto, are far beyond the scope 

of this chapter. Also unaddressed here will be the 

merits of long-standing assumptions—from the time 

of the Acheson-Lilienthal Report through the Atoms 

for Peace era and into the present day—that nuclear 

power does offer significant benefit to the developing 

world. The key point, however, is that advocates of 

policy-privileging safeguardability approaches to Article IV have long suggested, in effect, that it would be 

incoherent and untenable to judge proliferation risk 

against nuclear technology benefits without bringing 

into the analysis a relatively rigorous and intellectually defensible standard for assessing such benefit.

If this is so—and the idea is certainly plausible, not 

precluded by text of Article IV, and consistent both 

with the NPT’s own Preamble and with long-standing 

themes in the international community’s struggle with 

peaceful nuclear use issues—a requirement of demonstrable economic need could have significant implications for today’s fuel cycle debates. As Gottemoeller 

and Arnaudo recount, for example,

[a]ccording to traditional calculations, acquiring the 

full fuel cycle—the indigenous capability to enrich 

fissile material to produce nuclear fuel, to generate 
344

electricity using that fuel in reactors, and to reprocess 

or store the spent fuel—only made sense with a large 

nuclear energy program. A country would have to be 

generating more than 25,000 megawatts of electricity 

in nuclear reactors—equivalent to about 15 currentgeneration, light water reactors—before it made economic sense to acquire the full fuel cycle.274

In this light, it would seem that “some of those rushing to acquire new capabilities have down played 

the question of the costs and risks of the full nuclear 

fuel cycle” to the point that they “do not appear to be 

making rational economic choices.”275 This author is 

presently in no position to assess in any useful detail 

the relative merits of any particular country’s claim to 

need a nuclear power infrastructure, but a case can be 

made for some such assessment.

To be sure, it must be admitted that rejecting the 

simplistic, technology-focused, rights-privileging 

pseudo-literalism of today’s Article IV conventional 

wisdom in favor of a more sophisticated, policyprivileging, benefits-sharing approach to peaceful 

nuclear uses under the NPT would place significant 

demands upon policymakers. It would deny them the 

easy option of avoiding difficult decisions by retreating behind the judgment precluding absolutisms of 

legal rights and per se rules. It would require them to 

work harder in understanding the issues of nuclear 

technology control that have challenged the international community since the beginning of the atomic 

era. It would require of them more wisdom in making 

difficult judgment calls, and oblige them to take positions for which others (and history) will hold them 

accountable. It would also deprive policymakers, in 

some countries at least, of the easy rhetorical weapon 

of rights denial that they have so far happily wielded 
345

in service either of their legitimate technology-acquisition policies or in support of their illegitimate nuclear weapons ambitions. For all of these reasons—and 

no doubt more—a policy-privileging interpretation of 

Article IV may remain unpopular in many quarters.

Such reasons to oppose a safeguardability interpretation, however, are discreditable. If we wish our 

understanding of Article IV to make sense—and to be 

one consistent with, rather than an enemy of, the rest 

of the NPT—it will be necessary to adopt such a reading despite such complaints. Policymakers should not 

fear having to exercise wisdom and discretion, and 

they should not be permitted to avoid it.

ENDNOTES - CHAPTER 11

1. Treaty on the Non-Proliferation of Nuclear Weapons 

(opened for signature July 1, 1968; entered into force March 5, 

1970), 21 U.S.T. 483, 729 U.N.T.S. 161 (hereinafter NPT), from the 

Preamble.

2. Ibid., at Art. IV.

3. U.S. Special Representative for Nuclear Nonproliferation 

Christopher Ford, “The Promise and Responsibilities of Peaceful 

Uses of Nuclear Energy,” remarks to 19th Annual Conference on 

Disarmament Issues, Sapporo, Japan, 2007, available from www.

state.gov/t/isn/rls/rm/92721.htm.

4. Most notably, in recent years—and perhaps not by coincidence, largely since Iran’s secret uranium enrichment efforts first 

came to light in August 2002—a number of Middle East states 

have announced their intention to develop nuclear power programs, in some cases including uranium enrichment. See Rose 

Gottemoeller and Raymond Arnaudo, “Agreeing to Disagree on 

Nuclear Rights,” Bulletin of the Atomic Scientists, Vol. 64, No. 5,

November/December 2008, pp. 15, 17 (listing in this regard Bahrain, Jordan, Kuwait, Oman, Qatar, Saudi Arabia, United Arab 

Emirates, and Yemen).
346

5. See International Atomic Energy Agency, “Communication dated September 10, 2008, received from the Permanent Mission of Germany to the Agency regarding a ‘Statement on Civil 

Nuclear Cooperation with India,’” INFCIRC/734 (Corrected), 

September 19, 2008 (attaching copy of NSG decision of September 6, 2008), available from www.iaea.org/Publications/Documents/

Infcircs/2008/infcirc734c.pdf.

6. See Jason Mark, “Atomic Dreams,” UTNE Reader, January-February 2008, available from www.utne.com/2008-01-01/Environment/

Atomic-Dreams.aspx (noting “strains in the environmental movement as organizations and individuals grapple with the pros 

and cons of using nuclear power to check carbon emissions” and 

describing some prominent environmental figures as having recently voiced support for nuclear power for climate change reasons). 

7. Office of the Press Secretary, The White House, “President Announces New Measures to Counter the Threat of WMD,” 

Washington, DC: National Defense University, February 11, 2004 

(publicly revealing existence of Khan network). Or George W. 

Bush, “Remarks on Weapons of Mass Destruction,” Speech at 

the National Defense University, Washington, DC, February 11, 

2004.

8. U.S. Special Representative for Nuclear Nonproliferation 

Christopher Ford, “The NPT Review Process and the Future 

of the Nuclear Nonproliferation Regime,” remarks to the NPT 

Japan Seminar on “How should we respond to the challenges 

of maintaining and strengthening the treaty regime?” Vienna, 

Austria, February 6, 2007, available from www.state.gov/t/isn/rls/

rm/80156.htm.

9. IAEA Director General Mohammed El Baradei, “Addressing Verification Challenges,” remarks to the Symposium on International Safeguards, Vienna, Austria, October 16, 2006, quoted in Robert Zarate, “The NPT, IAEA Safeguards and Peaceful 

Nuclear Energy: An ‘Inalienable Right,’ but Precisely to What?” 

in Henry D. Sokolski, ed., Falling Behind: International Scrutiny of 

the Peaceful Atom, Carlisle, PA: Strategic Studies Institute, U.S. 

Army War College, February 2008, p. 221.
347

10. Ford, “The NPT Review Process and the Future of the 

Nuclear Nonproliferation Regime.” 

11. U.S. Special Representative for Nuclear Nonproliferation 

Christopher Ford, “The 2010 NPT Review Cycle So Far: A View 

from the United States of America,” remarks at Wilton Park, 

United Kingdom, December 20, 2007, available from www.state.

gov/t/isn/rls/rm/98382.htm.

12. Australia, Austria, Canada, Denmark, Hungary, Ireland, 

the Netherlands, New Zealand, Norway, and Sweden working 

paper entitled “Articles III(3) and IV, preambular paragraphs 6 

and 7, especially in their relationships to article III (1), (2) and (4) 

and preambular paragraphs 4 and 5 (Cooperation in the Peaceful 

Uses of Nuclear Energy),” NPT/CONF.2005/WP.11, April 26, 

2005, pp. 1-2.

13. European Union, working paper entitled “Multilateralization of the nuclear fuel cycle/guarantees of access to the peaceful 

uses of nuclear energy,” NPT/CONF.2010/pc.1/WP.61, May 9, 

2007, pp. 1, 3.

14. It should be noted, in this context, that even apart from the 

political adequacy of existing fuel supply proposals in the face of 

radicalized non-aligned sentiment and the occasional country’s 

nuclear weapons ambitions, some experts have questioned the technical and market feasibility of a multilateralized nuclear fuel cycle. 

Writing elsewhere in this volume, for instance, the World Nuclear 

Association’s Steve Kidd offers such a critique. See also www.

npecweb.org/Frameset.asp?PageType=Single&PDFFile=20090306-

Kidd-NuclearFuelMythsAndRealities&PDFFolder=Essays.

15. See NPT, at Art. IX(3) (“For the purposes of this Treaty, 

a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior 

to 1 January 1967.”) and Art. II (requiring that each non-nuclearweapon State Party not receive, manufacture, or otherwise acquire “nuclear weapons or other nuclear explosive devices”).

16. People’s Republic of China, “Peaceful Uses of Nuclear 

Energy,” NPT/CONF.2005/WP.6, April 26, 2005, pp. 1-2.
348

17. Cuba, “Peaceful uses of nuclear energy,” NPT/

CONF.2005/WP.25, May 4, 2005, p. 1, para. 6, and p. 2, para. 7.

18. U.S. officials publicly raised NPT compliance concerns 

about Iran at least as early as 1993, at which point the Arms 

Control and Disarmament Agency declared that “Iran has demonstrated a continuing interest in nuclear weapons and related 

technology that causes the U.S. to assess that Iran is in the early 

stages of developing a nuclear weapons program.” U.S. Arms 

Control and Disarmament Agency, “Adherence to and Compliance With Arms Control Agreements and the President’s Report 

to Congress on Soviet Noncompliance with Arms Control Agreements,” January 14, 1993 [unclassified version], p. 17.

19. Etel Solingen, Nuclear Logics: Contrasting Paths in East Asia 

and the Middle East, Princeton, NJ: Princeton University Press, 

2007, p. 171.

20. See, e.g., Nuclear Threat Initiative, “Russia: Nuclear Exports to Iran: Reactors” (undated), at text accompanying notes 2 

and 4, and following note 14, citing David Albright et al., Plutonium and Highly Enriched Uranium 1996: World Inventories, Capabilities, and Policies, Oxford, UK: Oxford University Press, 1997, 

pp. 355-361; Andrew Koch and Jenette Wolf, “Iran’s Nuclear Procurement Program,” Nonproliferation Review, No. 5, Fall 1997, p. 

127), available from www.nti.org/db/nisprofs/russia/exports/rusiran/

react.htm.

21. See International Atomic Energy Agency, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of 

Iran,” GOV/2004/83, November 15, 2004, at pp. 8, 13, 14, 23, 31, 

71, 73, and 79.

22. Ambassador of the Islamic Republic of Iran Ali Reza 

Moaiyeri, remarks to the Second Session of the Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty 

on the Non-Proliferation of Nuclear Weapons, Geneva, Switzerland, April 29, 2008, p. 4, para. 4.

23. Iranian President Mahmoud Ahmadinejad, “Iran, Nuclear Power,” interview by Christiane Amanpour, CNN, New York, 

September 17, 2005, available from www.cnn.com/2005/WORLD/
349

meast/09/17/ahmadinejad/index.html.

24. Iranian Delegation, “Statement to the Preparatory Committee of the NPT 2010 Review Conference,” New York, May 12, 

2009, as cited in Fars News Agency, “Iran Blasts Industrial States’ 

Non-Compliance with NPT,” May 13, 2009. Iran’s legalized discourse on Article IV has developed within a broader tradition 

of modern Iran’s predilection to “scour the international arena 

for examples and models” and to rely, to a sometimes startling 

degree, upon emulation of Western models even when emphatically decrying Western influence. (Ali Ansari, for instance, has 

described the “imitative quality of Iranian society and politics” 

as having manifested itself particularly in the ideological framework of the Islamic Revolution, not least in the rise to political 

power of the radicalized “principalist” clique surrounding President Ahmadinejad. See Ali M. Ansari, Iran Under Ahmadinejad: 

The Politics of Confrontation, Adelphi Paper 393, London, UK: International Institute of Strategic Studies (IISS), 2007, pp. 19-20; 

Laurent Muraviec, The Mind of Jihad, Cambridge, UK: Cambridge 

University Press, 2008, pp. 256-294. Iran’s legalistic propaganda 

campaign in favor of its Article IV rights—offered in reaction to 

criticism of Tehran’s own compliance with IAEA safeguards and 

Articles II and III of the NPT—may be located within this imitative tradition, right down to the Iranians’ unimaginative mimicry 

and inversion of sometime American arguments about the centrality of nuclear nonproliferation to the Nuclear Nonproliferation Treaty.

25. NPT, at Art. IV(1) describing “inalienable right” to activities “in conformity with Articles I and II of this Treaty.”

26. “Iran Blasts Industrial States’ Non-Compliance with 

NPT.”

27. Henry Sokolski, “Nuclear Policy and the Presidential 

Election,” The New Atlantis, No. 21, Summer 2008, pp. 3, 10.

28. “President Announces New Measures to Counter the 

Threat of WMD.”

29. See Energy Secretary Samuel Bodman, “Press Briefing,” 

U.S. Department of Energy, Washington, DC, February 6, 2006, 
350

available from www.energy.gov/news/3171.htm. By contrast, some 

current and former U.S. officials appear simply to counsel capitulation. Former Clinton Administration official Rose Gottemoeller 

and (apparently current) State Department lawyer Raymond 

Arnaudo have publicly argued for “a companion agreement to 

the NPT that is specifically designed to reinforce states’ rights to 

acquire peaceful nuclear energy technologies, including the full 

nuclear fuel cycle.” This agreement would “restate these rights in 

international law,” while attempting to limit the potential proliferation damage of such a step merely by “reassuring states that 

they do not have to exercise [these rights] immediately.” Gottemoeller & Arnaudo, pp. 18.

30. Christopher A. Ford, “A New Paradigm: Shattering Obsolete Thinking on Arms Control and Nonproliferation,” Arms 

Control Today, Vol. 38, November 2008, pp. 12, 16.

31. Christopher A. Ford, “NPT Article IV: Peaceful Uses of 

Nuclear Energy,”Washington, DC: U.S. Department of State, 

May 18, 2005, available from merlin.ndu.edu/archivepor/wmd/

state/46604.pdf.

32. See Bureau of International Security and Nonproliferation, Promoting Expanded and Responsible Peaceful Uses of Nuclear 

Energy, Washington, DC: U.S. Department of State, April 16, 

2007, available from www.state.gov/t/isn/rls/other/83210.htm (denouncing as “false” the allegation by some countries that “any 

steps by other states to deny them any technology somehow violates their ‘inalienable’ rights or their rights under the NPT”). See 

also Ford, “NPT Article IV: Peaceful Uses of Nuclear Energy,” 

declaring that “[n]othing could be further from the truth” than 

the claim by some countries that “steps by other states to deny 

them some technology somehow violates their NPT rights.”

33. Ford, “NPT Article IV: Peaceful Uses of Nuclear Energy.”

34. United States of America, “Strengthening Implementation of Article IV of the Treaty on the Non-Proliferation of Nuclear Weapons,” NPT/CONF.2005/WP.57, May 23, 2005, pp. 3, 14.

35. Ibid., describing Article IV as giving the “right to receive 

the benefits of peaceful nuclear development” if they are in com-
351

pliance with NPT nonproliferation obligations” (emphasis added); Ford, “NPT Article IV: Peaceful Uses of Nuclear Energy,” 

(“Paragraph 2 of Article IV speaks of . . . sharing in the development of applications of nuclear energy for peaceful purposes. Furthermore, the Preamble to the NPT affirms the general ‘principle 

that the benefits of peaceful applications of nuclear technology ... 

should be available for peaceful purposes to all Parties.’”) (emphasis in original).

36. John R. Bolton, “The NPT: A Crisis of Non-Compliance,” 

statement to the Third Session of the Preparatory Committee of 

the 2005 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, New York, April 27, 2004. Nor was this 

point entirely lost on the U.S. Congress, for in 2006 two Senators 

opined that “[t]he dangers are so great that the world community 

must declare that there is no right under the Nuclear Non-Proliferation Treaty to separate plutonium from spent nuclear fuel.” 

Senator Richard Lugar and Senator Evan Bayh, “A Nuclear Fuel 

Bank Advocated,” Chicago Tribute, October 22, 2006. In the House 

of Representatives, Ileana Ros-Lehtinen made a similar point. See

Representative Ileana Ros-Lehtinen, “The Right to Survive: Nuclear ‘Rights’ Don’t Trump It,” National Review Online, October 5, 

2007. The issue was also raised on the 2008 U.S. presidential campaign trail by Senator John McCain, the Republican candidate, 

who publicly called for the convening of an international summit 

in order to assess what the NPT’s peaceful nuclear use rights actually entail. See Sokolski, “Nuclear Policy and the Presidential 

Election,” p. 9. (The Democratic candidate, and eventual winner, 

Senator Barack Obama, appears not to have raised the issue.)

37. Office of Nuclear Energy, U.S. Department of Energy, 

Global Nuclear Energy Partnership Strategic Plan, GNEP 167312 

Rev. 0, January 2007, pp. 3, available from www.fas.org/programs/

ssp/_docs/GNEPStratPlanJan07.pdf. In the U.S. interagency process, this statement was cleared, on behalf of the State Department, by a mid-ranking official without checking with or informing the U.S. Special Representative for Nuclear Nonproliferation 

or apparently any higher authority at all.

38. House Foreign Affairs Committee Chairman Tom Lantos 

et al., letter to Condoleeza Rice, July 17, 2007, p. 1.
352

39. Assistant Secretary of State for Legislative Affairs Jeffrey 

Bergner, letter to Tom Lantos, November 19, 2007, p. 1.

40. The reason for the delay and the essential uselessness 

of the Bergner response was that the Bush administration was, 

at that point in its wilting second term, unable to reach internal 

agreement on the specific meaning of Article IV. One key State 

Department attorney assigned to cover nonproliferation issues 

in the Office of the Legal Advisor (“L”) in effect agreed with Iran 

(and the U.S. Department of Energy!) to the extent that he felt 

that Article IV described a preexisting right to develop enrichment and reprocessing. 

Such a position was unacceptable to this author, who thought 

it both legally permissible and substantively imperative to hew 

more closely to the U.S. policy positions already cleared through 

the U.S. interagency process and announced publicly in 2004 and 

2005. Despite those earlier public declarations, however, the “L” 

attorney refused to clear anything similar in the 2007 reply to 

Congressman Lantos. This created an impasse: “L” would accept nothing suggesting that there was no “right” to ENR, while 

I would accept nothing that said there was such a right. The result was presumably disappointing to all: the Bergner letter’s 

mere recapitulation of the vague text of Article IV. Thus did the 

State Department—despite having been publicly committed by 

the President to a policy of opposing the further spread of ENR, 

and having proclaimed at two official NPT meetings the non-existence of any Article IV ENR “right”—decline to conclude that 

U.S. policy did not violate the “rights” of countries such as Iran.

Interestingly, this was not the first time that “L” had blocked 

agreement upon a legal position made logically and legally inevitable by preexisting, interagency-cleared, and publicly announced conclusions related to Iran. The reader will recall that 

at least as early as 1993, the United States had found Iran to be 

seeking to develop nuclear weapons. It was not until more than 

a decade later, however—and after much resistance—that the 

same “L” attorney was finally persuaded to clear what should 

long since have been a rather common-sense follow-on conclusion that Iran was in violation of its Article II obligation not to 

try to develop nuclear weapons. Compare Adherence to and Compliance With Arms Control Agreements and the President’s Report to 

Congress on Soviet Noncompliance with Arms Control Agreements, 

January 14, 1993, p. 17 (“Iran is in the early stages of developing 
353

a nuclear weapons program”), with U.S. Department of State, Adherence to and Compliance With Arms Control, Nonproliferation, and 

Disarmament Agreements and Commitments, August 2005 (hereinafter 2005 Noncompliance Report), p. 80, available from www.state.

gov/documents/organization/52113.pdf (finding that “Iran is pursuing an effort to manufacture nuclear weapons, and has sought 

and received assistance in this effort in violation of Article II of the 

NPT”) (emphasis added).

41. President Barack Obama, remarks in Prague, Czech Republic, April 5, 2009, available from www.whitehouse.gov/the_press_

office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered/.

