On May 18, 2006, the United States tabled drafts of a negotiating mandate and text for a fissile material cut-off treaty (FMCT) in the Conference on Disarmament (CD) in Geneva. [1] The former would establish the terms for the debate on the issue within the CD; the latter offers a concrete proposed text for the treaty, which would ban the further production of fissile material for nuclear weapons. In an effort to jump-start progress in the CD, which has been deadlocked for the past nine years, then-Acting Assistant Secretary of State for International Security and Nonproliferation Stephen Rademaker proposed commencing immediate debate on the issue, with the aim of agreeing on a text for signature by the end of the year.

It has long been agreed that the next major initiative to be taken by the CD should be the negotiation of an FMCT; however, the 65-member body has not been able to engage in substantive negotiations since 1996 due to disagreements over its program of work. Many representatives, therefore, welcomed the U.S. proposals as a significant and positive development in the stalled CD, but this receptivity was qualified by reminders of pre-existing national positions on other matters pending before the body that must still be reconciled for progress to be made. In addition, the U.S. draft treaty did not include a set of detailed formal verification measures (including on-site inspections), which most countries believe should be part of an eventual FMCT negotiation and agreement.

The U.S. proposals are being studied carefully in the capitals of the CD member states, but to date, there has been little official reaction to the U.S. initiative, apart from initial statements in the Conference. The long-held positions that have led to the CD stalemate, however, have not changed. Although some states, particularly from the European Union (EU), have demonstrated a considerable degree
of flexibility in accommodating the divergent positions of other CD members, from the perspective of many key states, prospects for progress on negotiating an FMCT will depend on the flexibility of the United States with regard to issues that others have sought to have examined within the framework of the Conference.

FMCT “Hostage” to the Prevention of an Arms Race in Outer Space (PAROS)
Discussions?
Many states recognized the U.S. proposals as a step that may provide an opportunity for the CD to begin substantive work and may create momentum for gaining agreement on an approach to doing so. However, the key hurdle preventing the Conference’s engagement in substantive work has been the lack of consensus over a “package approach” to addressing the range of issues on the CD’s agenda. While Rademaker criticized the widespread insistence on linking the negotiation of an FMCT to these other issues as “an unconscionable tolerance for hostage-taking,” and declared that delegations must accept that “the package approach to a program of work will never work,” he also suggested that the United States would be willing to discuss, but not negotiate, “traditional” issues alongside the formal FMCT negotiations. [2] This suggestion was one of the most welcome aspects of the U.S. initiative, because it appeared to offer a path to break the stalemate regarding the CD’s program of work and begin negotiations.

The issues that have been traditionally tied to FMCT negotiations are nuclear disarmament, negative security assurances (i.e. assurances by the nuclear weapon state parties to the nuclear Nonproliferation Treaty that they will not use nuclear weapons against non-nuclear weapon state parties to the treaty), and the prevention of an arms race in outer space (PAROS). While most states continue to support the proposed program of work detailed in the January 2003 Five Ambassadors Initiative (the A-5 proposal), which calls for consideration of all four issues, many states, and the EU in particular, have been willing to demonstrate some flexibility to allow FMCT negotiations to move forward, without being linked to work on the other issues. [3]

However, Canada, China, and Russia remain adamant that the establishment of a body to discuss PAROS must accompany any negotiations on an FMCT and are likely to withhold their support for any program of work that does not include a consideration of the PAROS issue. Because the CD works on the basis of consensus, these states are thus in a position to block the start of FMCT negotiations unless their views are accommodated.

Canada, for example, responded to the U.S. proposals with the insistence that negotiations on an FMCT must be part of an agreed program of work, thus linking the negotiations to progress on other issues. Although Canada’s representative to the CD suggested that the United States should be amenable to the A-5 proposal, since it provides for the “negotiation” of an FMCT but only a “discussion” of the other three issues, Canada views the issue of PAROS as a priority, along with the FMCT. Rademaker’s indication that the CD could continue to discuss other issues as it conducts FMCT negotiations is seen by Canada as an encouraging opportunity for the CD to move forward on both issues. Canadian officials have suggested that Canada will urge other states to demonstrate similar flexibility, in order to permit the CD to resume substantive work – perhaps suggesting that Canada may push a package approach that includes only the FMCT and PAROS, thereby giving up the inclusion of nuclear disarmament and security assurances. [4]

