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Fissile Material Cut-off Treaty

Background

Key players
Critical issues
Definitions
Existing stock
Verification
How to move forward


Background to the FMCT

Since the entry into force of the nuclear Non-Proliferation Treaty (NPT), a significant issue for the disarmament and arms control community has been the continued production of fissile materials—the key ingredient for producing nuclear weapons. Many states have long been calling for a ban on the production of these materials. The issue has been on the UN’s agenda since 1957 and on the proposed agenda of the Conference on Disarmament (CD) for many years. 

In December 1993, the UN General Assembly adopted by consensus resolution 48/75 recommending the negotiation of a non-discriminatory, multilateral, and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices. This treaty is commonly known as a Fissile Material Cut-off Treaty (FMCT). Since then, the immediate commencement and early conclusion of FMCT negotiations in the CD has been endorsed by all states party to the NPT at the 1995, 2000, 2005, and 2010 NPT Review Conferences. Furthermore, the negotiation of an FMCT was also agreed as one of the 13 practical steps towards disarmament at the 2000 NPT Review Conference.

Nevertheless, the bulk of what has taken place in the CD consists of informal discussions regarding the treaty’s purpose; definitions and scope; the production of fissile materials for non-explosive purposes and the role of the International Atomic Energy Agency (IAEA); transparency and stockpiles of fissile materials; compliance and verification; and other provisions including settlements of disputes, entry into force, ratifications, depositaries, duration, and conditions for withdrawal. Nevertheless, in 2010, for the twelfth year in a row, the CD was unable to establish a committee to begin formal negotiations on an FMCT.  

From early on, a major obstacle to launching negotiations has been the issue of existing stocks. While some states, including the United States, United Kingdom, and Japan, favour a treaty which only limits future production of fissile materials, other states, such as those belonging to the Non-Aligned Movement, believe that the treaty should also address fissile materials already produced and stockpiled. This would require nuclear weapon states to irreversibly downblend existing stocks of weapons-grade fissile materials, ensuring they could never be used for weapons purposes again. Some states also think an FMCT should include mechanisms for the management of fissile material. 

Another contentious element is the scope of any potential fissile materials treaty. Although most experts agree that an FMCT would most certainly ban the production of plutonium and highly-enriched uranium, it is not likely that the treaty would include other elements such as tritium, for example, which is used to amplify the explosive power of nuclear weapons. Given that tritium has a radioactive half-life of 12 years, the inclusion of it in an FMCT would, over time, limit the destructive power of nuclear weapons that contain this element because states would be unable to replace the decaying tritium in existing weapons. Other materials, such as depleted uranium, neptunium, natural uranium, plutonium 240 and 242, americium, curium and californium, though not fissile, are also used in nuclear weapons programs. 

On 25 January 1994, the CD appointed a Special Coordinator, Ambassador Gerald Shannon of Canada, to investigate the views of member states on the most effective way to negotiate a fissile materials treaty which met the requests of the UN General Assembly. The resulting report, CD/1229, came to be known as the “Shannon Mandate” and proposed that an ad hoc committee be convened to pursue negotiations and settle several of the outstanding issues—including whether existing stocks should be included in the treaty or not. Ultimately, efforts to establish the committee failed, but many states continue to refer to the Shannon Mandate as the basis for future negotiations.

For years, China and Russia insisted that starting work on the prevention of an arms race in outer space be linked to starting work on an FMCT in the CD. In August 2003, China and Russia broke from this position, and agreed to go forth with FMCT negotiations based on the Shannon Mandate.

Also in 2003, Japan—a leader in the campaign for an FMCT—produced a draft text for a potential treaty after conducting extensive informal consultations with many key players.

The United States, for its part, did not even announce its position on an FMCT publicly until July 2004 when its permanent representative to the CD, Jackie Wolcott Sanders, declared that while the US was in favor of launching negotiations on an FMCT, it did not believe such a treaty could be sufficiently verifiable. The US also tabled a draft treaty on 18 May 2006, which many delegations argue is far removed from the original concept of a non-discriminatory, verifiable treaty. Since the election of US President Barack Obama, however, Washington’s support for an FMCT has markedly increased. 

Many states believe that specific references to matters such as verification and existing stocks in the negotiation mandate are crucial, claiming that if negotiations begin “without any preconditions,” the more powerful nuclear weapon states will steer negotiations any way they please, eventually forcing other states to accept a treaty that is not in their best interests. Pakistan has been by far the strongest advocate for requiring an agreement to include existing stocks in any fissile materials treaty as a prerequisite for commencing formal negotiations on an FMCT. 

The Pakistanis assert that a fissile materials treaty which does not address existing stocks will “freeze existing asymmetries” that threaten Pakistan’s security and is therefore unacceptable. This is undoubtedly a manifestation of Pakistan’s concern with regional rival India. India not only has a much larger stockpile of weapons-grade nuclear material, but has also entered into a nuclear cooperation agreement with the United States which allows it to import nuclear fuel from the US for energy purposes, thereby freeing up fissile material produced domestically to potentially be used for military purposes. Moreover, Pakistan has repeatedly stated that it wants negotiations for treaties on negative security assurances and weapons in outer space to take place before it will discuss an FMCT, arguing that there has been far too much focus by the international community on nuclear non-proliferation to the detriment of nuclear disarmament. 

