Thinking outside the box: preserving the NPT while advancing the Middle East weapons-of-mass-destruction-free zone

ABSTRACT

Since 1995, unsuccessful efforts to promote a Middle East weapons-of-mass-destruction-free zone (MEWMDFZ) within the review process of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) have weakened the treaty regime. This viewpoint proposes establishing a designated Middle East Support Unit to work independently from and in parallel to the NPT review process. The Support Unit will contribute to both global and regional security. Globally, its work will increase the ability to reach a consensus-based final document at the 2020 NPT Review Conference, which in turn will strengthen support for the treaty. Regionally, the Support Unit can help reinvigorate dialogue on security measures and nonproliferation in the Middle East. The possibility of resuming a direct dialogue between states in the region is of utmost importance today, as growing regional instability is a source of mutual concern to the Arab states, Iran, and Israel.

KEYWORDS:

• Middle East
• weapons-of-mass-destruction-free zone
• Treaty on Non-Proliferation of Nuclear Weapons
• regional security
• Iran
• Israel
• Egypt

Notes

1 “Final Document, Part II: Documents issued at the Conference,” 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2015/50, Article 29; Rose Gottemoeller, “Closing Remarks,” 2015 Treaty on the Non-Proliferation of Nuclear Weapons Review Conference, May 22, 2015, <https://2009-2017-usun.state.gov/remarks/6545>.

2 “Resolution on the Middle East,” The Conference of the States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.1995/32/RES/1, May 11, 1995.

3 Vienna Convention on the Law of Treaties, January 27, 1980, Article 31, paragraph 3.

4 The suggestions in this paper are based on an extensive review of NPT review conference and preparatory committee documents since the 1995 NPT Review and Extension Conference (“1995 NPT RevCon”). The research was conducted as part of the author's dissertation, titled “From Bottom-Up to Top-Down: Non-conventional Treaty Review Cycles and Their Impact on Global Security Regimes.” It is also based on Chen Kane, “Planning Ahead: A Blueprint to Negotiate and Implement a Weapon-of-Mass-Destruction-Free Zone in the Middle East,” CNS Occasional Paper No. 22, April 2015,” <www.nonproliferation.org/a-blueprint-to-a-middle-east-wmd-free-zone/>.

5 The term “review cycle” refers to all actions taken to prepare for each review conference in various UN frameworks and its institutions. The current review cycle refers to the following two preparatory committee sessions of 2018–19, and the 2020 NPT RevCon. See “Options for the Further Strengthening of the NPT's Review Process by 2015,” UNODA Occasional Paper No. 22, December 2012, <www.un.org/disarmament/update/20121214/>.

6 Statement by Ahmed Aboul-Gheit, minister for foreign affairs of Egypt, to the 2010 NPT Review Conference, May 5, 2010, <http://www.un.org/en/conf/npt/2010/statements/pdf/egypt_en.pdf>.

7 According to the Israeli statement following the 2010 NPT RevCon, “As a non-signatory state of the NPT, Israel is not obligated by the decisions of this Conference, which has no authority over Israel.” Statement by the Government of Israel on NPT Review Conference Middle East Resolution, Israel Ministry of Foreign Affairs, May 29, 2010, <http://www.mfa.gov.il/mfa/pressroom/2010/pages/statement_government_israel_npt_review_conference_29-may-2010.aspx>.

8 Most prominent issues under dispute in the 2015 NPT RevCon were humanitarian aspects of nuclear weapons, negative security assurances, nuclear disarmament, transparency, and others. See, inter alia: “The Vienna Conference on the Humanitarian Impact of Nuclear Weapons,” December 8–9, 2014, and the “Austrian Pledge: Input for the NPT 2015 Review Conference,” NPT/CONF.2015/WP.29, April 21, 2015; “Security Assurances against the Use or the Threat of Use of Nuclear Weapons,” NPT/CONF.2015/WP.53, March 4, 2015; “Report of Main Committee I,” NPT/CONF.2015/MC.I/1, May 18, 2015; “Transparency, Reporting and Strengthening the Review Process,” NPT/CONF.2015/WP.32, April 22 2015; “Addressing ‘Vienna Issues’: The Comprehensive Nuclear-Test-Ban Treaty, Compliance and Verification, Export Controls, Cooperation in the Peaceful Uses of Nuclear Energy, Nuclear Safety, Nuclear Security and Withdrawal from the Nuclear Non-Proliferation Treaty,” NPT/CONF.2015/WP.1, March 2, 2015; “Activities of the International Atomic Energy Agency Relevant to Article IV of the Treaty on the Non-Proliferation of Nuclear Weapons,” NPT/CONF.2015/14, March 20, 2015; Statement by Yukiya Amano, IAEA Director General, to the 2015 NPT Review Conference, April 27, 2015, <www.un.org/en/conf/npt/2015/statements/pdf/IAEA_en.pdf>.