42. If one’s objective is merely to win acclaim for change, 

such a gap is no doubt useful. It is less clear that encouraging 

such dramatic misunderstandings will provide a useful foundation for nonproliferation policy.

43. France, “Strengthening the Nuclear Non-Proliferation Regime,” NPT/CONF.2005/PC.III/WP.22, May 4, 2004, p. 2, available from www.npec-web.org/Presentations/NonPaper040504%20

UN-%20France%20-%20NPT-%20English%20Version.pdf.

44. Ibid., p. 3 (emphasis added).

45. Ibid., pp. 3-4.

46. The substantive case is easier to make, of course. Even 

IAEA Director General Mohammed El Baradei—who otherwise 

seems to regard himself as having as his most important mission 

not reigning in noncompliance with the safeguards with which 

the international community has entrusted his agency but rather 

protecting Iran from the United States, See Elaine Sciolino and 

William J. Broad, “To Iran and Its Foes, An Indispensable Irritant,” New York Times, September 17, 2007, (quoting El Baradei 

that those who contemplate war against Iran are “crazies” and 

describing himself as having a mission as the “secular pope” 

whose job is to “make sure, frankly, that we do not end up killing 

each other”)—has warned about the dangers of a world of “virtual nuclear weapon states.” See Zarate, p. 221 (quoting El Baradei). The generally agreed worrisomeness of a world in which 

many countries could quickly produce nuclear weapons at will 
354

is presumably why opponents of efforts to stop the spread of 

ENR technology have preferred to emphasize ostensibly policytrumping claims of an inalienable Article IV peaceful use right.

47. Albert Wohlstetter, et al. [as Pan Heuristics], “Moving Toward Life in a Nuclear Armed Crowd?” paper prepared for the 

U.S. Arms Control and Disarmament Agency, ACDA/PAB-263 

PH76-04-389-14, December 4, 1975 (Revised April 22, 1976), p. 2.

48. Ibid., p. 58.

49. Ibid., pp. 58, 62.

50. Ibid., p. 62.

51. Wohlstetter, et al. , p. 17; see also ibid., p. 18 (declaring that 

“These paths of approach towards a weapons capability . . . do 

not break any precise, generally agreed on rules.”).

52. Ibid., p. 19.

53. Ibid., pp. 48-54.

54. Among other problems, Wohlstetter noted that “[a]mbiguities as to what is safe and what is dangerous” make for tremendous compliance enforcement problems in the real world of 

international politics. See ibid., pp. 5-58.

55. Ibid., pp. 47-48.

56. Ibid., pp. 66-72, 95.

57. Ibid., p. 89 (“If our primary objective is to impede nuclear 

weapon development, all civilian nuclear activities are not equally desirable.”).

58. Eldon V. C. Greenberg, “The NPT and Plutonium: Application of NPT Prohibitions to ‘Civilian’ Nuclear Equipment, 

Technology and Materials Associated with Reprocessing and 

Plutonium Use,” Washington, DC: Nuclear Control Institute, 

1993, pp. 13-14 (quoting Albert Wohlstetter et al., “Towards a 
355

New Consensus on Nuclear Technology,” PH-78-04-832-13, prepared for the U.S. Arms Control and Disarmament Agency, July 

6 ,1979, pp. 34-35).

59. See Greenberg, “The NPT and Plutonium,” p. 14 (quoting 

Arthur Steiner, “Article IV and the ‘Straightforward Bargain’” 

[PAN Paper 78-832-08]). Steiner’s paper appeared in the supporting materials for Wohlstetter’s 1979 report.

60. Steiner (quoted by Greenberg, p. 16).

61. Ibid. 

62. Greenberg first prepared “The NPT and Plutonium” 

paper for the Nuclear Control Institute (NCI) in the mid-1980s, 

and revised it for NCI in 1993. See Eldon Greenberg, testimony 

before the House Subcommittee on International Terrorism and 

Nonproliferation, Washington, DC, March 2, 2006, p. 1, available 

from www.internationalrelations.house.gov/archives/109/gre030206.

pdf.

63. Greenberg, “The NPT and Plutonium,”p. 1.

64. Ibid. , p. 10.

65. Ibid. , p. 19.

66. Ibid. , p. 1.

67. Ibid. , pp. 21-22.

68. Ibid. , p. 22. Greenberg held that these conclusions were 

particularly compelling because reprocessing did not seem to 

offer any meaningful economic benefit anyway, and he hinted 

that a finding of “non-benefit,” as such, might give rise to “a presumption . . . that the purpose is not legitimate under the NPT.” 

Ibid., pp. 22-23. He did not, however, mean to suggest that a finding of nonbenefit in itself would necessarily trigger the nonproliferation provision. Greenberg did not think it would be per se 

unlawful to possess a non-beneficial technology provided that it 

could be adequately safeguarded. His point was straightforward: 

if a technology could not be effectively safeguarded against mis-
356

use, there was no “right” to its possession by nonweapons states. 

See Eldon Greenberg, interview with the author, April 2, 2009; 

Greenberg, “The NPT and Plutonium,” p. 24 (noting that ACDA 

Director William Foster, in his explanation of the NPT to the U.S. 

Senate, left open the possibility that even activities placed under 

safeguards “could be considered violations of the NPT’s prohibitions . . . if there were evidence that safeguards could not be 

effectively applied”).

69. Greenberg, “The NPT and Plutonium,”p. 22.

70. Ibid. , p. 1.

71. Greenberg testimony, p. 1.

72. Ibid. , p. 24 (quoting U.S. NPT negotiator Adrian Fisher, in 

Hearings on S.1439 before the Senate Committee on Government 

Operations, 94th Cong., 2d Sess. 141, 1976).

73. Greenberg, “The NPT and Plutonium,”p. 12.

74. Paul Leventhal, “Safeguards Shortcomings—A Critique,” 

Washington, DC: Nuclear Control Institute, September 12 ,1994, 

at n.16, available from www.nci.org/p/plsgrds.htm.

75. Leonard Weiss, “Atoms for Peace,” Bulletin of the Atomic 

Scientists, Vol. 59, No. 6, November 1, 2003.

76. Leonard Weiss, “The Nuclear Nonproliferation Treaty: 

Strengths and Gaps” [hereinafter Weiss I], Henry Sokolski, ed., 

Fighting Proliferation: New Concerns for the Nineties, Maxwell Air 

Force Base, AL: Air University Press, 1996, available from www.

fas.org/irp/threat/fp/index.html.

77. Henry Sokolski, “What Does the History of the Nuclear 

Nonproliferation Treaty Tell Us about Its Future?” in Sokolski, 

ed., Fighting Proliferation: New Concerns for the Nineties, at part I, 

ch.1, text accompanying note 61.

78. Ibid., at text accompanying notes 62-65.

79. Henry A. Sokolski, “After Iran: Back to the Basics on 
357

‘Peaceful’ Nuclear Energy,” Arms Control Today, Vol. 36, April 

2006, at text accompanying note, p. 3, available from www.armscontrol.

org/act/2005_04/Sokolski.

80. Henry Sokolski, “Too Speculative?” The New Atlantis, Fall 

2006, pp. 119, 123; Sokolski, “Nuclear Policy and the Presidential 

Election,”p. 9 (decrying the idea that “states have an inalienable 

right not just to have but to make nuclear fuel—a step, it bears 

repeating, that would bring them within a whisker of making a 

bomb”).

81. Henry Sokolski, “The Nuclear Nonproliferation Treaty and 

Peaceful Nuclear Energy,” testimony before the House Subcommittee on International Terrorism and Nonproliferation, Washington, DC, March 2, 2006, available from www.internationalrelations.

house.gov/archives/109/sok030206.pdf.

82. Ibid., p. 4, n.7 (citing Lettow paper); See also ibid., p. 1., 

n.1 (noting that NPEC’s safeguardability arguments “rely heavily upon the substantive historical and legal analyses of Albert 

Wohlstetter, Arthur Steiner, Eldon V.C. Greenberg, and Paul Lettow”).

83. Zarate, p. 226.

84. Ibid., p. 225.

85. Ibid., p. 226.

86. Ibid., p. 256.

87. Charles Ferguson, Nuclear Energy: Balancing Benefits and 

Risks, CFR Special Report No. 28, April 2007, pp. 16-18.

88. Ibid., p. 25.

89. Ibid., p. 20.

90. Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, World At Risk, New York: 

Vintage Books, 2008, (hereinafter WMD Commission Report), p. 53.
358

91. Ibid., p. 46.

92. Congressional Commission on the Strategic Posture of 

the United States, Interim Report, December 15, 2008, (hereinafter 

Congressional Commission Interim Report), pp. 4-5.

93. Ibid., p. 10.

94. Congressional Commission on the Strategic Posture of 

the United States, America’s Strategic Posture, Washington, DC: 

U.S. Institute of Peace Press, 2009 (hereinafter Congressional 

Commission America’s Strategic Posture), p. 77; see also ibid., p. 80.

95. Ibid., p. 78.

96. An attorney in the Office of the Legal Advisor insisted 

upon deleting passages to this effect from the author’s draft presentation to a conference in Paris in the summer of 2007 sponsored by the U.S. Naval Postgraduate School. Those deleted sections formed the starting point for this article.

97. NPT, from the preamble (affirming that “the benefits of 

peaceful applications of nuclear technology . . . should be available for peaceful purposes to all Parties”)(emphasis added).

98. This author has elsewhere called for disarmament debates under the NPT’s Article VI to be similarly de-“legalized.” 

See Christopher A. Ford, “Nuclear Disarmament and the ‘Legalization’ of Policy Discourse in the NPT Regime,” remarks to the 

James Martin Center for Nonproliferation Studies, Washington, 

DC, November 29, 2007; see also Christopher A. Ford, “Christopher A. Ford responds,” Nonproliferation Review, Vol. 15, No. 

3, November 2008, pp. 418, 420 (arguing the need for “a kind 

of mercy killing of conventional jurisprudential wishful thinking about Article VI—not in order to ‘paper over’ anything, but 

rather precisely in order to make possible the kind of rich and 

constructive policy debates the world needs”).

99. See, e.g., Victor Gilinsky, Marvin Miller, and Harmon 

Hubbard, “A Fresh Examination of the Proliferation Dangers 

of Light Water Reactors,” October 22, 2004, available from

www.npecweb.org/Frameset.asp?PageType=Single&PDFFile=Repo
359

rt041022%20LWR&PDFFolder=Reports; Edwin S. Lyman, “Can 

Nuclear Fuel Production in Iran and Elsewhere Be Safeguarded

against Diversion?” in Falling Behind: International Scrutiny of the 

Peaceful Atom, pp. 101; Thomas B. Cochran, “Adequacy of IAEA’s 

Safeguards for Achieving Timely Detection,” in ibid., p. 121; Henry Sokolski, “Assessing the IAEA’s Ability to Verify the NPT,” in

ibid., p. 3.

100. See Bolton; Ford, “NPT Article IV: Peaceful Uses of Nuclear Energy.”

101. This is a drafting problem of the NPT that has been noted by others. See Weiss, (“Nothing in the treaty prohibits a nonweapon state that is party to the treaty from assisting another 

non-weapon state in manufacturing or otherwise acquiring the 

bomb.”)

102. “Joint Declaration by the Heads of Government of the 

United States, the United Kingdom, and Canada,” November 15, 

1945, U.S. Department of State, Documents on Disarmament: 1945-

1959, Vol. I, Washington, DC: Department of State Historical Office, 1960, pp. 1, 2.

103. “Statement by the United States Representative (Baruch) 

to the United Nations Atomic Energy Commission,” June 14, 

1946, in Documents on Disarmament: 1945-1959, Volume I, pp. 7, 

10 & 14-15.

104. “United States Memoranda on the Proposed Atomic Development Authority, Submitted to Subcommittee I of the UN 

Atomic Energy Commission,” Documents on Disarmament: 1945-

1959, Vol. I, pp. 25, 27 (July 2, 1946 memorandum); see also ibid.,

pp. 30, 32 (July 5, 1946 memorandum). One reason for the U.S. 

emphasis upon a flat prohibition upon national governments 

having any fuel making capability lay in the difficulty of verifying and enforcing compliance with any system that permitted 

national fissile material production for “peaceful” purposes. As 

one U.S. diplomat explained it, once the International Authority 

had been provided with exclusive authority to undertake such 

activity, “then the agency in the detection of clandestine activities need not be concerned with the motives of those carrying 

on unauthorized activities in this field, for it is the very exis-
360

tence of such activities that is illegal.” Also, see “Statement by 

the Deputy United States Representative (Cohen) to Committee I 

of the Disarmament Commission” (May 14, 1952), Documents on 

Disarmament: 1945-1959, Vol. I, pp. 358, 362. This is a problem, of 

course, that bedevils the nuclear safeguards system today—and 

which has also been identified as a stumbling block for verifying 

a future Fissile Material Cutoff Treaty (FMCT). See U.S. Special 

Representative for Nuclear Nonproliferation Christopher Ford, 

“The United States and the Fissile Material Cutoff Treaty,” paper delivered at conference on “Preparing for 2010: Getting the 

Process Right,” Annecy, France, March 17, 2007, available from

www.state.gov/t/isn/rls/other/81950.htm.

105. “United States Memoranda on the Proposed Atomic Development Authority, Submitted to Subcommittee I of the UN 

Atomic Energy Commission,” p. 27 (July 2, 1946, memorandum).

106. United States Memoranda on the Proposed Atomic Development Authority, Submitted to Subcommittee I of the UN 

Atomic Energy Commission,” p. 32 (July 5, 1946, memorandum).

107. United States Memoranda on the Proposed Atomic Development Authority, Submitted to Subcommittee I of the UN 

Atomic Energy Commission,” p. 27 (July 2, 1946, memorandum).

108. United States Memoranda on the Proposed Atomic Development Authority, Submitted to Subcommittee I of the UN 

Atomic Energy Commission,” p. 33 (July 5, 1946, memorandum).

109. Report on the International Control of Atomic Energy, 

March 16, 1946 (hereinafter Acheson-Lilienthal Report), Washington, DC: U.S. Government Printing Office, 1946, U.S. Department of State, Publication 2498, p. 3 (quoting Agreed Declaration 

of November 15, 1945, by the President of the United States and 

the Prime Ministers of the United Kingdom and Canada).

110. See Acheson-Lilienthal Report, p. 26 (emphasizing that 

“this distinction between the ‘safe’ and the ‘dangerous’ can be 

useful without being completely sharp or fixed for all time”); 

ibid., pp. 26, 29 (discussing what it considers to be inherently 

“dangerous” activities, including U-235 enrichment “by any 

methods now known to us” and plutonium production, and “[t]
361

he operation of the various types of reactors for making plutonium, and of separation plants for extracting the plutonium”); ibid., 

pp. 27-28 (discussing what it considers to be “safe activities”).

111. Ibid., pp. 32-33.

112. Ibid., p. 26.

113. Ibid., p. 35.

114. Ibid., p. 26.

115. U.S. State Department, press release No. 235, April 9, 

1946, p. 1, appended to Acheson-Lilienthal Report.

116. Acheson-Lilienthal Report, p. 35 (emphasis added).

117 . Ibid., p. viii.

118. Ibid., p. 9.

119. Ibid., p. 30.

120. Ibid., pp. 4, 8-9; See also ibid., p. 21, 

Take the case of a controlled reactor, a power pile, producing 

plutonium. Assume an international agreement barring use of 

the plutonium in a bomb, but permitting use of the pile for heat 

or power. No system of inspection, we have concluded, could afford any reasonable security against the diversion of such materials to the purposes of war. If nations may engage in this dangerous field, and only national good faith and international policing 

stand in the way, the very existence of the prohibition against the use 

of such piles to produce fissionable material suitable for bombs 

would tend to stimulate and encourage surreptitious evasions. 

This danger in the situation is attributable to the fact that this 

potentially hazardous activity is carried on by nations or their 

citizens.

121. Ibid., pp. 5-6 (emphasis in original).

122. Ibid. p. 29.
362

123. Ibid., p. viii. The Acheson-Lilienthal Report also worried 

about the problem of seizure. Because even internationally-owned 

and -operated nuclear facilities had to be located somewhere, there 

existed a danger that a bomb-acquisitive host government might 

simply take over a reactor or fuel making plant by force of arms. 

This, the Report recognized, could not really be prevented: “It is 

not thought that the Atomic Development Authority could protect its plants by military force from the overwhelming power 

of the nation in which they are situated.” Ibid., p. 47. In an interesting presaging of the idea of “countervailing reconstitution” 

floated by U.S. officials many years later as a potential way to 

deter “breakout” from a hypothetical future regime of nuclear 

weapons prohibition, however, the Acheson-Lilienthal Report 

suggested that seizure by any particular host country might 

be deterred by the prospect that if this occurred other countries 

would quickly follow suit in order to create a nuclear weapons 

balance:

The real protection will lie in the fact that if any nation seizes 

the plants or the stockpiles that are situated in its territory, other 

nations will have similar facilities and materials situated within 

their own borders so that the act of seizure need not place them 

at a disadvantage.

Ibid., p. 47; compare with U.S. Special Representative for Nuclear Nonproliferation Christopher A. Ford, “Disarmament and 

Non-Nuclear Stability in Tomorrow’s World,” remarks to the 

Conference on Disarmament and Nonproliferation Issues, Nagasaki, Japan , August 31, 2007, available from www.state.gov/t/

isn/rls/rm/92733.htm (noting “the possibility that the potential 

availability of countervailing reconstitution would need to be a 

part of deterring “breakout” from a zero-weapons regime.” As a 

result, “[t]he decisive consideration in determining the location 

of such plants will have to be strategic; otherwise the physical 

balance between nations will be impaired. In other words, the 

distribution of these plants throughout the world will have to be 

based primarily on security considerations.”Acheson-Lilienthal 

Report, p. 48.

124. Acheson-Lilienthal Report, p. 22.
363

125. “First Report of the United Nations Atomic Energy 

Commission to the Security Council,”December 31, 1946, Documents on Disarmament: 1945-1959, Vol. I, pp. 50, 51, 56.

126. See also “Statement by the United States Representative 

(Cooper) to the General Assembly,” December 12, 1950, Documents on Disarmament: 1945-1959, Vol. I, pp. 263, 264 (“A real and 

effective solution to the problem [of controlling nuclear technology] was made essential by the fact that atomic energy developed 

for peaceful purposes is, automatically and inescapably, adaptable to military purposes.”).

127. “Second Report of the UN Atomic Energy Commission 

to the Security Council,” September 11, 1947, Documents on Disarmament: 1945-1959, Vol. I, pp. 93, 97.

128. Ibid., p. 98.

129. The word “nonproliferation” did not yet appear in the 

international lexicon. Indeed it was the concern of the UN and 

the American proposals not merely—as would later be the case 

with the NPT—to stop the spread of weapons capabilities to additional states, but instead to ensure that no national governments 

retained a fuel-cycle capability at all. Nevertheless, the fundamental issue would remain the same throughout the nuclear era: 

grave concern about the implications for peace and stability of 

national acquisition of nuclear weapons capabilities.

130. “Second Report of the United Nations Atomic Energy 

Commission,” p. 96.

131. Ibid., p. 99; see also ibid., pp. 149-50 (offering the same 

basic definition).

132. Ibid., p. 129.

133. “Address by Secretary of State Acheson to the First Committee of the General Assembly,”November 19, 1951, Documents 

on Disarmament: 1945-1959, Vol. I, pp. 309, 216, 326.

134. “Second Report of the United Nations Atomic Energy 

Commission,” pp. 127-128.
364

135. Ibid., pp. 131, 133 (emphasis added).

136. The phrase comes from a well-known 1968 article on 

overpopulation, in which it was suggested that individuals free 

to act independently in their own rational self-interest could 

produce a collective disaster by entirely consuming a shared resource. The example Hardin gave was that of a shared pasture 

that will destroyed by unrestricted livestock grazing, because as 

long as any of it remains ungrazed, there existed an economically 

“rational” reason for each villager to add another cow to the herd 

already using it. See Garrett Hardin, “The Tragedy of the Commons,” Science, Vol. 162, No. 3859, December 13, 1968, p. 1243, 

available from www.sciencemag.org/cgi/content/full/162/3859/1243. 