In their responses to the U.S. introduction of the draft FMCT mandate and text, China and Russia both reiterated their positions regarding a packaged program of work, with Russia declaring that the draft FMCT text “cannot serve as an obstacle to our work on other issues,” and China specifying that the Conference should start substantive work on all four issues on the agenda. [5] As with Canada, PAROS is also a priority for these two states, which view U.S. consideration of space-based anti-missile systems and other space-based weaponry as potential threats to their strategic nuclear deterrents and as potential precipitants of an outer-space arms race. China has been especially adamant in voicing its opposition to the U.S. preference for engaging in work solely on the FMCT, stating on June 8, 2006, that “an idea that aims at circumventing the ‘program of work’ and initiating negotiation solely on one issue while refraining from substantive work on other issues will not fly.” [6] China also recalled that, while it prefers the negotiation of a legally binding instrument on PAROS, it stepped back from this position in 2003 and agreed to a discussion mandate, rather than a negotiating mandate on the PAROS question, as detailed in the A-5 proposal. This public recollection signaled that, since China had already made a concession on this matter, it is not prepared to give up anything more.

Though members of the Non-Aligned Movement remain intent on establishing bodies to deal with nuclear disarmament and negative security assurances, the states that are the most willing to block consensus agreement on a program of work to ensure that a package approach is adopted are concerned primarily with including PAROS. The commencement of FMCT negotiations, therefore, is unlikely to take place without some understanding on the discussion of outer space issues.

Verification Debate Likely – Even Without a Mandate
In line with the U.S. position that an FMCT cannot be effectively verified, the U.S. draft negotiating mandate does not provide the traditional reference to verification encompassed in the still-controlling Shannon Mandate for negotiating an FMCT, adopted by the CD in 1995, nor does the U.S.-proposed treaty text include provisions for an international verification mechanism. [7] Since the U.S. announcement of this position in 2004, FMCT verification has been a point of contention for many other CD members. However, the absence of a verification regime in the U.S.-proposed mandate and text need not preclude the start of negotiations if the United States is prepared to show flexibility and to allow the possibility for such a mechanism to be discussed once negotiations begin.

Most other CD members, including key U.S. allies, such as the United Kingdom, view the U.S. draft mandate and text as a way forward under the interpretation that it includes “no preconditions.” That is, the fact that verification provisions may not have been included does not mean that they cannot be discussed. The day after the introduction of the U.S. FMCT proposals, the CD held a pre-scheduled discussion focused on FMCT verification and compliance, in which a number of states, including Mexico, Iran, and South Africa, stressed the importance of international verification. Japan also indicated that greater exploration into the type of verification regime that could be encompassed under an FMCT would be needed, suggesting that CD members would benefit from further engagement with U.S. government experts to explore the U.S. position on verification. Australia has advanced a compromise in which the basic treaty framework would be adopted early to establish a norm regarding the termination of the production of fissile material for nuclear weapons, while more technical consideration of verification would be taken up in subsequent sessions.

Unless the United States indicates that its mandate is intended to preclude any consideration of verification provisions, in which case Washington is unlikely to achieve consensus, any ad hoc committee established to negotiate an FMCT will have to address this issue. This does not mean however, that verification measures would necessarily be included in any final text.

India: A Reluctant FMCT Partner
One state that is under particular pressure to support the U.S. draft text is India, as its position on this issue, as well as on any resulting treaty, would likely impact attitudes in the U.S. Congress toward approving U.S. civilian nuclear cooperation with India. The renewal of such cooperation after a decades-long U.S. embargo was promised under an agreement signed by President George W. Bush and Indian Prime Minister Manmohan Singh on July 18, 2005, and further elaborated in their March 2, 2006, joint statement. As part of this agreement, India agreed to work with the United States in negotiating an FMCT. However, contrary to the position reflected in the U.S. proposed draft text, India’s maintains that, “an FMCT should incorporate a verification mechanism in order to provide the assurance that all States party to it are complying with their obligations under the Treaty.” [8] One recent opinion piece in the Indian press suggested that, after Rademaker’s introduction of the U.S. proposals, India indicated its willingness to work with the U.S. draft so as not to be seen by the U.S. Congress as opposing the U.S. proposal prior to Congress’s approval of the U.S. nuclear cooperation deal:

India’s position on FMCT was that it must be non-discriminatory; multilateral; and internationally and effectively verifiable. However, barely hours after the U.S. introduced its FMCT draft without verification provisions, India made another statement, suggesting that it was willing to work with the U.S. draft. The idea perhaps was not to be seen to be opposing the US draft on FMCT in deference to the U.S. Congress even if it did not allow for international verification. [9]