9 UNGA Resolution 3263(XXIX), December 9, 1974. The recent UNGA Resolution, A/RES/71/27, on the establishment of a nuclear-weapon-free zone in the region of the Middle East adopted without a vote, on December 5, 2016. See also Said Mohammed Kadry, “Middle East Weapons of Mass Destruction Free Zone: Regional Security and Non-Proliferation Issues,” in Vilmos Cserveny, Jozef Goldblat, and Faawzy Hussein Hamad, eds., Building a Weapons of Mass Destruction Free Zone in the Middle East: Global Non-proliferation Regimes and Regional Experiences (Geneva: United Nations Institute for Disarmament Research, 2004).

10 “Israeli Nuclear Capabilities and Threat,” IAEA, GC/XXXII/RES/487, September 1988; UNGA Resolution A/RES/43/65, Article 8, December 7, 1988; “Technical Study on Different Modalities of Application of Safeguards in the Middle East,” IAEA, GC/XXXII/887, August 29, 1989; UNSC, “Conjoined and Independent Actions,” A/RES/44/108, p. 5, December 15, 1989; “Study on the Effective and Verifiable Measures Which Would Facilitate the Establishment of Nuclear Weapons Free-Zone in the Middle East,” Group of Experts Document A/45/435, October 10, 1990; Letter dated 16 April 1990 from the Permanent Representative of Egypt to the United Nations addressed to the Secretary-General and the UN Security Council, A/45/219, April 16, 1990.

11 The UNSC “Notes that the actions to be taken by Iraq in paragraphs 8 to 13 represent steps towards the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery and the objective of a global ban on chemical weapons.” UN Security Council Resolution 687, S/RES/687, April 3, 1991, Article 14.

12 For example: the Arms Control and Regional Security (ACRS) talks in the “Madrid Framework” (known also as the “Madrid Peace Process,” October 1991); the Euro-Mediterranean Partnership (“Barcelona Process,” November 1995); the IAEA General Conference adopted a resolution, tabled by Egypt, on “Israeli Nuclear Capabilities,” GC(53)/RES/17, September 18, 2009; Union for the Mediterranean (UfM), Joint Declaration of the Paris Summit for the Mediterranean, Paris, July 13, 2008, <http://ufmsecretariat.org/wp-content/uploads/2012/09/ufm_paris_declaration1.pdf>; IAEA Forum on Experience of Possible Relevance to the Creation of a Nuclear-Weapon-Free Zone in the Middle East, GOV/2012/38-GC(56)/17, Annex 2. For attempts to convene the “Helsinki Conference” of 2012, see: NPT 2010 RevCon conclusions and recommendations for follow-on actions, NPT/CONF.2010/50 (Vol. I), Part 4, pp. 27–31; “Finland Appointed as Host Government/Facilitator for 2012 Conference on Middle East Zone Free of Nuclear Weapons and all other Weapons of Mass-Destruction,” SG/2180-DC/3307, October 14, 2011.

13 Among the four review conferences that were held after 1995, only at the 2000 and 2010 conferences did the parties conclude a final document by consensus. The states parties at the 2005 and 2015 RevCons failed to agree on a final document.

14 NPT, Article 8(3).

15 Esther Efrat-Smilg, “Conventions Law,” in Robbie Sabel et al., eds., International Law, 3rd edn. (Jerusalem: Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 2016), p. 761.

16 NPT Article 8(3) defines the review conference, whereas Article 8(1–2) refers to the amendment procedures as follows (main provisions): support for the amendment by at least one-third of states parties is necessary to convene an amendment conference. At the conference, an amendment must be approved not only by majority of votes, but with the support of all five NWS.