For our purposes, by analogy, states with nuclear technologyaccess rights, acting in their own self-interest, could produce collective catastrophe by exhausting the shared resource of a world 

in which nuclear weapons development was precluded. As Hardin put it, “[f]reedom in a commons brings ruin to all.” As he saw 

things, at least,

The only way we can preserve and nurture other and more 

precious freedoms is by relinquishing the freedom to [consume the shared resource], and that very soon. ‘Freedom is the 

recognition of necessity’—and it is the role of education to reveal 

to all the necessity of abandoning the freedom [to consume it] . . 

. . Only so, can we put an end to this aspect of the tragedy of the 

commons.

Needless to say, Hardin’s analysis would surely have been 

grimmer still had his grazing analogy had to cope with the additional challenges faced by the nuclear nonproliferation regime—

which must struggle not only with aspiring nuclear technology 

consumers each acting out of economic self interest for genuinely 

peaceful purposes, but also with the occasional consumer whose 

intentions are malign (i.e., who seeks to acquire nuclear weapons).

137. “Statement on Atomic Energy Control by the Representatives of Canada, China, France, the United Kingdom, and 

the United States,” October 25, 1949, Documents on Disarmament: 

1945-1959, Vol. I, pp. 216, 223.
365

138. “Second Report of the United Nations Atomic Energy 

Commission,” pp. 129-130.

139. See General Assembly Resolution 502(VI): “Regulation, 

Limitation, and Balanced Reduction of All Armed Forces and All 

Armaments; International Control of Atomic Energy,” January 

11, 1952, Documents on Disarmament: 1945-1959, Vol. I, pp. 337, 

338.

140. “Statement by the Soviet Representative (Gromyko) to 

the Security Council,” March 5, 1947, Documents on Disarmament: 

1945-1959, Vol. I, pp. 64, 73-74, 76.

141. “Address by the Soviet Foreign Minister (Vyshinsky) to 

the General Assembly [Extract],” November 8, 1951, Documents 

on Disarmament: 1945-1959, Vol. I, pp. 281-282.

142. See “Statement by the Deputy United States Representative (Cohen) to Committee I of the Disarmament Commission” 

(May 14, 1952), Documents on Disarmament: 1945-1959, Vol. I, pp. 

358, 358, n. 2 (citing Disarmament Commission Official Records: 

Special Supplement No.1, Second Report of the Disarmament Commission, pp. 78 [comments by Malik]).

143. The Soviet proposals insisted upon inspection being 

merely periodic, and Moscow opposed any continuous inspector 

presence. “Statement on Atomic Energy Control by the Representatives of Canada, China, France, the United Kingdom, and 

the United States” (October 25, 1949), in Documents on Disarmament: 1945-1959, Vol. I, pp. 216, 219 (denouncing periodic inspections as inadequate).

144. “Soviet Proposals Introduced in the United Nations 

Atomic Energy Commission,” June 11, 1947, Documents on Disarmament: 1945-1959, Vol. I, pp. 85, 86-87. As they explained it,

the question of sanctions against violators of the convention 

on the prohibition of atomic weapons is subject to decisions by 

the Security Council only. As it is known, procedure of adoption 

by the Council of decisions on sanctions as well as of other important decisions relating to the maintenance of international peace 

has been defined in Article 27 of the United Nations Charter.
366

“Letter from the Soviet Representative on the United Nations 

Atomic Energy Commission (Gromyko) to the British Representative (Cadogan),” September 5, 1947, Documents on Disarmament: 

1945-1959, Vol. I, pp. 91, 93. As U.S. officials noted derisively, the 

Soviets thus wanted

an international agency whose recommendations would be 

subject to the veto of any one of the five Powers which are permanent members of the Security council. Such a power of veto 

would make any treaty unenforceable. 

“Statement by the Deputy United States Representative (Osborn) to the United Nations Atomic Energy Commission” (July 

20, 1949), in ibid., pp. 194, 196. The other former allies from the 

Second World War denounced Moscow’s proposals as being “so 

inadequate as to be dangerous” because they would “delude the 

peoples of the world into thinking that atomic energy was being 

controlled when in fact it was not.” “Statement on Atomic Energy Control by the Representatives of Canada, China, France, the 

United Kingdom, and the United States,” October 25, 1949, pp. 

216, 217-18; 326; “Address by Secretary of State Acheson to the 

First Committee of the General Assembly,” November 19, 1951, 

in ibid., pp. 309, 326.

145. See “Letter from the Soviet Representative on the United 

Nations Atomic Energy Commission (Gromyko) to the British 

Representative (Cadogan),” p. 91 (“After the conclusion of [a]

convention on the prohibition of atomic weapons, another convention can and must be concluded, to provide for the creation of 

an international control commission and for the establishment of 

other measures of control and inspection . . . .”). Later, after they 

had themselves acquired nuclear weapons, the Soviets modified 

their approach by suggesting the possibility of accomplishing a 

nuclear weapons ban simultaneously with the establishment of an 

international energy control mechanism. See “Statement by the 

Soviet Government on President Eisenhower’s ‘Atoms for Peace’ 

Address,” December 21, 1953, Documents on Disarmament: 1945-

1959, Vol. I, pp. 401, 405.

146. “Soviet Proposals Introduced in the United Nations 

Atomic Energy Commission,” p. 88.
367

147. See “Statement by President Truman Regarding Atomic 

Explosion in the Soviet Union,” September 23, 1949, Documents 

on Disarmament: 1945-1959, Vol. I, pp. 207, 207 (first announcing 

that “We have evidence that within recent weeks and atomic explosion occurred in the USSR”).

148. “United States ‘Atoms for Peace’” Proposal: Address by 

President Eisenhower to the General Assembly,” December 8, 

1953, Documents on Disarmament: 1945-1959, Vol. I, pp. 393, 395.

149. Ibid., pp. 399-400.

150. “News Conference Remarks by Secretary of State Acheson on the Revised Soviet Proposal,” January 16, 1952, Documents 

on Disarmament: 1945-1959, Vol. I, pp. 342, 343.

151. See “United States Working Paper Submitted to the 

Disarmament Subcommittee: Methods of Implementing and 

Enforcing Disarmament Programs—The Establishment of International Control Organs With Appropriate Rights, Powers, and 

Functions,”May 25, 1954, Documents on Disarmament: 1945-1959, 

Vol. I, pp. 414-418.

152. Ibid., pp. 419-420.

153. “Statement by President Eisenhower at the Geneva Conference of Heads of Government: Aerial Inspection and Exchange 

of Military Blueprints,” July 21, 1955, Documents on Disarmament:

1945-1959, Vol. I, pp. 486-488.

154. See “Statement by President Eisenhower Regarding 

Nuclear Weapons Tests,” October 23, 1956, Documents on Disarmament: 1945-1959, Vol. I, pp. 698, 698-701, (arguing that the 

United States would agree to nuclear disarmament when it could 

be confident of otherwise ensuring “safety from attack,” but that 

for the time being, the continuing need for America’s nuclear arsenal was still “sharply accented by the unavoidable fact of our 

numerical inferiority to Communist manpower”).

155. “Soviet Proposal Introduced in the Disarmament Subcommittee: Reduction of Armaments, the Prohibition of Atomic 
368

Weapons, and the Elimination of the Threat of a New War,” May 

10, 1955, Documents on Disarmament: 1945-1959, Vol. I, pp. 456, 

465.

156. Ibid.

157. “United States Memorandum Supplementing the Outline Plan for the Implementation of President Eisenhower’s Aerial Inspection Proposal, Submitted to the Disarmament Subcommittee,” October 7, 1955, Documents on Disarmament: 1945-1959, 

Vol. I, pp. 523-524 (quoting comments of United Kingdom representative on October 5, 1955).

158. Ibid., pp. 524-525.

159. “Statement by the British Foreign Secretary (Macmillan) 

at the Geneva Meeting of the Foreign Ministers,” November 10, 

1955, Documents on Disarmament: 1945-1959, Vol. I, pp. 547, 549-

551.

160. “Draft Resolution Introduced in the Disarmament Commission by the United States, the United Kingdom, France, and 

Canada,” July 3, 1956, Documents on Disarmament: 1945-1959,

Vol. I, pp. 645-646 (emphasis added); See also “Statement by the 

French Representative (Moch) to the Disarmament Commission 

[Extract],” July 10, 1956, Documents on Disarmament: 1945-1959, 

Vol. I, pp. 658 (arguing that “[i]t is now established that past production cannot be checked with sufficient accuracy” and that 

“the rapid growth of stocks, already foreseeable even [when estimated by French authorities in 1952 to have an accuracy rate of 

only 70 to 80 percent], must therefore by now have converted the 

margin of error into complete and total uncertainty”).

161. “White House Memorandum: Weapons Tests and Peaceful Uses of the Atom,” October 23, 1956, Documents on Disarmament: 1945-1959, Vol. I, pp. 702, 706.

162. “White House Memorandum: Review of Disarmament 

Negotiations,” October 23, 1956, Documents on Disarmament: 

1945-1959, Vol. I, pp. 708, 713, 718.

163. NPT, Art. III(1).
369

164 . Albert Wohlstetter, “Spreading the Bomb without Quite 

Breaking the Rules,” Foreign Policy, No. 25, Winter 1976, p. 88, 

Robert Zarate & Henry Sokolski, eds., Nuclear Heuristics: Selected 

Writings of Albert and Roberta Wohlstetter, Carlisle, PA: Strategic 

Studies Institute, U.S. Army War College, 2009, pp. 301, 306.

165. U.S. Director of Central Intelligence, Nuclear Weapons 

Production in Fourth Countries: Likelihood and Consequences, declassified U.S. National Intelligence Estimate, NIE 100-6-57, June 18, 

1957 (hereinafter June 1957 NIE), pp. 1-3, para. 11.

166. U.S. Director of Central Intelligence, Development of Nuclear Capabilities by Fourth Countries: Likelihood and Consequences, 

declassified U.S. National Intelligence Estimate, NIE 100-2-58, 

July 1, 1958 [hereinafter July 1958 NIE], pp. 3, para. 13.

167. June 1957 NIE, p. 3, para. 12.

168. July 1958 NIE, p. 3, para. 14.

169. Ibid., p. 4, para. 16; ibid. p. 1, para. 1 (estimating at least 

5 years).

170. Ibid, p. 5, para. 21.

171. Ibid.

172. Ibid., p. 5, para. 24.

173. U.S. Director of Central Intelligence, Likelihood and Consequences of the Development of Nuclear Capabilities by Additional 

Countries, declassified U.S. National Intelligence Estimate, NIE 

100-4-60, September 20, 1960 (hereinafter September 1960 NIE), p. 

3, para. 10 (emphasis added); See also U.S. Director of Central Intelligence, Nuclear Weapons and Delivery Capabilities of Free World 

Countries other than the U.S. and UK, declassified U.S. National 

Intelligence Estimate, NIE 4-3-61, September 21, 1961 (hereinafter 

September 1961 NIE), p. 3, para. 5 (making a similar point).

174. Wohlstetter, p. 306.
370

175. See Acheson-Lilienthal Report, p. 1 (recounting an official statement issued, after the first release of the Report on March 

28, 1946, that there had been “some public misunderstanding of 

what denaturing is, and of the degree of safety that it could afford,” and noting that it was untrue “that a system of control 

based solely on denaturing could provide adequate safety”).

176. Ibid., p. 26.

177. See Wohlstetter et al., pp. 48-54. As Amory Lovins has 

recounted in a detailed discussion of the plutonium issue, “the 

assumption that power-reactor Pu [plutonium] was unsuitable 

for bombs was questioned with increasing force” in the early 

1970s. The notion was apparently widely discredited by 1974, 

and indeed in 1977 the United States announced that it had indeed “successfully tested a nuclear weapon made from reactorgrade Pu.” Amory B. Lovins, “Nuclear Weapons and power-reactor plutonium,” Nature, Vol. 283, No. 5750, February 28, 1980, 

pp. 817-823, p. 1 (pagination from reprint in author’s collection). 

Interest in denaturing seems perennial. Recently, an Israeli scientist has claimed to have developed an apparently new way of 

denaturing plutonium in reactor fuel. This, it is suggested, could 

declaw the plutonium by making it, if separated, “unsuitable for 

use in nuclear arms.” See Batsheva Sobleman, “Israel: Science 

against nuclear proliferation,” Los Angeles Times blog posting, 

March 5, 2009, available from latimesblogs.latimes.com/babylonbeyond/2009/03/israel-science.html.

178. Wohlstetter, p. 305.

179. Ibid.; See also Wohlstetter et al., pp. 49, 71 (noting “some 

residual traces [persist] of a belief that a solution” based upon 

denaturing, and discussing the denaturing issue). According to 

Lovins, basic facts about the weapons-usability of reactor plutonium were apparently still widely—and, he argued, dangerously—misunderstood even in the late 1970s. Lovins, p. 1.

180. The technical and financial entry barriers to the enrichment business were doubly fortunate, in fact, insofar as its costliness permitted existing supplier states to continue their monopoly upon fuel making—and it was this monopoly that helped 

permit the emerging system of international nuclear benefit-shar-
371

ing to manage the risk of plutonium reprocessing, because suppliers insisted that safeguards be applied upon the nuclear fuel 

they provide. In any event, U.S. officials estimated that anyone 

desiring “a substantial [nuclear weapons] capability,” including 

“the production of U-235,” would have to spend “astronomic” 

amounts of money. U.S. Director of Central Intelligence, Likelihood and Consequences of a Proliferation of Nuclear Weapons Systems, 

declassified U.S. National Intelligence Estimate, NIE 4-63, June 

28, 1963 (hereinafter June 1963 NIE), p. 5, paras. 2-3. The expense 

and difficulty was doubly great because ballistic missiles or other 

nuclear-capable delivery systems had not yet themselves proliferated: a new weapons state would have not merely to acquire 

nuclear explosive devices but also systems with which to deliver 

them.

181. Roswell Gilpatric et al., “Nuclear Weapons Programs 

Around the World,” TS 190187, December 3, 1964, declassified 

memorandum (hereinafter Gilpatric Report), available from 

www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB155/prolif-10.pdf, p. 1.

182. Gilpatric Report, p. 9 (discussing India, Israel, Sweden, 

West Germany, Italy, Japan, and Canada). The Acheson-Lilienthal 

Report had been even more sanguine: “Whether any nation—we 

are excluding Great Britain and Canada—could achieve such an 

intensive program is a matter of serious doubt.” Acheson-Lilienthal Report, p. ix; see also ibid., p. 2 (noting “[s]trong arguments” 

that “the results attained in the United States cannot be paralleled by independent work in other nations”); ibid., p. 23.

183. See Henry Sokolski, Best of Intentions: America’s Campaign 

Against Strategic Weapons Proliferation, Westport, CT: Praeger, 

2000, p. 32 (citing testimony); and “Atoms for Peace: A Non-Proliferation Primer?” Arms Control, Vol. 1, No. 2, September 1980, 

pp. 199-231.

184. “Statement by the United States Representative (Stassen) to the Disarmament Subcommittee: Nuclear Weapons and 

Testing,” March 20, 1957, Documents on Disarmament 1945-1959, 

Vol. II, pp. 763, 766-767.

185. See Sokolski, Best of Intentions, pp. 25-29. A number of 

ideas for increasing the effectiveness of safeguards in prevent-
372

ing the diversion of fissile materials were proposed by American 

officials in the negotiations that led to the creation of the IAEA 

Statute in 1957, but these were opposed by India, France, the Soviets, and Switzerland, and were not ultimately included; ibid.,

pp. 30-31.

186. September 1961 NIE, p. 3, para. 5, p. 4, para. 8.

187. September 1960 NIE, p. 11, para. 42.

188. July 1958 NIE, p. 18, para. 86. Moreover, the actual impact upon world stability of additional proliferation was understood to depend, to some degree, upon who got nuclear weapons. 

Not all potential possessors were equally worrisome. “The actual 

effect on the world situation is likely to depend on the country 

itself: the character of its government, the nature of its national 

aims and aspirations, the identity of its principal rivals, and the 

alliances and alignments in which it is involved, and the chief 

problems of its foreign relations.” Ibid. p. 18, para. 87. In any 

event, a subsequent NIE noted, the most significant determinants 

of “pace and content of nuclear diffusion” were not “differences 

in national wealth and technical skill” but rather “national differences in political determination and strategic objectives.” June 

1963 NIE, p. 6, para. 5.

189. June 1963 NIE, pp. 18 para. 47. Instead, the dangers of 

such small-scale proliferation were felt to be limited to the “political and psychological effects of the existence of such new 

weapons,” and possible escalation of regional problems. Ibid.,

pp. 18-19, para. 47; see also ibid., pp. 19-20, para. 50 (arguing that 

“[a] new nuclear power may be emboldened by the possession 

of nuclear weapons to a more vigorous pursuit of its objectives 

against enemy states, and the result may be an increase in the 

frequency of local crises”).

190. Whether or not such conclusions were reasonable half a 

century ago, they would be much harder to sustain today, when 

U.S. and Russian arsenals have been reduced so dramatically—

and they would be less tenable still if further progress were made 

toward nuclear weapons abolition. See Christopher A. Ford, 

“Five Plus Three: How to Have a Meaningful and Helpful Fissile 

Material Cutoff Treaty,” Arms Control Today, Vol. 39, March 2009, 
373

pp. 24, 33, n.23 (“. . .[U]ncertainty about the possible existence of 

an extra handful of weapons here or there might perhaps have 

been acceptable in the context of a Cold War nuclear standoff 

between parties already possessing several thousand of such devices. The threshold of military significance arrives much more 

quickly where at issue is the potential arrival of a completely new 

player in the nuclear weapons business [today] or one country’s 

achievement of breakout from a [future] nuclear weapons abolition regime.”).

The Eisenhower Administration’s argument, moreover, 

revolved almost entirely around the threat of direct nuclear attack 

by a future proliferator. Even though UN Ambassador Lodge 

conceded in 1956 that seeing the nuclear arms race “spread to 

more areas of the globe . . . could easily ignite a nuclear conflagration,” the United States does not seem to have considered the potential impact of horizontal proliferation upon regional stability 

and extra-regional security relationships. See “Statement by the 

United States Representative (Lodge) to the Disarmament Commission,” July 3, 1956, Documents on Disarmament 1945-1959, Vol. 

I, pp. 648-649.

191. Ironically, the 1961 NIE noted that such developments 

might indeed undercut its assumption that uranium enrichment 

was unachievable for most would-be proliferators. It expressly 

assumed that “there will be no significant technological breakthrough in the next several years which would significantly alter the complexity or economic costs of developing a nuclear capability,” such as “the perfecting of the gas centrifuge process 

for isotope separation” in order to “require less electric power, 

be adaptable to small capacity production, and be more easily 

concealed.” An advance of this kind, the NIE warned, “would 

increase the number of countries which could afford to produce weapons.” See September 1961 NIE, p. 4, para. 11. Fatefully—if unknowingly—foreshadowing the wide dissemination of 

URENCO-developed enrichment technology by Pakistan’s A. Q. 

Khan, which would shatter many of these assumptions, the 1961 

NIE also noted in passing that West Germany was already doing 

research on U-235 isotope separation, “including the gas centrifuge process,” which could speed up separation from uranium 

ore. Ibid., p. 10, para. 41.

192. NPT, Art. IV(2).
374

193. See NPT, from the Preamble (“Affirming the principle 

that the benefits of peaceful applications of nuclear technology, 

including any technological by-products which may be derived 

by nuclear weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all 

. . . .”).