In 2006, the Canadian delegation introduced a resolution at the CD calling for the immediate start of negotiations on a fissile materials treaty “with the goal of restoring consensus within the First Committee around this issue.” However, during consultations, the delegation found that governments’ views on the “conditions under which those negotiations should start” varied widely. The Canadians withdrew the resolution, explaining that a resolution that did not meet with consensus in the First Committee might not “provide an appropriate signal to the CD”. The Canadians would not table a similar resolution again until 2009, when it was adopted without a vote at First Committee. 
In 2009, the long-awaited start of negotiations on an FMCT never seemed closer, as the CD finally adopted a programme of work which included a fissile materials negotiating mandate. Regrettably, the CD was unable to implement its programme before the end of the 2009 session—primarily due to reservations by the Pakistani delegation. Given that the Conference’s programme of work does not carry over from one year to the next, the CD had to begin the whole process anew the following year, where it failed once again to produce a new programme of work. In 2010, the CD was back in deadlock again, with Pakistan as the only state opposing the launch of negotiations of an FMCT based on the Shannon Mandate.

This opposition continued during the 2010 First Committee meetings, where there was nothing to indicate that the impasse on this issue would be broken. Canada’s 2010 resolution entitled “Treaty banning the production of fissile materials for nuclear weapons or other nuclear explosive devices”—a virtually identical version of the resolution it tabled during 2009—was adopted by a vote of 163-1-2, but not surprisingly Pakistan continued to oppose plans to begin negotiations without preconditions. Moreover, Pakistan also voted against any reference to negotiations of an FMCT in the CD in any other resolutions tabled at First Committee.

Several speakers and delegations, both in the Conference on Disarmament and at the First Committee meetings in 2010, highlighted the inconsistency of Pakistan blocking progress in the CD while joining consensus on the Canadian resolution calling for negotiations of a treaty dealing with fissile materials in 2009. Consequently, several delegations at First Committee in 2010 including those from the United States, Japan, Liechtenstein, and Australia announced they would support moving negotiations for a fissile materials treaty to another forum if the deadlock in the CD continued.

Key players 
Whatever the scope of the eventual FMCT, most of the non-nuclear weapons states that are party to comprehensive safeguard agreements associated with the NPT will already satisfy the requirements of an eventual FMCT. These states have undertaken not to produce or acquire nuclear weapons or other nuclear explosive devices, and to accept International Atomic Energy Agency (IAEA) safeguards on all their nuclear material to verify this.

The states that will most be affected by an FMCT are the P5: the United States, China, France, Russia, and the United Kingdom; and the nuclear weapons possessing states that are not party to the NPT: India, Pakistan, and Israel. Other states that also will be affected by such a treaty are those which produce the greatest amount of fissile material for non-military purposes, such as Canada, Australia, and Japan. 

Additionally, while the 35 member states of the Zangger Committee (also known as the "NPT Exporters Committee") have different positions on the critical issues that have prevented the launch of negotiations—definitions, existing stocks and verification—they all have a special interest in the potential scope and nature of any FMCT since a comprehensive treaty could, in theory, universalize export control.

Critical issues of FMCT

The concept of a cut-off of the production of fissile material for nuclear weapons has been discussed for a long time, and the agreement on a mandate (known as the Shannon Mandate) to begin negotiations in the Conference on Disarmament (CD) broke down in 1995. Since then, there has been very little formal progress. 

There are three draft treaty texts which have been presented as documents of the CD, one presented by the United States in May 2006, another submitted Greenpeace International in April 2004 and a third in September 2009 by the International Panel on Fissile Material (IPFM). 

An FMCT will require many technical issues to be resolved, from actually defining fissile material to ensuring that the treaty is effective by developing specific procedures for verification. There are a number of different approaches to these issues ranging from a simple approach to a more comprehensive one.

Definitions

How fissile material is defined is important as it has direct implications on the scope of the treaty. But it is not only fissile material that has to be defined - production, civilian use, and military use also need clarification. 

Official definitions from the International Panel on Fissile Material:

Fissile material: Material that can sustain an explosive fission chain reaction - notably highly enriched uranium or plutonium of almost any isotopic composition.

Fissionable material: A heavy isotope with an atomic nucleus that can undergo fission when struck by a neutron. Uranium-238 is a fissionable isotope, in that it can be fissioned by high-energy neutrons. Unlike uranium-235, which is fissile as well as fissionable, [uranium-238] cannot sustain a fission chain reaction. 

Some delegations argue that a treaty should only include those materials most likely to be used in nuclear weapons; others have argued that it should focus on wider range of weapons-grade materials. "Weapon-grade" or "weapon-usable" are two different definitions often used by states.

In its draft treaty, the United States defines fissile material as "(a) Plutonium except plutonium whose isotopic composition includes 80 percent or greater plutonium-238 (b) Uranium containing a 20 percent or greater enrichment in the isotopes uranium-233 or uranium-235, separately or in combination or in (c) any material that contains the material defined in (a) or (b) above." 