17 “Treaty Handbook,” rev. edn., Treaty Section of the Office of Legal Affairs, UN, 2012, pp. 25–27, 71, <http://treaties.un.org/doc/source/publications/THB/English.pdf>; Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), pp. 242–44; Jozef Goldblat, Arms Control: The New Guide to Negotiations and Agreements, 2nd edn. (Oslo: International Peace Research Institute [PRIO], 2002), p. 18; M.J. Bowman, “The Multilateral Treaty Amendment Process—a Case Study,” International, and Comparative Law Quarterly, Vol. 44, no. 3 (1995), p. 540.

18 The Vienna Convention on the Law of Treaties defines the amendment procedures as follows: “The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement.” Vienna Convention on the Law of Treaties: Amendment and Modifications of Treaties, Part IV, Article 40.4.

19 Robbie Sabel, Procedure at International Conferences, 2nd edn. (New York: Cambridge University Press, 2006), p. 407.

20 Ibid., pp. 335–46.

21 Vienna Convention on the Law of Treaties, Article 31.

22 Georg Nolte, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), pp. 341–44.

23 Carlton Stoiber, “The Evolution of NPT Review Conference Final Documents, 1975–2000,” Nonproliferation Review, Vol. 10, No. 3 (2003), pp. 126–66; Cornelia Ulbert, Thomas Risse, and Harald Mueller, “Arguing and Bargaining in Multilateral Negotiations,” Final Report to the Volkswagen Foundation, 2004, p. 3.

24 “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.” NPT, Article IX (3).

25 Tom Sauer, “The Nuclear Nonproliferation Regime in Crisis,” Peace Review, Vol. 18, No. 3 (2006), pp. 335–7.

26 The final document (or “package of decisions”) of the 1995 Review and Extension Conference was not brought up for a vote by states parties, rather it was approved by Conference President Ambassador Jayantha Dhanapala. Agreement was achieved only on the extension component of the conference.

27 As for the 2005 NPT RevCon: “In 2005 Cairo was willing to block the NPT Review Conference from making progress on any other issue unless progress toward such a NWFZ was achieved, and may be prepared to do so again at the 2010 Review Conference in May.” Pierre Goldschmidt, “Let's Start with a Nuclear-Test-Free Zone in the Middle East,” Carnegie Endowment for International Peace, April 29, 2010, <http://carnegieendowment.org/2010/04/29/let-s-start-with-nuclear-test-free-zone-in-middle-east-pub-40711#3>. As for the 2015 NPT RevCon: “While the Middle East disarmament question was the official—and widely reported—reason why there was no outcome document at the NPT Review Conference, the disagreements straining the nuclear disarmament regime run much deeper,” Cesar Jaramillo, “NPT Review Conference: No Outcome Document Better than a Weak One,” Bulletin of the Atomic Scientists, June 3, 2015.

28 See, for example, Elaine M. Grossman, “Egypt Stages NPT PrepCom Walkout over Failure to Convene Mideast WMD Summit,” Global Security Newswire, <www.nti.org/gsn/article/egypt-stages-walkout-over-failure-convene-mideast-wmd-summit/>.

29 As of February 2016, there were 120 state members in the NAM, and seventeen observers, of which twenty-two were Arab countries. Nuclear Threat Initiative (NTI), <www.nti.org/learn/treaties-,and-regimes/non-aligned-movement-nam/>.

30 Tariq Rauf and Rebecca Johnson, “After the NPT's Indefinite Extension: The Future of the Global Nonproliferation Regime,” Nonproliferation Review, Vol. 3, No. 1 (1995), p. 30.

31 Emily B. Landau, “2010 NPT RevCon: Final Results and Implications for Israel,” INSS Insight No. 185, June 3, 2010.

32 “Resolution on the Middle East,” The Conference of the States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.1995/32/RES/1, May 11, 1995.

33 Convention on the Prohibition of the Development, Production and Stockpiling of the Bacteriological (Biological), and Toxin Weapons, and on their Destruction (BWC), March 26, 1975; the Anti-Personnel Mine Implementation and Support Unit refers to the Convention of the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines, and on Their Destruction, also known as the “Ottawa Treaty,” March 1, 1999.

34 The BWC Implementation Support Unit operates within UNODA. See UNODA, “Implementation Support Unit,” <www.un.org/disarmament/geneva/bwc/implementation-support-unit/>.