194. See Mexican Working Paper submitted to the Eighteen 

Nation Disarmament Committee: Suggested Additions to Draft 

Nonproliferation Treaty, September 19, 1967, U.S. Arms Control and Disarmament Agency, Documents on Disarmament 1967, 

Washington DC: Government Printing Office, 1968 (hereinafter 

Documents on Disarmament 1967), pp. 394-395; See also U.S. Arms 

Control and Disarmament Agency, International Negotiations on 

the Treaty on the Nonproliferation of Nuclear Weapons, Washington, 

DC: U.S. Government Printing Office, 1969 (hereinafter ACDA 

Negotiating History), p. 67.

195. Documents on Disarmament 1967, p. 397 (remarks of Amb. 

Castaneda).

196. Conference of the Eighteen-Nation Committee on Disarmament, ENDC/PV.367, February 20, 1968, p. 18; see also ACDA 

Negotiating History, p. 103.

197. “Nigerian Working Paper Submitted to the EighteenNation Disarmament Committee: Additions and Amendments 

to the Draft Nonproliferation Treaty, November 2 1967,” Documents on Disarmament 1967, pp. 557-558; see also Zarate, pp. 246-

247, 280-81, n.62.

198. Spanish Memorandum to the Co-Chairmen of the Eighteen-Nation Disarmament Committee, February 8, 1968, Documents on Disarmament 1968, Washington, DC: ACDA, 1969, p. 40; 

see also ACDA Negotiating History, p. 103.

199. See ACDA Negotiating History, p. 83; Conference of the 

Eighteen-Nation Committee on Disarmament, ENCD/PV.371, 

February 28, 1968, p. 20 (remarks of Canada’s General Burns); see 

also U.S. State Department, Promoting Expanded and Responsible 

Uses of Nuclear Energy, April 16, 2007, available from www.state.
375

gov/t/isn/rls/other/83210.htm.

200. “Revised Draft Treaty on the Nonproliferation of Nuclear Weapons, January 18, 1968,” in ACDA Negotiating History, pp. 

150-154.

201. Ibid. p. 117 (comments by Nigeria), 120-123 (comments 

by Mexico, Chile, Australia, South Africa, and Israel). Their objections were addressed only to the extent that the final text was 

amended to refer to “exchange” of “equipment” and “materials” 

rather than just “information.” See Draft Treaty on the Nonproliferation of Nuclear Weapons, May 31, 1968, ACDA Negotiating 

History, pp. 160-165; see also ibid., p. 123.

202. NPT, Art.IV(1).

203. It is also worth remembering that the UN Security Council, acting pursuant to Chapter VII of the UN Charter, has imposed clear international legal obligations upon Iran to suspend 

its enrichment and reprocessing activities—obligations that operate quite independently of whatever the NPT’s Article IV otherwise does or does not say about Tehran’s right to engage in 

such work.

204. Zarate has also made this point. See Zarate, p. 282, n.66, 

as did I in internal arguments with State Department lawyers beginning in 2004.

205. “Romanian Working Paper Submitted to the Eighteen 

Nation Disarmament Committee: Amendments and Additions 

to the Draft Nonproliferation Treaty, October 19, 1967,” Documents on Disarmament 1967, p. 525.

206. “Statement by the Mexican Representative (Garcia 

Robles) to the Eighteen-Nation Disarmament Committee: Latin 

American Nuclear-Free Zone and Nonproliferation of Nuclear 

Weapons, March 21, 1967,” Documents on Disarmament 1967, pp. 

162-163.

207. Whatever else it might mean, the best reading of Article 

IV(1) does not see that paragraph as conferring the “inalienable 

right.” Its phrasing seems merely to refer to some preexisting 
376

right, though the “conformity” requirements (which refer to articles of the NPT itself) are obviously a new constraint accepted by 

all States Party by virtue of their agreement to the Treaty’s terms. 

The origin of such a preexisting right, however, is unaddressed. 

Conceivably, it comes from no place more profound or more 

codified than the basic assumed “right” of any sovereign state, 

in a fundamentally anarchic international system, to do anything 

it wants in the absence of positive legal constraint. Since the NPT 

seems expressly to limit that very right, however—thereby providing just such a positive constraint—it adds little to the discussion to make this point.

208. On the other hand, as noted previously, some nuclear 

experts reject the view that nuclear power plants are safeguardable in any country of whose peaceful intentions one is not already quite confident. Even, the most proliferation resistant light 

water reactor, they argue, comes with fresh fuel and produces 

plutonium-laden spent fuel that could be diverted to help make 

bombs without the IAEA necessarily finding out in a timely fashion. See Gilinsky et al.

209. Compare NPT, Arts. I, II, and III with ibid., Art. IV.

210. Zarate, pp. 256-257.

211. Henry Sokolski, “The Nuclear Nonproliferation Treaty and Peaceful Nuclear Energy,” testimony given before the 

House Committee on International Relations, Subcommittee on 

International Terrorism and Nonproliferation, Washington, DC, 

March 2, 2006, available from www.internationalrelations.house.

gov/archives/109/sok030206.pdf (quoting ENDC/PV.82, September 

7, 1962; “Statement by the Swedish Representative [Alva Myrdal] 

to the Eighteen-Nation Disarmament Committee: Nonproliferation of Nuclear Weapons,” ENDC/PV.243, February 24, 1966).

212. Zarate. pp. 257, 286, n.91 (quoting ENDC/PV.250, March 

22, 1966, p. 28 [statement of U. Maung Maung Gyi]).

213. “Statement by the Mexican Representative . . . March 21, 

1967,” p. 164; see also ACDA Negotiating History, p. 67.

214. See John Carlson, “Addressing Proliferation Challenges 
377

from the Spread of Uranium Enrichment Capability,” presentation by Russell Leslie, on behalf of John Carlson, to the Institute 

for Nuclear Materials Management Annual Meeting, Tucson, 

Arizona, July 9-12, 2007, PowerPoint slide 2.

215. Ford, “The NPT Review Process and the Future of the 

Nuclear Nonproliferation Regime.”

216. Gottemoeller and Arnaudo, p. 17.

217. See ACDA Negotiating History, pp. 60, 125.

218. “Statement by the Department of State on Nonproliferation and Peaceful Nuclear Activities, February 20, 1967,” Documents on Disarmament 1967, pp. 96, 96-97 (also stating that selling 

U.S. plutonium to EURATOM for electrical power generation 

purposes would be permitted).

219. The official summary of the negotiations paraphrases 

these statements by recounting that the United States had proclaimed that “[t]here was no area of peaceful nuclear development that would be precluded by a treaty.” ACDA Negotiating 

History, p. 64. The actual U.S. statement, however, does not quite 

go so far. While it does emphasize that fast-breeders are not precluded, it does not make the per se claim quoted, and does in 

fact rule out sharing the technology involved in “peaceful nuclear 

explosive devices.” See “Statement by the Department of State,” 

pp. 96-97.

220. “Swiss Aide-Memoire to the Co-Chairmen of the Eighteen-Nation Disarmament Committee: Draft Nonproliferation 

Treaty, November 17, 1967,” Documents on Disarmament 1967, pp. 

572; see also ACDA Negotiating History, p. 81. (An undated U.S. 

document from the same period also explained to the government of Australia that the treaty would prohibit “[n]either uranium enrichment nor the stockpiling of fissionable material in 

connection with a peaceful program . . . so long as these activities 

were safeguarded under Article III. Also clearly permitted would 

be the development, under safeguards, of plutonium power reactors . . . .”) U.S. Government, undated “Aide Memoire to the Government of Australia” [declassified version], p. 2, para. 5. Admittedly, however, this response concerned only the scope of what 
378

activities would violate Article II of the NPT, and it is likely true 

that none of those activities constitute Article II problems if not 

undertaken for purposes of furthering nuclear weapons development. See Noncompliance Report, pp. 64-65 (setting forth U.S. standards for Article II compliance assessments). The undated U.S. 

document thus did not address whether or not these technologies fell within the ambit of the “right” discussed in Article IV.)

221. NPT, Preamble.

222. Quoted in ACDA Negotiating History, pp. 65-66.

223. U.S. Department of State, diplomatic cable entitled 

“Aide-Memoire on the Draft Non-Proliferation Treaty (NPT)” 

[declassified version], August 24, 1967, pp. 3-4.

224. See AFP, “UN Nuclear Chief Says Iran Should Stop Expanding Enrichment,” June 14, 2007; Associated Press, “Iran: No 

Halt to Enrichment,” May 25, 2007.

225. Vienna Convention on the Law of Treaties, May 23, 1969, 

1155 UNT.S. 331, Art. 18(a).

226. Ibid., Art. 32.

227. See Charter of Fundamental Rights of the European 

Union, Art. 54 (“Nothing in this Charter shall be interpreted as 

implying any right to engage in any activity or to perform any act 

aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than 

is provided for herein.”), available from www.europarl.europa.eu/

comparl/libe/elsj/charter/art54/default_en.htm; Universal Declaration of Human Rights, available from www.unhchr.ch/udhr/lang/

eng.htm, Art. 30 (“Nothing in this Declaration may be interpreted 

as implying for any State, group or person any right to engage in 

any activity or to perform any act aimed at the destruction of any 

of the rights and freedoms set forth herein.”).

228. Lawless v. Ireland (E.C.H.R., Series A, No.3), July 1, 1961, 

available from www.ena.lu/judgment_european_court_human_

rights_lawless_ireland_july_1961-020004456.html, at para. 7 of discussion of law.
379

229. See Principal Deputy Assistant Secretary of State Christopher Ford, “NPT Article IV: Peaceful Uses of Nuclear Energy,” 

Statement to the 2005 Review Conference of the Treaty on the 

Nonproliferation of Nuclear Weapons, New York, May 18, 2005, 

available from www.state.gov/t/vci/rls/rm/46604.htm (“NPT parties 

have the responsibility to implement Article IV in such a way 

that not only preserves NPT compliant parties’ right to develop 

peaceful uses of nuclear energy, but also ensures against abuse 

of this right by States Party pursuing nuclear weapons capabilities”).

230. “Statement by the United States High Representative 

(Hickerson) to the Ad Hoc Political Committee of the General Assembly, November 11, 1949,” Documents on Disarmament, 1945-

1959, pp. 225, 227.

231. Gilpatric Report, p. 3.

232. “Statement by the United States High Representative 

(Hickerson),” p. 227.

233. See ACDA Negotiating History, pp. 81, 84-86.

234. “Brazilian Amendments to the Draft Nonproliferation 

Treaty, October 31, 1967,” Documents on Disarmament 1967, p. 546.

235. See Zarate, pp. 247, 281, n.64 (quoting “Brazilian Amendments to the Draft Treaty on Nonproliferation of Nuclear Weapons,” ENDC/201/Rev.2, February 13, 1968).

236. In 1976, Wohlstetter observed that PNEs were “[t]he reduction to absurdity of the dichotomy” between “peaceful” and 

military uses. “These plowshares, in all essentials, are swords.” 

Wohlstetter et al., p. 46. More recently, Zarate has argued similarly that the PNE issue demonstrates the importance of the 

principle that “[w]hen the IAEA cannot effectively safeguard the 

nuclear material involved in an allegedly-peaceful application of 

nuclear technology, then the NPT does not protect the right of 

states to develop, access or use that allegedly-peaceful application of nuclear technology.” Zarate, p. 255.

237. See ACDA Negotiating History, pp. 52, 60, 81, 84-85, 104-
380

106, 124.

238. “Statement by the Department of State on Nonproliferation and Peaceful Nuclear Activities, February 20, 1967,” p. 97 

(emphasis added).

239. Quoted in ACDA Negotiating History, pp. 65-66.

240. NPT, Art.V (providing that the “potential benefits from 

any peaceful applications of nuclear explosions will be made 

available to non-nuclear-weapon States Party . . . [and that] Nonnuclear-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”).

241. After all, even with respect to PNEs, one ambassador 

centrally involved in crafting the NPT’s peaceful use provisions 

held out at least some hope that “technological progress” might 

“one day” “make it possible to distinguish clearly between nuclear explosives for peaceful and for warlike purposes.” ACDA 

Negotiating History, p. 65 (quoting Mexican representative).

242. See Cochran.

243. The IAEA Director General has made it clear that even 

the AP’s new authorities are inadequate to the challenges presented by IAEA verification activities in the face of the sort of 

denial and deception activities undertaken by Iran. In 2005, after 

two years of work to detail Iran’s covert nuclear program, the 

Director General of the IAEA called upon Iran to provide cooperation and transparency above and beyond that required by the 

AP. IAEA, “Implementation of the NPT Safeguards Agreement 

in the Islamic Republic of Iran,” GOV/2005/67, September 2, 

2005, para. 50 (“such transparency measures should extend beyond the formal requirements of the Safeguards Agreement and 

Additional Protocol”); See also IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement in the Islamic 

Republic of Iran,” GOV/2006/14 (February 4, 2006), at operative 

para. 1 (deeming it necessary for Iran to “implement transparency measures . . . which extend beyond the formal requirements 

of the Safeguards Agreement and Additional Protocol”).
381

244. IAEA, The Structure and Content of Agreements between 

the Agency and States Required in Connection with the Treaty on 

the Non-Proliferation of Nuclear Weapons, INFCIRC/153 (Corrected), June 1972, p. 9, para. 28, available from www.iaea.or.at/

Publications/Documents/Infcircs/Others/infcirc153.pdf.

245. Wohlstetter, p. 307; see also Fred C. Iklé, “After Detection—What?” Foreign Affairs, Vol. 39, No. 2, January 1961, p. 208.

246. Acheson-Lilienthal Report, p. 9.

247. Bergner letter, p. 2.

248. See Christopher A. Ford, “The Nonproliferation Bestiary: A Typology and Analysis of Nonproliferation Regimes,” 

New York University Journal of International Law and Politics, Vol. 

39, No. 4, Summer 2007, pp. 937, 955.

249. See Statute of the IAEA, Art. XII(C), available from

www.iaea.org/About/statute_text.html#A1.12 (“The inspectors shall 

report any noncompliance to the Director General who shall 

thereupon transmit the report to the Board of Governors. . . . The 

Board shall report the non-compliance to all members and to the 

Security Council and General Assembly of the United Nations.”).

250. Sokolski, “Nuclear Policy and the Presidential Election,” 

p. 10. He points out, for example, that while IAEA estimates it 

would take only 7-10 days to convert separated plutonium into 

nuclear weapon, the IAEA’s own detection goal is only to inspect 

facilities containing such material once a month. Sokolski, “Too 

Speculative?” pp. 122-123; Henry Sokolski, ed., Falling Behind: 

International Scrutiny of the Peaceful Atom, Carlisle, PA: Strategic 

Studies Institute, U.S. Army War College, 2008, pp. 3-62.

251. Sokolski, “Nuclear Policy in the Presidential Election,” p. 10.

252. Roberta Wohlstetter, “The Buddha Smiles: U.S. Peaceful Aid and the Indian Bomb,” Nuclear Policies: Fuel without the 

Bomb, Cambridge, MA: Ballinger, 1978, reprinted in Zarate and 

Sokolski, pp. 339-340.

253. Ibid., p. 349.
382

254. Ibid.

255. Acheson-Lilienthal Report, p. 47.

It will probably be necessary to write into the charter itself a systematic plan governing the location of the operations 

and property of the Authority so that a strategic balance may 

be maintained among nations. In this way, protection will be afforded against such eventualities as the complete or partial collapse of the United Nations or the Atomic Development Authority, protection will be afforded against the eventuality of sudden 

seizure by any one nation of the stockpiles, reduction, refining, 

and separation plants, and reactors of all types belonging to the 

Authority. . . . The real protection [against seizure] will lie in the 

fact that if any nation seizes the plants or the stockpiles that are 

situated in its territory, other nations will have similar facilities 

and materials situated within their own borders so that the act of 

seizure need not place them at a disadvantage.

256. Sokolski, “Nuclear Policy in the Presidential Election,” 

p. 10.

257. See Roberta Wohlstetter, “The Buddha Smiles,” pp. 339, 

341 (noting that “[t]he identification of civilian nuclear energy 

with economic progress is sometimes made in self-consciously 

symbolic terms with no pretense at hard economic argument, but 

merely as an invocation to modernity”).

258 . Roberta Wohlstetter, “The Buddha Smiles,” p. 341.

259. NPT/CONF.2005/WP.57, p. 3, para. 14.

260. 2005 Noncompliance Report, p. 80.

261. “Second Report of the United Nations Atomic Energy 

Commission to the Security Council,” pp. 97, 98, 131, 133 (emphasis added).

262. Acheson-Lilienthal Report, pp. 48-49.

263. Ibid., p. 17.
383

264. Nuclear Non-Proliferation Act of 1978, Public Law 95-

242 [H.R. 8638], 92 Stat. 120, March 10, 1978 (as amended by Public Law 99-661 [National Defense Authorization Act for Fiscal 

Year 1987; S. 2638], 100 Stat. 3816, November 11, 1986), at Title V, 

§ 503, available from www.nti.org/db/china/engdocs/nnpa1978.htm.

265. Nuclear Non-Proliferation Act of 1978, at § 2(2).

266. The WMD Commission described Title V as requiring 

“general and country-specific assessments of the relative merits 

of nuclear and non-nuclear energy sources for meeting the energy needs of developing nations.” WMD Commission Report, p. 

93; see also Sokolski, “After Iran.” The Commissioners, however, seem to have felt that the U.S. Government had failed to live 

up to the intent of Title V, and needed to do better. See WMD

Commission Report, p. 51 (recommending that the United States 

“implement Title V of the Nuclear Nonproliferation Act of 1978, 

which requires energy assessments for developing states”).

267. NPT/CONF.2005/PC.III/WP.22, p. 2.

268. Canada, Estonia, France, Republic of Korea, Poland, Romania, Ukraine, and United Kingdom, “Nuclear Power Development: Meeting the World’s Energy Needs and Fulfilling Article 

IV,” NPT/CONF.2010/PC.II/WP.40, May 9, 2008, available from 

daccessdds.un.org/doc/UNDOC/GEN/G08/612/88/PDF/G0861288.

pdf?OpenElement, p. 8.

269. Wohlstetter et al., p. 47.

270. Greenberg, p. 1.

271. Ibid., p. 18.

272. Weiss, “The Nuclear Nonproliferation Treaty.”

273. See Henry Sokolski, “Market Fortified Non-proliferation,” Jeffrey Laurenti and Carl Robichaud, eds., Breaking the Nuclear Impasse, New York: Century Foundation, 2007, pp. 81-143.

274. Gottemoeller and Arnaudo, pp. 15, 17-18.

275. Ibid., p. 18.
384
385

CHAPTER 12

ECONOMICS OF NEW NUCLEAR POWER

AND PROLIFERATION RISKS

IN A CARBON CONSTRAINED WORLD*

Jim Harding

INTRODUCTION

Climate change, growth in electricity demand, and 

persistently higher fossil fuel prices have reignited the 

debate over nuclear power and whether it is a safe or 

competitive resource inside the United States or internationally. Estimating the cost of a new U.S. reactor is a daunting exercise. The data base of advanced 

light water reactors underway or completed is small, 

almost entirely in Asia, and mostly accumulated in 

the 1990s—there has been significant real escalation 

in worldwide materials costs since 2002. The supply 

chain—key materials, components, skilled labor—is 

also extremely tight.

While the Japanese supply chain capacity is intact, 

U.S., Western European, and Russian industries have 

been largely moribund since the Three Mile Island and 

Chernobyl accidents. In the last several years, however, there has been a steep change. Utilities and vendors 

(nuclear system suppliers), both in the United States 

and abroad, have gone beyond computer models and 

extrapolation from Asian experience to real bids and 

real estimates.

____________

*A version of this article is available from www.npec-web.org/

Essays/20070600-Harding-EconomicsNewNuclearPower.pdf.
386

Risk is reflected in contract terms, the allocation spread 

between vendors and utilities is often opaque. The 

thinly traded uranium spot market has been volatile. 

Electricity markets have also changed, with respect to 

the structure, regulation, finance, and cost and availability of competing and emerging technologies.