"Produce fissile material means (a) To separate any fissile material from fission products in irradiated nuclear material; (b) To enrich plutonium-239 in plutonium by any isotopic separation process; or (c) to enrich uranium-233 or uranium-235 in uranium to an enrichment of 20 percent or greater in those isotopes, separately or in combination, by any isotopic separation process."

Russia calls it weapon-grade uranium and plutonium for the purposes of nuclear weapons. Italy used the definition "plutonium and/or highly enriched uranium enriched over 20 percent U235" in their working paper. Japan used the definition from Article 20 of the IAEA statue - plutonium 239, uranium 233 and uranium enriched in the isotopes 235 or 233. 

In Greenpeace’s 2004 comprehensive treaty, the definitions used were slightly different than those in the US draft treaty. Greenpeace defined fissile material as "an isotope whose nucleus readily fissions after absorbing a slow (thermal) neutron, emitting 2 or 3 neutrons, and includes uranium-235, plutonium-239 and uranium-233". Their draft treaty also had specific definitions for weapon-usable, weapons-usable plutonium, weapons usable uranium, production, separation, processing, enrichment plant, laser isotope separation, controlled storage, and fuel elements.

Existing Stocks

Differences on the question about existing stocks were one of the main reasons that negotiations stalled in 1995. There are still great differences between positions on this matter. The United States and the Russian Federation have the largest stockpiles, and most other states are waiting for these two to take the lead. The nuclear weapon states have either stated or indicated that existing stocks will not be included in the treaty. The point of the treaty is, according to those states, to quantitatively freeze the maximum level of nuclear material around the world.

Many other states, however, including Pakistan, South Africa, and Brazil strongly urge that this treaty include existing stocks. The Pakistani delegation, for example, argues that it is necessary to include past production of fissile materials to prevent the expansion of existing global power inequalities. Likeminded states affirm that there is enough existing fissile material in the world to create new and more sophisticated nuclear weapons. Some of these states sharing this view argue that the term “Fissile Material Treaty” would be more appropriate, as “Fissile Material Cut-off Treaty” implies merely a halt in production.  

A fissile materials treaty which does not address existing stocks is seen by many as useless and weak. The question is whether to go along with a streamlined cut-off that at least is a cut-off or to have no treaty at all? However, even if an FMCT were adopted which banned future production it would still be necessary to ensure that fissile material produced in the future is not falsely declared as having been produced prior to the treaty’s entry into force. Thus, the production of all nuclear material for civil and military purposes would need to be put under effective safeguards. This brings us to yet another critical issue of an FMCT: verification.

Verification

While the non-nuclear weapon states that are party to the NPT have already agreed to accept comprehensive safeguards by the IAEA, the nuclear weapon states and the states which are not party to the NPT are not legally obligated to accept such safeguards.  Many states believe that a cut-off verification regime should be used as a means to rectify this situation and impose a more equal safeguards standard on the nuclear weapon states. Supporters of this idea argue that comprehensive safeguarding would foster greater transparency among nuclear weapon states, thereby decreasing mutual suspicions, and enhancing wider confidence in their compliance. 

The United States has stated in the past that even with extensive verification mechanisms confidence in the ability to monitor compliance with an FMCT would not be high. The US had also said that not only would negotiating verification provisions prolong an already difficult task, but it would actually provide a dangerous false sense of security. 

Other states are of the opinion that a verifiable FMCT will effectively control the spread of nuclear materials by enhancing the proportion of weapons-usable material under international safeguards, strengthen nuclear export control, and reduce the perceived discrimination of the present NPT regime by some states. Moreover, many states argue that one of the greatest benefits that would come as a result of the adoption of an FMCT with a strong verification mechanism is that terrorist acquisition of fissile material would be significantly harder.

How to move forward

The issue of an FMCT is often referred to "ripe for negotiations" and touted as the most likely next step for the Conference on Disarmament. Nevertheless, since this body has been unable to launch negotiations thus far, it is possible that an ad hoc committee be created through the General Assembly’s First Committee to address the issue. As Australian Ambassador to the UN Gary Quinlan stated, “the CD does not have a monopoly on … negotiations and … other treaties have been successfully negotiated outside the CD.” 

There is nothing stopping members of the CD from coming together and negotiating in informal groups, but this does not occur because they all recognize that it is essential for disarmament treaties to include key states: States with much at stake will not sign a treaty unless they played an active role in shaping the agreement. A case in point is the United States’ refusal to sign the 1997 Mine Ban Treaty because it did not participate in negotiations. 

Creating an ad hoc committee through the General Assembly is possible and has benefits. Unlike the CD, which is limited to only 65 member states, the General Assembly is open to all states, making it possible to build momentum and generate political from many more actors in order to put more pressure on those states opposing an FMCT. Furthermore, the General Assembly can simply put an issue to a vote without struggling to achieve consensus. 

Another suggestion on how to facilitate the commencement of negotiations for an FMCT was made by The Weapons of Mass Destruction Commission in 2006. In its report, the Commission strongly recommended that the CD abolish the rule requiring consensus on procedural items—a notion supported by many states.