35 Attempts to promote negotiations on the MEWMDFZ have been made in several international and regional fora since 1991, including the ACRS talks, the Barcelona Process, and the UfM. See above, footnote 12. November 1995); the Union for the Mediterranean (UfM), July 2008. On the Israeli approach to the ACRS, see statement by Eytan Bentsur, Director General of the Ministry of Foreign Affairs before the Conference on Disarmament, Geneva, September 4, 1997, Israel Ministry of Foreign Affairs, <http://mfa.gov.il/MFA/MFA-Archive/1997/Pages/Israel-s%20Approach%20to%20Regional%20Security-%20Arms%20Contr.aspx>.

36 Other relevant international organizations include the Organisation for the Prohibition of the Use of Chemical Weapons (OPCW), the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO), and the IAEA.

37 The Arab states’ draft proposal at the 2015 RevCon demanded the nominating of a new facilitator for the MEWMDFZ, and a new process under the auspices of the UNSC. See NPT/CONF.2015/WP.30, April 22, 2015.

38 Nonbinding consultations would facilitate a good-faith effort that could lead to a more stable agreement in the future, primarily because their decisions will not be binding or enforceable. See Cordula Reimann, “Assessing the State-of-the-Art in Conflict Transformation,” in Alex Austin, Martina Fischer, Norbert Ropers, eds., Transforming Ethnopolitical Conflict (Wiesbaden: VS Verlag für Sozialwissenschaften, 2004), pp. 41–66.

39 Anthony Wanis-St. John and Darren Kew, “Civil Society and Peace Negotiations: Confronting Exclusion,” International Negotiation, Vo. 13, No. 1 (2008), pp. 13–14.

40 Kane, “Planning Ahead,” p. 7.

41 Ariel E. Levite and Emily B. Landau, “Confidence and Security Building Measures in the Middle East,” Journal of Strategic Studies, Vol. 20, No. 1 (1997), pp. 163–64.

42 Emily B. Landau, Egypt and Israel in ACRS: Bilateral Concerns in a Regional Arms Control Process (Tel Aviv: Jaffee Center for Strategic Studies, 2001).

43 Currently, UNODA operates three UN Regional Centers for Peace and Disarmament: in Latin America and the Caribbean, Asia and the Pacific, and Africa. See <www.un.org/disarmament/disarmsec/regional-centers/>. See also Michael D. Yaffe, “Promoting Arms Control and Regional Security in the Middle East,” Disarmament Forum, Vol. 2 (2001), pp. 20–22.

44 For elaboration of the details and challenges of creating the MEWMDFZ, see Kane, “Planning Ahead.”

45 Emily B. Landau and Shimon Stein, “2015 NPT RevCon: WMDFZ Conference off the Table, for Now,” INSS Insight No. 705, June 3, 2015.

46 Sabel, Procedure at International Conferences, pp. 335–46.

47 As was addressed by the IAEA Director General in 2005, and including Palestine, which is a member of the League of Arab States, as well as the emergence of the state of South Sudan in 2011. “Application of IAEA Safeguards in the Middle East,” IAEA, GOV/2005/53-GC(49)/18, August 1, 2005.

48 Sara Kristine Eriksen and Linda Mari Holøien, “From Proliferation to Peace,” Nonproliferation Review, Vol. 17, No. 2 (2010), p. 284; Emily B. Landau, “Egypt's Nuclear Dilemma,” Strategic Assessment, Vol. 5, No. 3 (2002), pp. 22–26.

49 NPT preamble and Article 4.

50 “Towards a Regional Dialogue in the Middle East: An Israeli Perspective,” NPT/CONF.2015/36, April 30, 2015.

51 Claudia Baumgart and Harald Müller. “A Nuclear Weapons-Free Zone in the Middle East: A Pie in the Sky?” Washington Quarterly, Vol. 28, No. 1 (2004), p. 48.

52 Elena Ianchovichina, Shantayanan Devarajan, and Csilla Lakatos, Lifting Economic Sanctions on Iran: Global Effects and Strategic Responses (Washington, DC: World Bank, 2016).

53 Eitan Barak, “Israel Joining the Non-Proliferation Treaty: Time for a Re-evaluation?” UNIDIR Disarmament Forum, No. 4 (2005), pp. 95–99.