We do face inevitable controls on carbon emissions 

sometime in the future, with nuclear power obviously 

benefitting, whether these controls take the form of 

taxes or cap-and-trade approaches. One question is 

whether such benefits will help the nuclear industry 

enough. 

To answer this question, we need to start by looking at probable construction or capital costs. This represents 80-90 percent of overall life-cycle cost. Other 

factors are important, including finance and capital 

cost recovery (debt, equity, taxes, and depreciation), 

net capital additions during operation, capacity factor, operating life, decommissioning cost, operations 

and maintenance, and fuel, including costs for waste 

management. This chapter presents two possible 

cases (high and low), and contrasts those results with 

estimates for other technologies under a range of possible carbon prices. It also offers some observations on 

possible worldwide growth rates for nuclear capacity, 

fuel cell requirements, and potential risks of weapons 

proliferation.

CAPITAL COST

To estimate the cost of new reactors in the United 

States, the best place to turn might be U.S. experience, 

but the data is old and not easy to interpret. Plants 

increased in cost at rates far exceeding general inflation.1

 The more plants we built, the more they cost, but 
387

that explanation is too simple—we had rising inflation 

and rising interest rates in the 1970s and 1980s, supply chain imbalances for key components and skilled 

labor, state and federal regulatory issues, design-asyou-build construction, siting and financing challenges, growing public opposition, and declining rates of 

electricity growth (see Figure 1). 

Figure 1. Capital Costs of U.S. Reactors Built 

between 1970 and 2000.

In the recent past, industry and government estimates 

for nuclear construction ranged from $1,500 to $2,100/

kilowatt (kW), expressed in various year dollars.2

 Recent bids and industry estimates, however, are far 

higher. In June 2009, the Ontario Power Authority declined two bids for two reactors from Atomic Energy 

of Canada (AECL) ($10,800/ kW) and Areva ($7,375/

kW). The latter was “non-conforming,” which presumably means that substantial risk of delay and cost 

escalation was placed on the utility. The Electricity 

Supply Commission of South Africa also declined to 
388

accept bids this year, the lowest of which was reportedly $6000/kW. 

A variety of studies have been conducted in recent 

years to test past government and industry estimates. 

In 2003, an MIT study rejected lower cost estimates 

as based on software estimates, rather than real construction experience, and for failing to include key 

owners’ costs, including land, construction oversight, 

and project contingencies. The report instead relied 

on estimates for recently completed (1993-2002) advanced light water reactors in Japan and South Korea. 

Overnight costs (a common convention), not including 

either escalation or interest during construction, are 

shown in Figure 2 at date of commercial operation in 

real 2002 dollars.3

 We have not included the South Korean units in computing the average because of lower 

South Korean labor rates, though the average exclusive of these units is provided in Figure 2. MIT, however, 

assumed that the Asian experience could be directly imported to the United States, and that there would be zero 

real cost escalation or delay for U.S. reactors. 

Figure 2. MIT Cost Estimates Based on

Light Water Reactors in Japan and South Korea.

Plant Megawatts

 Date of 

Commercial 

Operation 

(COD) Yen@COD 2002$s/kW 2007$s/kW

Onagawa 

3 825 Jan-02 3.14E+11 2409 3332 

Genkai 3 1180 Feb-94 3.99E+11 2643 3656

Genkai 4 1180 Jul-97 3.24E+11 1960 2711 

KK3 1000 Jan-93 3.25E+11 2615 3617

KK4 1000 Jan-94 3.33E+11 2609 3608

KK6 1356 Jan-96 4.18E+11 2290 3167

KK7 1356 Jan-97 3.67E+11 1957 2707 

Y5 1000 Jan-04 NA 1700 2352

Y6 1000 Jan-05 NA 1656 2290

Average 2354 3257 
389

The chart in Figure 3 provided by the Electric 

Power Research Institute shows recent cost trends 

for large U.S.-engineered projects. After a number of 

years with little or no real escalation in costs, the curve 

has steepened to roughly 4 percent real escalation per 

year, mainly driven by higher costs for steel, copper, 

concrete, and other materials. 

Figure 3. Cost Trends for Recent 

U.S.-Engineered Projects.

Some utilities believe that other indices (e.g., “heavy 

construction”) are more appropriate though yielding 

higher escalation rates (e.g., American Electric Power 

at 7.8 percent real through 2007).4

 See Figure 4.
390

Figure 4. Escalation Rates Based on 

Heavy Construction.

Cambridge Energy Research Associates (CERA) has 

also begun to compile a power plant capital cost index 

based on current worldwide transactions by utilities 

and vendors, as shown in Figure 5. A Reuters press report indicated that the nuclear cost increase estimated 

by CERA was 185 percent (i.e., nearly trebling) from 

2000 to 2008, or roughly 16 percent per year in nominal dollars. Escalation has been negative, however, for 

the past 18 months. 

Figure 5. CERA’s Worldwide Power Plant 

Capital Cost Index.

Commodity/Construction 

Material 

Avg. Annual 

Escalation from 

1986 to 2003 

Avg. Annual 

Escalation from 

December 2003 to 

April 2007

Last 40 Mo. 

Escalation at Ratio 

of Recent 

Historical Avg.

Nickel 3.8% 60.3% 15.9x

Copper 3.3% 69.2% 21x

Cement 2.7% 11.6% 4.3x 

Iron & Steel 1.2% 19.6% 16.3x 

Heavy construction 2.2% 10.5% 4.8x
391

The reasons for real cost escalation are extremely complex and difficult to predict. Some key factors include 

volatile materials prices, mostly traded in international markets; changing value of the dollar; strong demand for construction materials, especially in China 

and India; supply-chain imbalances and possible scarcity pricing for suppliers, sub-suppliers, engineeringprocurement-contracting (EPC) firms, and skilled labor; rising contingency insurance premiums, and/or 

hedging costs throughout the supply-chain; and poor 

or unsophisticated cost estimates from 2000-04.

In the 1970s, the usual utility practice was to get 

a bid for a new nuclear steam supply system (NSSS) 

from a vendor (then General Electric, Westinghouse, 

Combustion Engineering, Babcock & Wilcox, or General Atomics). The utility would typically hire an architect-engineer (e.g., Bechtel) to manage engineering 

design, procurement, and contracting. The current approach is different; utilities expect the vendors to hire 

architect-engineers and manage construction. Initially, vendors did this in the 1960s, delivering a turnkey 

(ready for operation) unit. While the projects being 

proposed today are turnkey in the sense that construction and procurement are managed by vendors 

instead of the utility, they are not turnkey in terms of 

being built for an initially agreed fixed price. 

While some vendors may be willing to bid some 

parts of the project at a fixed price, there is little evidence of vendors being willing to bid most of the 

project cost at a fixed price, or as a loss leader (sold 

at below cost to attract future business). Bids typically include elements that are “fixed” in cost; “firm,” 

meaning indexed to various escalators; and “variable,” meaning passed through at whatever the cost 

turns out to be. The range in cost estimates may be 
392

substantially explained by different levels of escalation risk borne by the vendor. Vendors’ bids are often 

not directly comparable; some may include some owners’ costs (e.g., cooling towers), while others do not. 

Greenfield (industrial project starting from scratch 

on virgin land) sites are likely to be more expensive 

than brownfield (industrial project involving conversion of a no-longer-in-use factility), and often require 

substantial investments in dedicated transmission. A 

substantial number of recent cost estimates involve 

confidentiality agreements that make a thorough outside assessment and comparative analysis difficult, if 

not impossible. 

Final completion cost is usually expressed in 

“mixed current dollars” at the date of commercial 

operation. Mixed current dollars is an unusual term. 

Investments are made in then current dollars, but they 

accrue interest from that date forward until commercial operation begins. So an investment in 2008 is in 

2008 dollars, but it accumulates interest until the plant 

is complete. An investment in 2012 on the same plant 

is in 2012 dollars, but it was exposed to inflation and 

real escalation from 2008 to 2012, producing a sum 

which may be higher or lower than a 2008 investment 

with interest. When the plant enters service, its completion cost is the sum of early investments with interest and little inflation or escalation, plus later investments with inflation and escalation, but little interest. 

In the rare (if not unimaginable) case that real escalation and real interest costs are exactly zero, overnight 

cost equals final completion cost.

It is also possible and highly desirable, though uncommon, to state completion cost in real (discounted) 

constant year dollars, including real interest and real 

escalation during construction. This makes it possible 
393

to directly compare project estimates for completion 

in 2015 with those scheduled for 2020, which is otherwise a laborious task, mainly involving deconstructing cash flows, assumptions regarding interest during 

construction, real escalation during construction, and 

project contingencies.

Florida Power & Light (FP&L) recently filed testimony before the state Public Service Commission, with 

costs derived from the Tennessee Valley Authority’s 

(TVA) 2005 estimate for new units at the nuclear plant 

site in Bellefonte, Alabama. The vendor’s engineeringprocurement-contracting cost estimate for Bellefonte 

was given as $1611/kW in 2004 dollars, not including 

owners’ costs. FP&L escalated the Bellefonte values 

using a range of escalation rates and contingency assumptions, plus owners’ costs.

The utility’s overnight cost estimates, in 2007 dollars, included a low case estimate of $3108/kW, midcase of $3600/kW, and high case of $4540/kW. The 

FP&L analysis includes $200-$250/kW in transmission integration (hooking into the regional grid) costs 

(see Figure 6).

Figure 6. Transmission Integration Costs.

Figure 7 shows real and expected escalation rates 

used by various organizations for recent past escalation, and for estimating future escalation. 

Source $/kW overnight cost 

Keystone (2007) 2950 

Constellation Energy (2008) 3500-4500 

Eskom (South Africa, 2009) 6000 

FP&L (2008) 3108-3600-4540 

Duke Energy (2008) 5000 
394

Figure 7. Overnight Cost (2007 Dollars,

Including Real Escalation/Interest 

During Construction).

In general, there is little reason to think that escalation rates for nuclear power would be any lower, and 

could be substantially higher than for other generating 

resources. Long construction periods and high capital 

intensity exacerbate this problem. There is a spectacular difference between zero, 4 percent, and 14 percent 

per year cost escalation, especially for long lead time 

projects. See figures 8 and 9.

Figure 8. Levelized Cost of Energy (2007 Cents/Kwh,

Including Interest and Operating Costs).5

Figure 9. Real Escalation Percentages by Year.

Source 2004-2007 

nominal 

2004-2007 real Future Basis

Keystone 6.0 % 3.3% 0-3.3% real Chemical plant

AEP 10.5 % 7.8% NA Heavy 

construction 

CERA 16 % 13.3% NA Utility 

generation 

FP&L 10.7-20.7 % 8-18% 1-2% real Construction 

indices 

 

Real 

escalation 

0%/year 4%/year 8%/year 14%/year

Medium case $4050/kW $5400/kW $7130/kW $9050/kW 

High case $4540/kW $6050/kW $8000/kW $10150/kW

Real 

escalation 

0%/year 4%/year 8%/year 14%/year

Medium case 10.7 13.4 16.9 20.7

High case 11.7 14.7 18.6 23.0

 
395

CONSTRUCTION TIME, LEAD TIME, AND 

DATE OF COMPLETION

It is very difficult to determine whether real cost 

escalation will continue into the future, and it clearly 

affects all generating options, though it is most acute 

for capital intensive resources. As described earlier, 

nuclear power faces some specific supply-chain challenges that argue against a low number. Twenty years 

ago, the United States had about 400 suppliers and 900 

nuclear or N-stamp certificate holders (subsuppliers) 

licensed by the American Society of Mechanical Engineers. The numbers today are 80 and 200.6

Worldwide forging capacity for pressure vessels, 

steam generators, and pressurizers is limited to two 

qualified companies—Japan Steel Works and Creusot 

Forge—and the reactors’ builders will be competing 

with each other as well as with simultaneous demand 

for new refinery equipment. Japan Steel Works prices 

have increased by 12 percent in 6 months, with a new 

30 percent down payment requirement.7

Other long lead-time components, including reactor cooling pumps, diesel generators, and control 

and instrumentation equipment have 6-year manufacturing and procurement requirements. In the near 

term, reliance on foreign manufacturing capacity 

could complicate construction and licensing. Nuclear 

Regulatory Commission (NRC) Chairman Dale Klein 

recently indicated that reliance on foreign suppliers 

would require more time for quality control inspections to ensure that substandard materials are not incorporated in U.S. plants.8

Skilled labor and experienced contractors present 

another problem. A recent study by GE-Toshiba identified a potential shortage of craft labor within a 400-
396

mile radius of the Bellefonte site, forcing the adoption 

of a longer construction schedule.9 Other sources have 

pointed to the potential for skilled labor shortages if 

nuclear construction expands.10

Several of these problems have clearly surfaced 

at the Olkiluoto 3 site in Finland, where the French 

vendor Areva is building a 1,600 megawatt advanced 

European pressurized reactor (EPR). Areva originally 

estimated a 4-year construction period, but the plant 

has fallen 18 months behind schedule, and is substantially over budget. Analysts estimate that Areva’s 

share of the loss on the turnkey contract will exceed 

$1 billion. Concrete poured for the foundation of the 

nuclear island was found to be more porous than the 

Finnish regulator would accept. Hot and cold legs of 

the reactor cooling system required reforging.

At a recent conference in Nice, Areva official Luc 

Oursel indicated that the company had underestimated what it would take to reactivate the global supply 

chain for a new nuclear plant. In particular, they were 

not “100 percent assured to have a good quality of 

supply,” were not sufficiently familiar with the “specific regulatory context” in Finland, and began building without a complete design. Some 1,360 workers 

from 28 different nations are now at work at the site. 

The project manager for STUK, the Finnish regulator, 

added that “a complete design would be the ideal. But 

I don’t think there’s a vendor in the world who would 

do that before knowing whether they would get a contract. That’s real life.”11 

The industry believes that standardization and 

“learning curves,” coupled with resolving supply 

chain imbalances, will drive costs lower over time. 

But there are chicken-and-egg problems with this 

conclusion. Utilities may not order new plants and 
397

equipment if capacity is limited and costs are uncertain. Suppliers may not expand production capacity 

if orders are not immediately forthcoming. As suggested in the comment above, vendors may not be 

willing to complete engineering designs before contracts are awarded. Moreover, given the structure of 

the U.S. utility industry, learning curves may be hard 

to achieve, with different utilities in different parts of 

the country considering standardized but different reactor designs.

The French experience most strongly suggests that 

rapid construction is best achieved with one utility ordering one basic design at a steady rate, keeping vendors, subsuppliers, and construction crews operating 

near capacity and able to move smoothly from one 

project to the next.12 That model of single government 

vendor, coordinated procurement, and single government utility is rare, if not unique and unavailable, in 

today’s world. 

Market and regulatory issues also play a role. In 

most restructured U.S. markets, utilities would not be 

able to “rate base” new nuclear generation, and would 

instead need to rely on sales in the wholesale market, 

where trades are often thin, unpredictable, and short 

in duration. Plants built in that environment would 

have a very unfavorable financing structure (e.g., 70 

percent equity and 30 percent debt).

In more traditional markets, utilities will probably 

be required to prepare integrated resource plans, comparing all supply and demand side options, including 

utility and nonutility owned generation. The utility 

might then be required to run a competitive procurement process that could include utility-owned nuclear 

generation. Regulators will probably consider cost 

caps, and/or annual prudence reviews, as a condition 
398

of final approval. Some states may take a more supportive and proactive position, for example by permitting utilities to recover construction work in rate 

base despite near-term rate impacts.13 In other states, 

charging costs to customers before the plant came into 

service would not be acceptable or consistent with 

current law.14

The MIT study assumed a financial structure of 50 

percent debt (at 8 percent) and 50 percent equity (at 15 

percent), including a modest equity risk premium (3 

percent) for a new nuclear plant. Those assumptions 

are reasonable for an investor-owned utility able to access rate base. However, a recent report by Moody’s 

indicates that virtually any utility planning to build a 

large nuclear plant would almost inevitably face a rating downgrade, increasing the cost of money during 

construction.15 

The 2005 National Energy Policy Act included several subsidies to jump start low carbon emission resources, the most important of which involved federal 

loan guarantees. In May 2007, the Department of Energy (DoE) released a second draft of its loan guarantee rules. The draft rule provides for the federal government to guarantee 90 percent of the debt, so long 

as the amount does not exceed 80 percent of the total 

project cost. DoE also indicated that it was considering a significant minimum equity stake on the part of 

any developer, and that guarantees should be limited 

to five projects that use the same technology.

Three features of the program diminish its value: 

first, the government-backed debt cannot be stripped 

from the total debt; second, the nonguaranteed fraction of debt is subordinated to the covered fraction; 

and finally, DoE’s fiscal 2008 budget proposes $9 billion in total loan guarantees of which $4 billion would 
399

be allocated to nuclear plants and coal with carbon 

sequestration. A banker contacted by the trade journal 

Nucleonics Week commented that the first two features 

devalue the debt from a possible AAA rating to “single B or double D.”16 Four billion dollars in loan guarantees also might cover only one or two new units. 

In general, most prospective nuclear builders regard these provisions as potentially valuable, but uncertain, unlikely to be sustained over the long term, 

and not a tipping point for a nuclear investment. Finally, it is important to emphasize that government 

subsidies do not reduce the cost of nuclear power; they 

spread risk and cost to taxpayers and reduce prices to 

ratepayers. 

Interest during construction depends on several 

key factors—duration of construction, shape of outlays, the debt to equity ratio, and returns on both debt 

and equity. The U.S. Energy Information Administration assumes a 6-year construction period for a new 

reactor. Some vendors believe it can be done in 4 years. 

The MIT base case was 5 years.

OPERATING, MAINTENANCE, AND 

FUEL COSTS

One of the most important parameters affecting lifecycle cost is reactor performance, or capacity factor. U.S. average nuclear capacity factors have 

increased from below 60 percent during most of the 

1980s to nearly 90 percent in the post-2000 period.17

Some of the increase is attributable to changes in technical specifications for equipment to operate within 

a wider range and to higher fuel enrichments. The 

first reduces the number of equipment related reactor 

trips and shutdowns. The second reduces the number 
400

of refueling outages. It may also be true that outages 

are more frequent in early years (“teething”) and later 

years (“aging”). A reasonable lifetime range for future 

units is 75 to 85 percent.

Advanced light water reactors may have lower 

operations and maintenance costs than current units, 

based on the use of more passive safety systems. Including capital additions (essentially capitalized operations and maintenance), the current U.S. average is 

about $100-$120/kW-year, inclusive of administrative 

and general (essentially pension and insurance) costs. 

There is no recent history of real escalation in the value, and it is probably appropriate for both a low and 

high estimate. 

Nuclear fuel costs have many components—uranium mining and milling, conversion to UF6, enrichment, reconversion, fuel fabrication, shipping costs, 

interest costs on fuel in inventory, and spent fuel 

management and disposition. The 2003 MIT study 

calculated a 5 mill (half a cent) per kW hour cost for 

all these steps, based on then-current uranium prices 

of $13.60/pound (lb). Spot market prices for uranium 

in early June 2007 were $135/lb, tripling since October 

2006. The reasons for the price increase are somewhat 

complicated. They are now about $44/lb.

Uranium prices have been volatile over the past 3 

decades. Real spot prices almost sextupled from 1973 

to 1976, then dropped steeply through 2002, but have 

risen dramatically since that time. The problem is not 

declining physical supplies of uranium, cost of production, or growth in demand for nuclear fuel. The 

key problem is that much uranium demand over the 

past 2 decades has been met by inexpensive “secondary supplies,” including surplus inventories from cancelled or shut-down units (1980s-1990s) in the United 
401

States, Western Europe, and Russia; purchase of surplus Russian and U.S. Government stockpiles (mid1990s); and diluting highly enriched uranium from 

surplus Russian nuclear weapons (1998-2013) with 

natural uranium.

Worldwide uranium production is about 60 percent of current uranium demand.18 Existing spot uranium prices clearly support enhanced production, 

both in the United States and abroad, but lead times 

for new mines are long. The same situation applies to 

enrichment. Uranium mining expansion will need to 

be better than 1980s rates of expansion to meet 2015 

demands, particularly with limited enrichment capacity worldwide.

 Nuclear plant owners and utility customers are not 

currently facing strikingly higher fuel prices, mainly 

because current contracts were written during a period of surplus and include price ceilings. The same 

basic situation applies to enrichment cost and supply. Most current long-term contracts expire by 2012, 

and secondary supplies decline rapidly during that 

period. The price ceilings in long-term contracts also 

mean that those parties that might pursue new mines 

or enrichment plants have not benefited substantially 

from price signals in the spot market. It also means 

that utilities with uranium and enrichment contracts 

largely expiring in 2012-13 must enter the market this 

year or next to ensure adequate supplies in the future. 

 Assuming current prices for uranium and enrichment ($44/lb and $160/kgSWU), nuclear fuel cycle 

costs are about twice the amount calculated in the 

MIT analysis. While these price increases are dramatic, they do not justify reprocessing to recover plutonium from spent fuel for subsequent recycling as 

mixed oxide fuel (MOx) in light water reactors. The 
402

2003 MIT study compared this choice with $13.60/lb 

uranium and $100/kgSWU enrichment prices. This 

yielded a 5 mill/kWh fuel price; using very conservative estimates for reprocessing and mixed oxide fuel 

fabrication yielded closed cycle fuel costs that were 

more than a factor of four higher. With $2000/ton reprocessing and $1500/kg mixed oxide fuel prices, a 

closed fuel cycle costs about twice the MIT value, or 

4.3 cents/kWh.

CARBON CONSTRAINTS

With carbon constraints (specified as taxes or a 

cap-and-trade approach), nuclear power’s competitive position improves. Standard & Poor’s (S&P) recently released an economic analysis on the sensitivity of electricity generation technologies to carbon 

controls.19 Only plant—rather than full fuel cycle—

emissions were considered. The base case capital cost 

estimate for nuclear power was $4000/kW, which is 

generally in line with the values calculated here. Operations and maintenance (O&M) costs were in line 

with the values calculated here, but the nuclear fuel 

price was estimated at 0.7 cents/kWh—roughly 2-3 

times too low. The price of natural gas was estimated 

at $7 per million British thermal unit (BTU).

Coal price estimates ranged from $1-$1.80 per million BTU for Wyoming and eastern coal respectively. 

Direct comparison with the values calculated here 

can be somewhat tricky, mainly because S&P does 

not show all financial assumptions (see Figure 10). 

The first row of bold numbers shows internal costs, 

without carbon capture or taxes. The second bold row 

shows costs with carbon capture and sequestration, 

and the final bold row shows costs with carbon credits 
403

or taxes of $10-$30/ton. As shown, nuclear power has 

only a modest advantage over coal (either pulverized 

or integrated gasification combined cycle [IGCC]) if 

carbon sequestration is required. It is significantly less 

competitive with carbon taxes or credits, if they are 

available in a range of $10-$30/ton of CO2

. 

Figure 10. Comparison of Prices of 

Various Energy Sources.

Standard & Poor estimates for carbon capture appear pessimistic, and for pulverized coal, unrealistic. 

A recent International Energy Agency (IEA) analysis 

Pulverized 

Coal 

Gas 

CCCT 

Western 

IGCC 

Wind Nuclear

Capital Cost 

($/kW) 

2438 700 2925 1700 4000

Capacity Factor 

(%) 

85 65 80 33 85

Fixed O&M 

($/kW-yr) 

45 20 60 25 100

TonsCO2/MWh 0.87 0.37 0.94 NA NA 

Total cost 

(cents/kWh)

5.8 6.8 6.5 7.1 8.9-9.8i

Carbon Capture 

Capital Cost 

($/kW) 

940 470 450 NA NA

Energy penalty 

(%) 

25 13 15 NA NA 

TonsCO2/MWh 0.09 0.04 0.09 NA NA

Cost for capture 

and sequestration 

(cents/kWh) 

6.2 2.8 3.6 NA NA 

Total cost 

(cents/kWh)

12.0 9.6 10.1 7.1 8.9-9.8 

Total cost with 

carbon credits at 

$10-30/ton 

6.2-7.9 7-7.7 6.5-8.4 7.1 8.9-9.8

 

 

i

. The higher value uses the fuel cost estimate provided above. 
404

of new and existing energy technologies found incremental costs ranging from 2-3 cents/kWh, depending 

on the fuel (natural gas or coal) and technology used. 

The IEA values for gas and coal IGCC are only slightly below S&P estimates, while the values for pulverized coal are less than half the S&P estimate, driven 

mainly by a much lower estimate for efficiency loss. 

The reasoning behind the pulverized coal analysis is 

not clear.

Technologies under development might reduce 

these values to 1.5-2.25 cents/kWh, not including CO2

transportation and storage (both relatively minor elements). They also do not take credit for possible beneficial use of the carbon dioxide in enhanced oil recovery. For example, at 0.1-0.5 metric tons of oil per ton of 

CO2 injected, the credit would range from $30 to $160 

per ton of CO2

, substantially diminishing, and perhaps offsetting entirely, costs for capture, transport, 

and storage.20 Finally, if carbon is taxed or credits are 

available for $10-30/ton in national or international 

markets, coal and gas plant developers may pursue 

projects without carbon sequestration. This implies 

that other carbon mitigation options—throughout the 

economy—may be cheaper than sequestration.

It is important to add that costs for all these technologies can vary widely from nation to nation based 

on market structure, degree of government involvement (e.g., subsidies or nationalized grid), and access 

to gas or wind resources. In summary, at foreseeable 

levels of carbon taxes or cap-and-trade credit approaches ($10-30 per ton of CO2

), nuclear power may 

be advantaged, but not to the point where it is a compelling choice.

Princeton scientists Stephen Pacala and Rob Socolow have proposed the concept of “stabilization 
405

wedges” for coping with the climate change problem 

for the next 50 years with current technologies.21 Pacala and Socolow proposed 15 possible wedges covering 

all sectors of the economy, including agriculture, deforestation, electricity generation, transport efficiency, 

and fuel supply, among others. Full implementation 

of seven wedges—or a larger number of partial wedges—would be needed to stabilize atmospheric concentrations of CO2

 at 500 parts per million—a little less 

than twice pre-industrial levels (280 ppm). One of the 

possible wedges involved worldwide expansion of 

nuclear power, essentially doubling current capacity 

from 370 gigawatts (GWe) to 700 GWe over the 50-

year period.

The authors assumed that this capacity would displace efficient coal generation. Over the same period 

of time, essentially all existing reactors will be retired, 

so that 1,070 GWe must be built to achieve a wedge. A 

42-year projection expressed in megawatts (one gigawatt equals 1,000 megawatts) is shown in Figure 11.

Figure 11. Required Nuclear Reactors to Support 

Full-Spectrum CO2

 Reduction.
406

A number of nuclear fuel cycle facilities would either 

be required, or need to be considered.22 

• 23 new centrifuge enrichment plants the size of the 

proposed American Centrifuge Plant in Piketon, Ohio;

• 18 new fuel fabrication plants;

• 10 new repositories the size of the proposed Yucca 

Mountain facility in Nevada; and,

• 36 new spent fuel reprocessing plants, if all spent 

fuel were reprocessed.

In addition, if fuel is reprocessed and fabricated into 

a mixed oxide for use in reactors, a large number of 

mixed oxide fuel fabrication facilities would be required. The design capacity of the UK Sellafield mixed 

oxide fuel fabrication plant was 120 tons of heavy metal per year, but 40 tons/year appears to the achievable 

limit. Potentially, several hundred Sellafield-sized 

mixed oxide fabrication plants would be required to 

support extensive worldwide use of plutonium fuel.23

Pacala and Socolow did not directly examine 

the question of whether 1,070 GWe of nuclear capacity and associated fuel cycle facilities could be built 

over 50 years. National and international forecasts of 

future nuclear capacity typically do not go beyond existing utility planning horizons of 10-20 years. 

A recent analysis by the IEA (World Energy 

Outlook, 2006) estimates that global nuclear capacity 

in their “Reference” scenario would grow from current levels (about 370 GWe) to 415 GWe by 2030. This 

implies a net rate of growth of about 2 GWe per year, 

and is based on optimistic capital ($2000-$2500/kW 

construction cost) availability and lifecycle costs (4.9-

5.7 cents/kWh). It assumes that existing government 

policies remain largely unchanged. (See Figure 12.)
407

Figure 12. Projected Electrical Generating Costs by 

Source under Present Policies.

The World Energy Outlook also includes an “Alternative Policy” scenario, with widespread efforts to 

combat global warming and encourage new nuclear 

construction. This leads to a global capacity of 519 

GWe in 2030, for a net growth rate of about 6.5 GWe 

per year. As Figure 13 shows, growth rates much 

higher than 2-6.5 GWe per year have been sustained 

in the past. The circumstances were different—higher 

estimated rates of growth in demand, substantial margin between estimated cost of nuclear power and alternatives (mainly limited to coal and oil at that time), 

and greater industrial capacity. It is also not clear that 

the rate of peak additions was sustainable at the time. 

Additions since 1996 have been at less than 0.5 GWe 

per year.
408

Figure 13. Growth of World Nuclear Energy 

Capacity, 1956-2005.

IEA’s World Energy Outlook 2006 acknowledges 

several important challenges facing any nuclear scaleup: “The expansion of nuclear capacity may, however, 

face several constraints, such as limits to global capacity to build major components of nuclear power plants, 

for example pressure vessels and valves, especially 

for very large reactors. Similar to other industries, 

short-term constraints that may limit new construction include the cost of raw materials, the difficulty of 

finding engineering, procurement, and construction 

contractors and the shortage of key personnel.”

In the IEA Reference scenario, nuclear capacity 

increases at 0.7 percent per year, compared with estimated worldwide electricity demand growth of 2.6 

percent per year, so nuclear power’s share of genera-
409

tion drops from about 15 to 10 percent. The largest 

drop occurs in the Organization for Economic Cooperation and Development (OECD) Europe—from 28 to 

12 percent in 2030. This does not necessarily mean that 

OECD Europe CO2

 emissions increase; seven of the 10 

largest markets for wind generation are in Europe—

the 27 member European Union (EU) accounted for 

65 percent of global wind capacity at the end of 2006. 

Most of the decline is driven by reactor phase-outs 

(rather than retirements) planned in Germany, Sweden, and Belgium. Increases are projected for China, 

Japan, India, the United States, Russia, and Korea. 

Most strikingly, of the net global increase of 48 GWe, 

47 GWe occurs outside the OECD (including Japan 

and Korea) and Russia, that is, in China, India, other 

Asian nations, the Middle East, and Latin America.

In the Alternative Policy case, OECD Europe reactor phase-outs remain in place, but are deferred 10 

years. Nuclear power share of total electricity demand 

in the OECD stays constant, with Pacific and North 

American increases offset by European declines. Developing country additions are significant—74 GWe 

of net additions, 90 percent of which occur in China 

and India. These additions result in nuclear’s share of 

total generation rising from 2 to 6 percent in China 

and 2 to 9 percent in India, relative to 2005. The report 

adds that China has set a target to build 40 GWe of 

nuclear capacity by 2020, though an earlier target of 20 

GWe by 2010 will not be met. In addition, while India 

announced in May 2006 a new target of 40 GWe nuclear by 2030, India’s record of meeting targets is poor. 

The 10 GWe by 2000 target, set in 1984, was missed by 

a factor of four.

Similarly, while Russia has announced ambitious 

plans to complete 10 GWe of new nuclear capacity by 
410

2015, there are many infrastructure challenges associated with this target. Russia has increased nuclear 

generation by 3 GWe since 1991. In addition to supply-chain challenges like those in the United States, 

nuclear power rates are much lower than for fossilfired generation, leaving the industry without sufficient funds to complete new reactors on schedule.

The U.S. Energy Information Administration (EIA) 

also forecasts global electricity demand, and projected nuclear capacity by nation and region. Estimates 

for 2030 generally fall between IEA’s Reference and 

Alternative Policy scenarios, with a total of 481 GWe 

projected for that year. Europe falls off less steeply; 

OECD Asia expands less quickly, primarily because 

of lower estimated growth in demand; U.S. capacity 

rises from 100 GWe in 2004 to 113 GWe in 2030 (see 

Figure 14). 

Figure 14. Three Projections of World Nuclear 

Energy Capacity to Year 2030.
411

The short story is that between 2007 and 2030, forecasts 

for OECD plus Russia show almost no net growth in 

nuclear capacity. Retirements are roughly offset by 

additions. In base cases, 72-100 percent of net growth 

occurs elsewhere, mainly in India and China. Even so, 

by 2030, nuclear represents only 3-6 percent (from 2 

percent today) of electric generation in those two nations. By 2030, net additions are at best about 1/7th of 

the nuclear wedge.24 In IEA’s Alternative case, with 

delayed retirements in Europe, about 20 percent of the 

wedge is completed by 2030. The pace of scheduled 

retirements quickens rapidly in the ensuing years, 

however, requiring more than a quadrupling of annual additions to achieve a full wedge by the late 2050s.

 Stated differently, it is extremely difficult to 

achieve a full nuclear wedge by the late 2050s, and 

may be impossible without expanding nuclear power 

to a very large number of nations that are short on internal capacity (e.g., Vietnam, Indonesia, Egypt, Saudi 

Arabia, Iran, Nigeria, Turkey, Mexico, Venezuela, Yemen), which includes a problematic safety culture. 

Many may want bulk fuel handling facilities (enrichment and perhaps reprocessing and mixed oxide fuel 

fabrication), which would pose enormous risks of 

weapons proliferation. Neither the Non Proliferation 

Treaty, as currently interpreted, nor the International 

Atomic Energy Agency (IAEA) safeguards regime, as 

currently implemented, are capable of meeting this 

challenge. 

CONCLUSION

In light of these analyses, what is likely? In the 

near term, utilities, vendors, subsuppliers, uranium 

miners, and enrichment plant operators, among oth-
412

ers, are caught in a classic chicken and egg problem. 

Do utilities dare order now if capacity does not exist; 

do vendors expand now if orders are not in existence? 

Between now and 2030, some increase in the U.S. nuclear industry appears probable, given life extensions 

of existing capacity, high fossil fuel prices, uncertain 

costs for carbon capture and sequestration technologies, and the incentives or subsidies in the National 

Environmental Policy (NEP)Act of 2005. That increase 

in capacity, however, is likely to be quite modest, even 

in the face of significant, and politically difficult, controls on carbon. Other resources—including coal with 

purchase of carbon credits, wind, efficiency improvements, gas, and, perhaps, other emerging renewables 

are broadly competitive.

Internationally, the situation is perhaps more complicated. Clearly we will have new net capacity additions in Asia, particularly in India and China. Many 

other nations (e.g., Vietnam) have expressed interest 

in new nuclear capacity. But expressions of interest do 

not necessarily imply sufficient domestic capacity to 

pursue this option, or vendor willingness to invest the 

time and money to pursue it.

Infrastructure in the major nuclear nations—

France, the United States, Russia, Germany, and the 

UK—has fallen off steeply since Three Mile Island and 

Chernobyl. French confidence and expertise led to a 

relatively inexpensive turnkey contract with Finland, 

but it is certainly not a money-maker and could be a 

major loss leader. Vendors, in general, have less capacity for absorbing losses than utilities.

In essence, the most likely case is that U.S. net 

nuclear capacity will rise very slightly over the next 

15 years. EU nuclear capacity will in all likelihood 

fall. Growth in China and India will be significant, 
413

but may also fall short of either EIA or IEA expectations, primarily because both use extremely optimistic 

cost estimates. After 2030, the problem becomes more 

complicated, because the pace of nuclear retirements 

accelerates. But it is also difficult to predict the future 

of other low carbon emitting technologies 20 years 

hence. All will benefit from carbon controls, and it is 

not at all clear that nuclear power will reemerge as an 

economically attractive resource worldwide.

One can only get to that conclusion by assuming 

that near-term orders will be driven by major orders 

in India and China that lead to infrastructure expansion worldwide; that this expansion alleviates supplychain imbalances in key equipment, contractors, and 

crews; that the expansion can respond successfully to 

a huge ramp-up to replace existing capacity after 2020; 

and that the expansion is not eclipsed by improvements in energy efficiency and renewables in the interim. 

ENDNOTES - CHAPTER 12

1. Jonathan Koomey and Hultman Nate, “A Reactor-Level 

Analysis of Busbar Costs for U.S. nuclear plants, 1970-2005,” Energy Policy, 2007.

2. This covers the range estimated in studies by the University of Chicago and MIT, as well the U.S. Energy Information Administration estimate for advanced U.S. light water reactors.

3. John Deutch and Ernest Moniz et al., The Future of Nuclear 

Power—An Interdisciplinary MIT Study, Washington, DC: MIT, 

2003.

4. American Electric Power, Nickel, Copper—London Metal 

Exchange; Cement, Iron, Steel & Heavy Construction, Washington, DC: U.S. Bureau of Labor Statistics.
414

5. Early year costs can be substantially higher in real dollars 

than life cycle levelized costs.

6. “Supply Chain Could Slow the Path to Construction, Officials Say,” Nucleonics Week, February 15, 2007, Comments by Ray 

Ganthner of Areva.

7. Ibid.

8. Ibid.

9. “GE/Toshiba, Advanced Boiling Water Reactor Cost and 

Schedule at TVA’s Bellefonte Site,” August 2005, pp. 4.1-2, 4.1-23.

10. “A Missing Generation of Nuclear Energy Workers,” 

NPR Marketplace, April 26, 2007; “Vendors Relative Risk Rising 

in New Nuclear Power Markets,” Nucleonics Week, January 18, 

2007, available from marketplace.publicradio.org/shows/2007/04/26/

PM200704265.html.

11. “Lack of Complete Design Blamed for Problems at Olkiluoto 3,” Nucleonics Week, May 17, 2007”; Areva Official Says Olkiluoto 3 Provides Lessons for Future Work,” Nucleonics Week, May 

3, 2007.

12. Jim Harding, Caro Nucleare, Toscany, Italy: Amici della 

Terra, 1984.

13. Florida and South Carolina have adopted legislation that 

permits recovery of annual construction costs in current rates following an annual prudence review. 

14. Many public utility commissions cannot by statute include investment expenses in rates until the underlying resource 

is “used and useful.” 

15. Jim Hempstead, “New Nuclear Generation: Ratings Pressure Increasing,” Moody’s New Nuclear Generation, June 2009.

16. “DOE’s Loan Guarantee Proposal Raises Questions About 

Viability,” Nucleonics Week, May 17, 2007. Production tax credits 

of 1.8 cents/kWh, for 8 years are also available for low emissions 
415

technologies, though these benefits do not start until commercial 

operation. 

17. MIT, “The Future of Nuclear Power,” 2003; and Joskow, 

“Future Prospects for Nuclear-A U.S. Perspective,” Presentation 

at University of Paris, Dauphine, France, May 2006.

18. Dr. Thomas Neff, “Dynamic Relationships Between Uranium and SWU Prices: A New Equilibrium, Building the Nuclear 

Future: Challenges and Opportunities,” Cambridge, MA: Center 

for International Studies, MIT, 2006.

19. “Which Power Generation Technologies Will Take the 

Lead in Response to Carbon Controls?” Standard & Poor’s Viewpoint, May 11, 2007.

20. Energy Technology Perspectives in Support of the G8 Plan of 

Action—Scenarios and Strategies to 2050, Paris, France: International Energy Agency, 2006.

21. Stephen Pacala and Robert Socolow, “Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies,” Science, August 13, 2004, Vol. 305., No. 5686, 

pp. 968-972.

22. These calculations were performed by Tom Cochran, senior scientist and nuclear program director, Natural Resources 

Defense Council, in connection with a Keystone Center joint factfinding effort examining the future of nuclear power. See Keystone Center Nuclear Power Joint Fact-Finding, June 2007, available from keystone.org/files/file/about/publications/Final...

23. The French Melox mixed oxide fuel fabrication plant is 

licensed for 170 tons of fuel production per year.

24. Seven full wedges are needed over 50 years to stabilize 

atmospheric concentrations of CO2

 at twice pre-industrial levels.
416
417

PART VI

WITHDRAWING FROM AND ENFORCING 

THE NPT—ARTICLE X
418
419

CHAPTER 13

LOCKING DOWN THE NUCLEAR 

NONPROLIFERATION TREATY*

Henry Sokolski and Victor Gilinsky

The Nuclear NonProliferation Treaty (NPT) is no 

longer adequate to stop member countries from pursuing nuclear weapons. One of the treaty’s more distressing inadequacies is that it is too easy for countries 

who signed the NPT to leave it, à la North Korea. 

As a way of strengthening the NPT, the United 

States must insist that North Korea is still obligated 

by the treaty, and do the same for Iran if Tehran attempts to leave the NPT. President Barack Obama 

recently spoke of the NPT’s importance, as has every 

President since Lyndon B. Johnson who signed the 

treaty in 1968. Yet they have all, to a lesser or greater 

degree, weakened the treaty through lax enforcement, 

by carving out exceptions for certain countries, or by 

just ignoring it. We have come to the point now that 

North Korea, which signed the treaty in 1985, is now 

mocking it. And in all the discussions over a possible 

Iranian bomb, no one seems to think the treaty’s 90-

day withdrawal clause would be much of a hurdle if 

Tehran decided to leave the NPT.

If President Obama really wants to strengthen the 

treaty, a good—and necessary—place to start is to 

make it much more difficult for any of the 189 member 

____________

*Originally published in the Bulletin of Atomic Scientists, 

June 17, 2009, available from www.thebulletin.org/webedition/op-eds/locking-down-the-npt.
420

states to leave the NPT. It is at odds with the NPT’s 

purpose to allow a country to import or develop technology under the treaty’s cover and then walk away 

from it to make bombs. At a minimum, before legally 

exiting the treaty, a country should have to clear its 

NPT obligations by returning whatever it got from 

others acting on the understanding that the departee 

was a good-faith treaty member.

The background of the North Korean bomb is instructive. The International Atomic Energy Agency 

(IAEA), of which the United States is the most prominent member, allowed North Korea to drag out its obligation to undergo a thorough initial IAEA inspection 

within 18 months of signing and ratifying the NPT. 

The inspection did not start until 1992, by which time 

Pyongyang already had illicitly separated plutonium. 

When the inspectors insisted on inspecting two waste 

sites that might reveal this, the North Koreans tossed 

them out and threatened to pull out of the treaty altogether.

The international reaction to this behavior was not 

to treat North Korea as an NPT violator, but to beseech 

it to remain in the treaty. The United States went so far 

as to offer two large light water reactors (with South 

Korea and Japan footing the $5 billion bill), and to 

agree to shield the North for years from the NPT’s inspection requirements in return for a halt in North Korean plutonium production. When it later looked as if 

Washington would ultimately insist on inspection, the 

North announced it was withdrawing from the treaty 

anyway. This led to much diplomatic hand-wringing 

in member capitals, but not a peep that Pyongyang 

couldn’t legally quit the NPT.

Such a permissive interpretation of the withdrawal 

clause must change to one that conforms to the trea-
421

ty’s purpose—no matter how awkward or late in the 

game. The international community should insist that 

North Korea is still an NPT member and that, among 

its other obligations, it must permit the basic IAEA inspections that never took place in 1992.

The predictable reaction to this proposal, in some 

quarters, will be that North Korea’s actions cannot 

be reversed by international pressure, and that the 

NPT’s withdrawal clause, which was made deliberately permissive to entice prospective member states, 

cannot be reinterpreted. Yet, Defense Secretary Robert Gates has already committed the United States to 

reversing North Korea’s nuclear status, and, if we do 

not reinterpret the treaty, we will be writing Gates’s 

declaration off as a serious commitment. International 

legal obligations do matter, and being branded as a 

treaty violator has consequences internationally. Even 

Pyongyang seems to sense this and keeps repeating 

that it acted legally in leaving the NPT. For example, 

in its June 14, 1994, statement defending its right to 

test nuclear weapons it insisted, “[North Korea’s] second nuclear test . . . does not run counter to any international law.”1

To make a new approach stick, we will need the 

broad support of NPT members. But that will not happen until the United States steps forward to announce 

a new and tougher standard for withdrawal. This 

might not be welcomed by those self-styled realists 

who believe that insistence on strict NPT compliance 

gets in the way of reaching accommodations with difficult countries. But a permissive approach did not 

work with North Korea and has done great harm to 

the treaty overall.

Which brings us to Iran: Tehran imported considerable nuclear technology as a treaty member, most 
422

prominently from Russia for its Bushehr nuclear power plant project. We should make it clear now that if 

it, or any other country, chooses to withdraw from the 

NPT, they would be obligated to return or cease using such imports before they could clear their treaty 

accounts. Lacking that, they would be international 

outlaws. Raising the bar to withdrawal is an essential 

first step in strengthening the treaty to deter would-be 

bomb makers.

ENDNOTES - CHAPTER 13

1. See Martin Facklor, “North Korea Vows to Produce Nuclear Weapons,” The New York Times, June 13, 2009, available from 

www.nytimes.com/2009/06/14/world/asia/14korea.html-r=/&hp.
423

CHAPTER 14

ENFORCING THE

NUCLEAR NONPROLIFERATION TREATY

AND

INTERNATIONAL ATOMIC ENERGY 

AGENCY COMPLIANCE*

By Pierre Goldschmidt

Compliance with safeguards obligations is a fundamental part of a country’s responsibility in the 

global nuclear nonproliferation regime. The issue of 

compliance was central to the contentious discussions 

at the 2005 Nuclear Nonproliferation Treaty (NPT) 

Review Conference and is likely to play a similar role 

at the 2010 conference.

The main objective of the International Atomic 

Energy Agency (IAEA), as set out in its statute, is to 

promote “the contribution of atomic energy to peace, 

health, and prosperity throughout the world” while 

ensuring that nuclear material, equipment, facilities, 

and information are not used for any military purpose.1

 The IAEA carries out the latter part of this mandate by establishing and implementing safeguards, 

including inspections.

In fulfilling its nonproliferation mandate, the most 

important task of the IAEA is the prompt detection 

and reporting of unauthorized nuclear work in any 

non-nuclear-weapon state that is a party to the NPT.

____________

*This article was originally published as “Safeguards 

Noncompliance: A Challenge for the IAEA and the UN Security 

Council” Arms Control Today, January/February 2010, available 

from www.armscontrol.org/act/2010_01-02/Goldschmidt. 
424

This unauthorized work may involve the diversion of 

nuclear material from declared facilities as well as undeclared nuclear material and activities.

IAEA inspections are designed to ensure that 

countries are complying with their commitments under their safeguards agreements. The United Nations 

(UN) Security Council indicated the importance of 

noncompliance by addressing it in the first operative 

paragraph of Resolution 1887, which the council adopted on September 24, 2009, during the UN summit 

on nonproliferation and disarmament.2

Nevertheless, the international community must 

go beyond that resolution by adopting a refined and 

strengthened approach toward cases of safeguards 

noncompliance. Such an approach, as discussed below, 

has several elements. One element is how the IAEA 

Department of Safeguards should distinguish between 

cases of noncompliance that should be reported to the 

IAEA Board of Governors as “noncompliance” in accordance with Article XII.c of the IAEA statute, on one 

hand, and cases that constitute only technical or legal 

compliance failures and therefore need be reported (if 

at all) only in the annual Safeguards Implementation 

Report, on the other.3

 The board, when it finds that the 

agency is unable to resolve a case of noncompliance 

promptly, should not hesitate to request additional 

verification rights from the UN Security Council. The 

latter, in turn, should take steps to improve the likelihood of prompt and effective action when confronted 

with persistent cases of noncompliance or with withdrawal from the NPT.

THE SAFEGUARD DEPARTMENT’S ROLE

In examining IAEA responsibilities, it is necessary 
425

to draw a distinction between the roles of the secretariat and those of the board of governors. The IAEA 

secretariat is the technical arm of the agency in charge 

of detecting any technical or legal noncompliance 

with the safeguards agreements concluded between 

the IAEA and a state. The secretariat is expected to 

perform this task in the most objective and nondiscriminatory way possible, without the influence of 

political considerations.

The fact that there is no official definition of what 

constitutes noncompliance should not be used as an 

excuse by the secretariat for not reporting promptly, 

fully, and factually any significant or intentional failure or breach of safeguards undertakings, including 

those of agreed “subsidiary arrangements.”4

In judging whether a failure is intentional, the Department of Safeguards within the secretariat should, 

inter alia, take into account whether any state organization, including the state system of accounting for 

and control of nuclear material, knew of undeclared 

nuclear material (whatever its quantity), facilities, 

or activities that should have been declared to the 

IAEA. Denying access to a declared or suspected facility or location, as well as not allowing inspectors 

to take environmental samples as requested by the 

IAEA, is by definition intentional. If such a denial is 

prolonged, for example, more than a few days unless 

for legitimate safety reasons, it must be promptly reported by the Department of Safeguards to the IAEA 

director-general as a matter of concern. If the Department of Safeguards has the legal authority under the 

safeguards agreement to require such access, then the 

denial constitutes noncompliance.

Experience has taught that denial of prompt access to locations or refusal to take environmental 
426

samples has often been an indication of undeclared 

activities. This has been the case in Iran, North Korea, 

South Korea, and possibly Syria. Denial of access to 

relevant persons and documents should also be taken 

seriously. It should be reported explicitly, either in 

the Safeguards Implementation Report or in a report 

to the board, if the denial prevents the agency from 

promptly resolving questions or inconsistencies. This 

is particularly so if it is not the first time that access 

has been denied or if it takes place in conjunction with 

other failures or breaches of safeguards obligations.

Evidence of intentional concealment measures 

or the “obstruction of the activities of IAEA inspectors, interference with the operation of safeguards 

equipment, or prevention of the IAEA from carrying 

out its verification activities,”5

 should be reported as 

noncompliance. Nuclear material that should have 

been declared and placed under safeguards but intentionally has not been also warrants a finding of noncompliance. To warrant a report of noncompliance to 

the board, it is not necessary for the Department of 

Safeguards to demonstrate that the “intention” of not 

declaring nuclear material or activities was part of a 

nuclear weapons program; it is enough that the purpose was unknown.6 

The Department of Safeguards should adopt as a 

guideline the position stated by Director-General Mohamed El Baradei in November 2002: “I believe that 

while differing circumstances may necessitate asymmetric responses, in the case of non-compliance with 

non-proliferation obligations, for the credibility of the 

regime, the approach in all cases should be one and 

the same: zero tolerance.”7

 In accordance with that 

principle, the secretariat should have classified the 

failures and breaches committed by South Korea and 
427

Egypt8 as cases of noncompliance.9

By reporting in November 2003 that Iran was “in 

breach of its obligation to comply with the provisions 

of the Safeguards Agreements,” instead of using the 

word “noncompliance,” the term that the IAEA statute 

uses, El Baradei deliberately left to the board the sole 

responsibility for making a formal finding of noncompliance. This ambiguous language may have played 

a role in politicizing what should have remained the 

purely technical and factual work of the secretariat.10

The assessment of Libya’s violations of its safeguards agreement reported to the board in February 

2004 was even more disturbing. Although, in addition 

to the reported violations, Libya admitted that it had 

received documentation related to nuclear weapons 

design and fabrication and more or less explicitly acknowledged that it had a nuclear weapons program, 

El Baradei did not use the term “noncompliance.” 

This set a bad precedent and amounted to a direct 

contradiction of his 2002 statement cited above. Fortunately, the board found Libya in noncompliance and 

requested the director-general to “report the matter 

to the Security Council for information purposes only, 

while commending [Libya] for the actions it has taken 

to date, and has agreed to take, to remedy the noncompliance.”11 The Security Council held a meeting 

on April 22, 2004, to consider the matter and, via its 

president, welcomed Libya’s active cooperation with 

the IAEA and its decision to abandon its weapons of 

mass destruction (WMD) programs.

Finding a state in noncompliance with its safeguards agreement is not the only reason for the IAEA to 

submit reports to the Security Council. If, in the course 

of their duties, Department of Safeguards inspectors 

encounter “questions that are within the competence 
428

of the Security Council as the organ bearing the main 

responsibility for the maintenance of international 

peace and security,” the IAEA statute suggests that 

these questions should be reported to the board and 

then by the board to the Security Council.12 In addition, paragraph 19 of the Comprehensive Safeguards 

Agreement gives the board the power to find a state in 

noncompliance if “the Agency is not able to verify that 

there has been no diversion of nuclear material.” In 

other words, a finding of noncompliance by the board 

does not require the Department of Safeguards to verify that there has been a diversion. Noncooperation 

by a state, thus preventing the Agency from verifying that no diversion has taken place, can be sufficient 

grounds for charging noncompliance.13

One nonproliferation official recently said that 

when it comes to unanswered questions, obstruction, 

or access denials, the same significance should be 

ascribed “to the inability of the Agency to conclude 

absence of undeclared activities as to a finding of 

non-compliance.”14 According to the official, “[T]he 

experience accumulated over the last 20 years clearly 

indicates that a ‘smoke screen’ usually is as telling and 

dangerous as a ‘smoking gun’.”15

In summary, the IAEA statute requires the director-general to transmit to the board all noncompliance 

reports made by the Department of Safeguards. Unlike the board, the secretariat is expected to act as a 

technical and totally apolitical body so as to maintain 

its reputation of objectivity and impartiality.

It will be one of the main tasks of the new directorgeneral, Yukiya Amano, to restore member states’ 

confidence that the IAEA secretariat will promptly, 

fully, and factually report on safeguards noncompliance in accordance with the agency’s statute.
429

HANDLING NONCOMPLIANCE REPORTS

The IAEA board of governors, which is a political body, must decide if the safeguards breaches and 

failures reported by the secretariat, whether or not 

the term “noncompliance” has been used, constitute 

noncompliance under the statute and, if so, when they 

must be reported to the UN Security Council. The statute does not specify the criteria that the board should 

use to arrive at a finding. Given the difference in roles 

between the board and the secretariat, the criteria may 

not be the same as those used by the secretariat in determining whether technical or legal noncompliance 

must be reported to the board.

The goal here is not to focus the debate on whether 

the board should have found South Korea and Egypt 

in noncompliance in 2004 and 2005, respectively, and 

thereafter reported the cases to the Security Council 

for information purposes only. In the case of South 

Korea, which had ratified an additional protocol and 

subsequently fully cooperated with the IAEA, there 

was no need for Security Council action. Thanks to 

South Korea’s cooperation, the agency was able to 

conclude in 2007 that the country did not have any 

undeclared nuclear material or activities and that all 

nuclear material remained in a peaceful mode.

In the case of Egypt, the IAEA did not find any indication that the reported failures and breaches were 

part of concealment efforts or a deception strategy. As 

in the case of South Korea, there was no indication in 

Egypt of any military involvement in or connection 

with nuclear-related activities. Because Egypt does 

not have an additional protocol in force, however, the 

IAEA is not in a position to conclude that there are 
430

no undeclared nuclear material and activities in the 

state as a whole. Also, as reported in the 2008 Safeguards Implementation Report, the IAEA has so far 

been unable to identify the source of the highly enriched uranium and low-enriched uranium particles 

found in environmental samples taken at the Egyptian Nuclear Research Center at Inshas. The fact that 

there are still open questions about Egypt’s nuclear 

activities almost 5 years after the failures and breaches 

were first reported to the board should be a cause of 

concern. Progress on these issues should be reported 

to the board separately from the Safeguards Implementation Report. These long-standing open questions help demonstrate why the board should have 

at least adopted resolutions expressing its concern, as 

El Baradei did in his reports, about the failures and 

breaches discovered in South Korea and Egypt, even 

if the board found it unnecessary to make a finding of 

noncompliance under the statute.

In the case of Iran, the IAEA board adopted in 

September 2003 a resolution calling on that country 

to “suspend all further uranium enrichment-related 

activities, including the further introduction of nuclear material into [the] Natanz [enrichment plant] . 

. . pending provision by the Director General of the 

assurances required by Member States, and pending 

satisfactory application of the provisions of the additional protocol.”16 The resolution also called on Iran to 

grant “unrestricted access, including environmental 

sampling, for the Agency to whatever locations the 

Agency deems necessary for the purposes of verification of the correctness and completeness of Iran’s 

declarations.”17

In the spring of 2004, it already had become apparent that Iran was not abiding by the September 2003 
431

resolution. In a resolution adopted on June 18, 2004, 

the board acknowledged “the statement by the Director General on 14 June that it is essential for the integrity and credibility of the inspection process to bring 

these issues to a close within the next few months.”18

Apparently, the international community subsequently lost sight of the importance of this time factor. Once 

a significant or deliberate breach of safeguards agreements has been identified, or a state obstructs or delays verification activities, as is presently the case also 

in Syria, action by the board and possibly by the UN 

Security Council becomes urgent.19 

In its September 18, 2004, resolution, the board 

noted “with serious concern that . . . Iran has not 

heeded repeated calls from the Board to suspend, as 

a confidence building measure, all enrichment-related 

and reprocessing activities.”20 It was clear by then that 

the IAEA needed legally binding verification rights 

extending beyond those provided under the Model 

Additional Protocol. Only the UN Security Council, by adopting a resolution under Chapter 7 of the 

UN Charter, which addresses threats to international 

peace and security, is in a position to provide those 

legal rights to the IAEA secretariat. Its board cannot.

It was only after Iran’s August 2005 breach of its 

November 2004 expanded commitment to suspend 

the conversion of uranium concentrates to uranium 

hexafluoride that the board found Iran to have been 

noncompliant. The vote on the September 24, 2005, 

resolution was 22-1, with 12 abstentions.

One good thing about the September 2005 resolution is that the board found “that Iran’s many failures 

and breaches of its obligation to comply with its NPT 

Safeguards Agreement, as detailed in [the November 

10, 2003 report to the board] constitute non compli-
432

ance in the context of Article XII.C” of the statute.21

By confirming that the findings reported in November 

2003 constituted noncompliance, the board mitigated 

the unhelpful precedent it had set at that time by refraining from a noncompliance finding. However, by 

the time the board, on February 4, 2006, finally decided to report the noncompliance to the Security Council22 and 10 months later the Security Council adopted 

a resolution that legally required Iran to suspend its 

enrichment-related activities,23 it was too late to stop 

Iran from disregarding these directives.

THE SECURITY COUNCIL’S ROLE

Under the statute, a country that the IAEA board 

finds to be in noncompliance must be referred to the 

Security Council. The board is not obliged to make this 

report immediately if it wishes to give the noncompliant state sufficient time to implement the necessary 

corrective actions. If the noncompliant state fully and 

proactively cooperates with the agency, the board will 

refer the case to the council for information purposes 

only, while likely praising the state for its constructive 

attitude, as it did in the case of Libya. If the noncompliant state uses delaying and deceptive tactics and 

does not provide prompt access to locations, equipment, documents, and relevant persons, the agency 

may temporarily need from the UN Security Council 

legally binding expanded verification rights.

As exemplified by the cases of Iran and North Korea, one of the greatest difficulties in deterring states 

from violating their nonproliferation undertakings 

and from ignoring legally binding Security Council 

resolutions is their hope that, for geopolitical or economic reasons, at least one of the five veto-wielding 
433

members of the council will oppose the adoption of 

effective sanctions. To guarantee a timely council 

reaction in cases of noncompliance with safeguards 

agreements and to increase the likelihood of negative consequences for a state that does not comply 

with council and IAEA resolutions, the council should 

adopt a generic—that is, not state-specific—resolution 

under Chapter 7 of the UN Charter.24 To give the IAEA 

the verification tools it needs in case a noncompliant 

state does not adequately cooperate with the agency 

to resolve pending issues, the resolution should provide that, “upon request by the agency,” the Security 

Council would automatically adopt a specific resolution under Chapter 7 requiring that the state grant the 

IAEA extended access rights, as set out in a “temporary complementary protocol.”25 These rights would 

be terminated as soon as the IAEA secretariat and 

board have drawn the conclusion that the country has 

no undeclared nuclear material or activities and that 

its declarations to the IAEA are correct and complete.

Under the multistage process foreseen in this generic resolution, if the IAEA director-general were unable to report within 60 days of the adoption of the 

state-specific resolution that the noncompliant state 

was fully implementing the temporary complementary protocol, the Security Council would adopt a second specific resolution requiring the state to suspend 

immediately all enrichment-and reprocessing-related 

activities.

If the noncompliant state further refused to implement the relevant Security Council resolutions fully, 

the Security Council would adopt a third Chapter 7 

resolution calling on all states to suspend military cooperation, including the supply of equipment, with the 

noncompliant state as long as it remained in noncom-
434

pliance with council and IAEA resolutions. A prior 

council agreement that all military cooperation with 

that state would be suspended in these circumstances 

should constitute a strong disincentive for states to 

defy legally binding council resolutions.

Had such a generic resolution existed before 2002, 

the foreign ministers of France, Germany, and the 

United Kingdom (the EU-3) would not have negotiated the October 2003 deal in Tehran. Under that deal, 

Iran agreed “voluntarily to suspend all enrichment activities as defined by the IAEA,”26 while the September 

2003 board resolution had called on Iran to suspend 

all further enrichment-related activities, a term that is 

much broader in scope. In exchange for this limited 

and nonbinding pledge to the EU-3, Iran received the 

tacit commitment of the three countries not to support 

an IAEA resolution referring Iran’s noncompliance to 

the Security Council. By failing to find Iran in noncompliance in November 2003, the IAEA board created a 

damaging precedent with far-reaching consequences 

that are still felt today.

WITHDRAWING FROM THE NPT

Another particularly threatening case for international peace and security is the withdrawal from 

the NPT of a non-nuclear-weapon state that has been 

found by the IAEA to be in noncompliance with its 

safeguards agreement. As has been stressed on many 

occasions, the great benefit that the NPT brings to the 

international community would be dangerously eroded if countries violating their safeguards agreements 

or the NPT felt free to withdraw from the treaty, develop nuclear weapons, and enjoy the fruits of their 

violation with impunity.
435

To address this issue, the Security Council should 

adopt under Chapter 7 of the UN Charter another 

generic and legally binding resolution, stating that 

a country’s withdrawal from the NPT (an undisputed right under the treaty’s Article X.1) after being 

found by the IAEA to be in noncompliance with its 

safeguards undertakings constitutes a threat to international peace and security, under Article 39 of the 

UN Charter.27 This generic resolution should also 

provide that, under these circumstances, all materials and equipment made available to such a state or 

resulting from the assistance provided to it under a 

comprehensive safeguards agreement would have to 

be sealed by the IAEA and, as soon as technically possible, removed from that state under IAEA supervision and remain under agency safeguards. If the state 

still refused to comply, then any military cooperation 

between that state and other UN member states would 

be suspended.

Another important preventive measure would be 

for the IAEA board to urge all states with enrichment 

or reprocessing facilities to conclude back-up safeguards agreements that would not terminate in case 

of NPT withdrawal.28

CONCLUSION

IAEA safeguards play a key role in the international community’s attempts to ensure that nuclear 

energy is used in non-nuclear-weapon states exclusively for peaceful purposes. By deterring states from 

seeking nuclear weapons, safeguards play a major 

role in preventing proliferation. Yet, deterrence can be 

effective only if states believe that noncompliance has 

a strong chance of being detected and if its detection 
436

has consequences.

President Barack Obama noted both elements in 

his 2009 speech in Prague: “We need more resources 

and authority to strengthen international inspections. 

We need real and immediate consequences for countries caught breaking the rules or trying to leave the 

treaty without cause.”29

The IAEA should not be complacent toward states 

violating their nonproliferation undertakings. That 

said, the weakest link in the nonproliferation regime 

today is not the performance of the IAEA Department 

of Safeguards but that of the international community 

in responding to noncompliance. The burden here 

falls largely on the IAEA board and the UN Security 

Council.

The adoption of UN Security Council Resolution 

1887, which emphasizes that noncompliance with 

nonproliferation obligations must be brought to the 

attention of the Security Council, is a significant but 

insufficient step in the right direction. It is a call for 

states to strengthen the NPT and to comply fully with 

all their obligations, to ratify the Comprehensive Test 

Ban Treaty, to adopt stricter national controls for the 

export of sensitive nuclear fuel-cycle technologies, 

and more. However, states are not obliged to follow 

the recommendations contained in the resolution.

Therefore, states should discuss and agree on legally binding generic procedures for responding to noncompliance. Because members of the Security Council 

would not know which states might be involved in 

the future, such discussions should be easier and less 

acrimonious than they are during the heat of a crisis 

involving specific target countries. An agreement on a 

set of standard responses to be applied evenhandedly 

to any state found in noncompliance, regardless of its 
437

allies, would significantly enhance the credibility of 

the nonproliferation regime.

Finally, considering the precedent that North Korea set in 2003, it is necessary to plan for the possibility of another state withdrawing from the NPT. The 

most critical step would be for the Security Council to 

adopt a resolution, under Chapter 7 of the UN Charter, deciding that the withdrawal of a noncompliant 

state from the NPT would be considered a threat to 

international peace and security.

If adopted, the concrete measures recommended 

in this chapter would make a real difference in protecting against nuclear proliferation; but all countries, 

not only the five permanent members of the Security 

Council, will first need to acknowledge that these 

measures should be adopted now in order to mitigate 

the consequences of the next potential proliferation 

crisis. Protecting against that dangerous prospect is in 

everyone’s best security interest.

ENDNOTES - CHAPTER 14

1. “Statute of the IAEA,” Vienna, Austria: International Atomic Energy Agency, available from www.iaea.org/About/statute_text.

html (hereinafter IAEA Statute).

2. UN Security Council, Resolution 1887, S/RES/1887, September 24, 2009, available from www.un.org/News/Press/docs/2009/

sc9746.doc.htm.

3. The Safeguards Implementation Report, submitted every year to the board, provides a description and analysis of the 

agency’s safeguards operations during the previous year, including a summary of the problems encountered and the secretariat’s 

findings and conclusions.

4. Article 39 of the Comprehensive Safeguards Agreement 

provides that “the Agency and the State shall make Subsidiary 
438

Arrangements which shall specify in detail . . . how the procedures laid down in the Agreement are to be applied.”

5. “IAEA Safeguards Glossary, 2001 Edition,” p. 14, para. 

2.3.(d), Vienna, Austria: IAEA, available from www-pub.iaea.org/

MTCD/publications/PDF/nvs-3-cd/PDF/NVS3_prn.pdf.

6. “The Structure and Content of Agreements Between the 

Agency and States Required in Connection With the Treaty On 

the Non-Proliferation of Nuclear Weapons,” INFCIRC/153 (corrected), Vienna, Austria: IAEA, June 1972, para. 28, available from 

www.iaea.org/Publications/Documents/Infcircs/Others/infcirc153.pdf.

7. “Reinforcing the World ́s Regime Against Nuclear Weapons,” Vienna, Austria: IAEA, November 14, 2002, available from 

www.iaea.org/NewsCenter/News/2002/11-13-903199.shtml.

8. “Implementation of the NPT Safeguards Agreement 

in the Republic of Korea: Report by the Director General,” 

GOV/2004/84, Vienna, Austria: IAEA, November 11, 2004, 

para. 38, available from www.iaea.org/Publications/Documents/

Board/2004/gov2004-84.pdf; “Implementation of the NPT Safeguards Agreement in the Arab Republic of Egypt: Report by the 

Director General,” GOV/2005/9, Vienna, Austria: IAEA, February 14, 2005, para. 22, available from www.carnegieendowment.org/

static/npp/reports/gov2005-9.pdf.

9. See Pierre Goldschmidt, “Exposing Nuclear Noncompliance,” Survival, Vol. 51, No. 1, February-March 2009, pp. 143-163, 

available from www.carnegieendowment.org/publications/index.cfm

?fa=view&id=22734&prog=zgp&proj=znpp.

10. “Implementation of the NPT Safeguards Agreement in 

the Islamic Republic of Iran: Report by the Director General,” 

GOV/2005/75, Vienna, Austria: IAEA, November 10, 2003, 

available from www.iaea.org/Publications/Documents/Board/2003/

gov2003-75.pdf. Another factor was that the report on Iran stated 

that, “[t]o date, there is no evidence that the previously undeclared nuclear material and activities referred to above were related to a nuclear weapons programme.” This formulation set the bar 

too high for the agency by suggesting that evidence of a nuclear 

weapons program was required for a finding of noncompliance.
439

11. “Implementation of the NPT Safeguards Agreement of 

the Socialist People’s Libyan Arab Jamahiriya,” GOV/2004/ 18, 

Vienna, Austria: IAEA, March 10, 2004, para. 4, available from 

www.iaea.org/Publications/Documents/Board/2004/gov2004-18.pdf

(emphasis added).

12. IAEA Statute, art. III.B.4. These questions would cover 

areas such as nuclear weaponization-related activities.

13 . James Acton, e-mail communication with author, October 23, 2009.

14. Nonproliferation official, e-mail communication with author, November 28, 2009.

15. Ibid.

16. “Implementation of the NPT Safeguards Agreement in 

the Islamic Republic of Iran,” GOV/2003/69, Vienna, Austria: 

IAEA, September 12, 2003, para. 3, available from www.iaea.org/

Publications/Documents/Board/2003/gov2003-69.pdf.

17. Ibid., para. 4(ii).

18. “Implementation of the NPT Safeguards Agreement in the 

Islamic Republic of Iran,” GOV/2004/49, Vienna, Austria: IAEA, 

June 18, 2004, para. l, available from www.iaea.org/Publications/

Documents/Board/2004/gov2004-49.pdf.

19. As John Carlson recently wrote,

A judgment on noncompliance cannot wait until the state 

has succeeded in acquiring nuclear weapons. If the standard of 

proof is set too high, the IAEA is bound to fail in its responsibility 

to provide the international community with timely warning. To 

prove the existence of a nuclear weapons program is unrealistic. 

A state having a nuclear weapon or nuclear weapons components 

or conducting weaponization experiments with nuclear material 

is unlikely to be caught red-handed. More likely, a state facing 

obvious exposure would deny inspectors access to the location 

concerned, preferring to argue whether lack of cooperation constitutes noncompliance, maintaining some ambiguity about its 
440

actions. When the board determines that a state has intentionally 

not declared nuclear material, it must initially presume that the 

material was not intended for peaceful purposes. The smoking 

gun is the failure to declare nuclear material.

John Carlson, “Defining Noncompliance: NPT Safeguards 

Agreements,” Arms Control Today, May 2009, pp. 22-27, available 

from www.armscontrol.org/act/2009_5/Carlson.

20. “Implementation of the NPT Safeguards Agreement in 

the Islamic Republic of Iran,” GOV/2004/79, Vienna, Austria: 

IAEA, September 18, 2004, para. d, available from www.iaea.org/

Publications/Documents/Board/2004/gov2004-79.pdf.

21. “Implementation of the NPT Safeguards Agreement in 

the Islamic Republic of Iran,” GOV/2005/79, Vienna, Austria: 

IAEA, September 24, 2005, para. 1, available from www.iaea.org/

Publications/Documents/Board/2005/gov2005-77.pdf.

22. Cuba, Syria, and Venezuela voted against the resolution, 

and five states (Algeria, Belarus, Libya, Indonesia, and South Africa) abstained.

23. UN Security Council, Resolution 1737, S/RES/1737, December 23, 2006.

24. Pierre Goldschmidt, “Concrete Steps to Improve the 

Nonproliferation Regime,” Carnegie Papers, No. 100, April 2009, 

available from www.carnegieendowment.org/publications/index.cf

m?fa=view&id=22943&prog=zgp&proj=znpp. Annex I provides a 

potential model for such a resolution.

25. Ibid., pp. 27-43.

26. Statement by the Iranian Government and visiting EU 

Foreign Ministers, October 21, 2003, available from www.iaea.org/

NewsCenter/Focus/IaeaIran/statement_iran21102003.shtml.

27. See generally Goldschmidt, “Concrete Steps to Improve 

the Nonproliferation Regime.” See Annex II for the proposed 

model resolution.
441

28. A Comprehensive Safeguards Agreement (INFCIRC/153 

corrected) remains in force only for so long as the state remains 

party to the NPT, whereas under an INFCIRC/66-type agreement, all nuclear material supplied or produced under that 

agreement would remain under safeguards, even if the state 

withdraws from the NPT, until such time as the IAEA has determined that such material is no longer subject to safeguards.

29. Office of the Press Secretary, The White House, “Remarks by President Barack Obama,” April 5, 2009, available from 

www.whitehouse.gov/the_press_office/Remarks-By-President-BarackObama-In-Prague-As-Delivered.
442
443

ABOUT THE CONTRIBUTORS

CHRISTOPHER FORD is Director of the Center for 

Technology and Global Security at the Hudson Institute. Until September 2008, he served as U.S. Special 

Representative for Nuclear Nonproliferation. Previously, Mr. Ford was Principal Deputy Assistant Secretary of State in Bureau of Verification, Compliance, 

and Implementation. His service on various Senate 

committee staffs includes Minority Counsel and General Counsel to the U.S. Senate Select Committee on 

Intelligence, Staff Director and Chief Counsel to the 

Permanent Subcommittee on Investigations, Chief 

Investigative Counsel to the Governmental Affairs 

Committee, national security advisor to Senator Susan Collins (R-ME), and an investigative lawyer for 

campaign finance investigations led by Senator Fred 

Thompson (R-TN). Mr. Ford also served briefly as Assistant Counsel to the Intelligence Oversight Board at 

the White House in 1996. His publications include The 

Admirals’ Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War.

VICTOR GILINSKY is an independent energy consultant and former Nuclear Regulatory Commissioner under Presidents Ford, Carter, and Reagan. He 

has been active on nonproliferation issues for many 

years, going back to his early work for RAND in Santa Monica, California. In 1971 Dr. Gilinsky moved to 

the Atomic Energy Commission in Washington, DC, 

where he was Assistant Director for Policy and Program Review. From 1973 to 1975, he was head of the 

RAND Physical Sciences Department. From 1975 to 

1984, he served on the Nuclear Regulatory Commission, having been appointed by President Gerald Ford 
444

and reappointed by President Jimmy Carter. During 

his NRC tenure, Dr. Gilinsky was heavily involved in 

nuclear-export issues. Dr. Gilinsky holds a Ph.D. in 

physics from the California Institute of Technology.

PIERRE GOLDSCHMIDT is a nonresident senior associate at the Carnegie Endowment. Mr. Goldschmidt 

is also a member of the Board of Directors for the Association Vinçotte Nuclear (AVN). AVN is a non-profit, Authorized Inspection Organization charged with 

verifying compliance of nuclear power plants with 

Belgian safety regulation. Mr. Goldschmidt was the 

Deputy Director General, Head of the Department of 

Safeguards, at the International Atomic Energy Agency from 1999 to June 2005. Before the IAEA, he was 

Director General of SYNATOM, the company responsible for the fuel supply and spent fuel management 

of seven Belgian nuclear plants, and Directoire of EURODIF, a French uranium enrichment company. Mr. 

Goldschmidt has headed numerous European and international committees, including as Chairman of the 

Uranium Institute in London and Chairman of the Advisory Committee of the EURATOM Supply Agency.

ELDON GREENBERG is the owner of Garvey Schubert 

and Barer Law Firm. Previously he served as council 

to the Nuclear Control Institute in Washington, DC. 

He also served as general counsel of the National Oceanic and Atmospheric Administration (NOAA) and 

as deputy general counsel of the Agency for International Development in the administration of President 

Jimmy Carter.

JIM HARDING is former director of power planning 

and forecasting and director of external affairs for Se-
445

attle City Light. He was also assistant and acting director for the Washington State Energy Office, Washington staff director for the Northwest Power Planning 

Council, and advisor to the chairman of the California 

Energy Commission. Mr. Harding currently consults 

for a wide range of clients on energy and environmental policy.

GEORGE PERKOVICH is vice president for studies and director of the Nuclear Policy Program at the 

Carnegie Endowment for International Peace. His research focuses on nuclear strategy and nonproliferation, with a focus on South Asia and Iran, and on the 

problem of justice in the international political economy. Mr. Perkovich is the author of India’s Nuclear 

Bomb, coauthor of the Adelphi Paper, Abolishing Nuclear Weapons, and of Universal Compliance: A Strategy for Nuclear Security. He served as a speechwriter 

and foreign policy adviser to Senator Joe Biden from 

1989 to 1990, and serves as an adviser to the International Commission on Nuclear Non-proliferation and 

Disarmament and the Council on Foreign Relations’ 

Task Force on U.S. Nuclear Policy. 

HENRY SOKOLSKI is Executive Director of the Nonproliferation Policy Education Center (NPEC), teaches 

at the Institute of World Politics in Washington, DC, 

and is a member of the Congressional Commission on 

the Prevention of Weapons of Mass Destruction Proliferation and Terrorism. He previously served as a 

member of the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction and on the 

CIA’s Senior Advisory Board. Mr. Sokolski worked in 

the first Bush Administration at the Pentagon as Dep-
446

uty for Nonproliferation Policy and in the Office of the 

Director of Net Assessment on weapons proliferation 

issues. Previously, he served at the Senate as an aide 

on nuclear energy matters to Senator Gordon Humphrey and as a military legislative aide to Senator Dan 

Quayle. Mr. Sokolski has authored or edited numerous volumes on strategic weapons proliferation issues 

including Falling Behind: International Scrutiny of the 

Peaceful Atom and Best of Intentions: America’s Campaign against Strategic Weapons Proliferation.

ALBERT WOHLSTETTER (1913-97) was a senior policy analyst on the staff of the Rand Corporation, the 

California-based think tank, from 1951 to 1963 and 

a consultant to Rand for decades afterward. He also 

taught at the University of California, Los Angeles, 

and the University of California, Berkeley, in the early 

1960s and at the University of Chicago from 1964 to 

1980. Mr. Wohlsetter was a longtime executive of Pan 

Heuristics Services, Inc., a California-based consulting 

firm dealing in security policy whose clients included 

the Departments of State and Defense as well as private corporations. Mr. Wohlstetter is best known for 

his analyses of the vulnerabilities of America’s strategic air command to Soviet strategic forces, the importance of securing the Persian Gulf to prevent energy 

disruptions, the ramifications of the spread of nuclear 

weapons, civilian nuclear technology, the vulnerability of U.S. command control and communication systems, and the significance of precision guidance munitions, missile defenses, and defensible space satellite 

systems.

ROBERT ZARATE is a Legislative Aid on National Security to Congressman Jeff Fortenberry, who serves on 
447

the House Foreign Affairs Committee. He previously 

was a Research Fellow at the Nonproliferation Policy 

Education Center and a policy analyst of controls on 

encryption and other dual-use measures at Steptoe & 

Johnson, LLP. Mr. Zarate coedited Nuclear Heuristics: 

Selected Writings of Albert and Roberta Wohlstetter.
U.S. ARMY WAR COLLEGE

Major General Robert M. Williams

Commandant

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STRATEGIC STUDIES INSTITUTE

Director

Professor Douglas C. Lovelace, Jr.

Director of Research

Dr. Antulio J. Echevarria II

Editor

Mr. Henry Sokolski

Director of Publications

Dr. James G. Pierce

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Helen Musser