121 Cablegram from Bailey1 to Department of External Affairs

Ottawa, 19 April 1968

246. Confidential

Non-Proliferation Treaty

Your telegram 142,2 my 239 and earlier messages.3

After substantial inter-divisional consultations Legal Division, External Affairs, gave me this morning, 19th, a written answer to the seven questions which we put to them and which we have on several occasions discussed. The text is for the most part self-explanatory but I shall append a few supplementary notes.

2. The Canadian reply is as follows:

  1. As the first U.S.A. interpretation of Articles I and II of the N.P.T. points out, the treaty deals only with what is prohibited, not with what is permitted. Thus any activities of non-nuclear parties involving nuclear weapons or other nuclear explosive devices which do not constitute 'receiving the transfer or control' of them or 'manufacturing' or 'otherwise acquiring' them, would be legally permissible. The N.P.T. prohibits nonnuclear-weapon states party from receiving or manufacturing nuclear explosive devices. The extent to which this prohibition inhibits research, development and production in the field of nuclear explosive devices depends upon how broad an interpretation is given to the word 'manufacture'. A nuclear weapon state party may assist a non-nuclear weapon state party in any activity which does not constitute manufacture of a nuclear explosive device.
  2. Article IV(1) preserves the 'inalienable right' of states party to carry out research, development, production and use of nuclear energy for peaceful purposes and Article III(3) provides that 'The safeguards required by this Article shall be implemented in a manner designed to comply with Article IV of this Treaty and to avoid hampering the economic or technological development of the Parties or international cooperation in the field of peaceful nuclear activities -'. By virtue of these provisions, research and development carried out for a peaceful purpose would not be prohibited by the N.P.T. even though it may also have significance for the manufacture of a nuclear explosive device.
  3. To the extent that intent may be relevant to the obligations assumed under the treaty, it is for each state party to decide for itself whether a course of conduct revealed by I.A.E.A. safeguards inspection constitutes a violation of the treaty.
  4. The I.A.E.A. may require excess fissionable material produced from material supplied by I.A.E.A. to be deposited with the agency. The N.P.T. does not require, however, deposit with the I.A.E.A. of excess fissionable material produced from material supplied by sources other than the I.A.E.A. The disposition of such material would be for decision by the parties to the transaction in their multilateral or bilateral safeguards agreement, even though it would be subject to I.A.E.A. or I.A.E.A.- verified safeguards under the N.P.T.
  5. While the phrase 'nuclear weapons' in isolation is not necessarily confined to nuclear explosive devices, with one exception (Article VII) the articles of the N.P.T., though not the preamble, always use 'nuclear weapons' in the phrase 'nuclear weapons or other nuclear explosive devices'. The normal rules of construction would interpret 'nuclear weapons' in this context to be confined to nuclear explosive weapons and to exclude, for example, nuclear powered warships. We understand that this is the interpretation which is placed upon the words 'nuclear weapons' by the U.S. Government. Declarations by the parties negotiating the treaty concerning the meaning of 'nuclear weapons' may have the legal effect of giving a broader interpretation to those words.
  6. The N.P.T. requires non-nuclear weapons states party to conclude an arrangement with the I.A.E.A. implementing the safeguards requirement of Article III in accordance with the I.A.E.A. Statute and safeguards system. The relevant safeguards system is presumed to be the system in effect at the time the state party ratifies or accedes to the N.P.T. The N.P.T. places no obligation upon a state party to accept amendments to the safeguards system adopted subsequent to the conclusion of its agreement with I.A.E.A. under Article III.
  7. The N.P.T. appears to place no restraints on countries forming new regional groupings similar to Euratom provided such groupings do not derogate from the obligations of states party pursuant to their safeguards agreement with the I.A.E.A.

[matter omitted]

5. The Canadians appreciate the fact that the questions where, for the purposes of question (a), 'manufacturing' begins and ends as essentially a matter for the technicians to decide. The Canadian legal people themselves have not got much help from their own technicians on this but suspect that when squarely faced with the question they would be in disagreement among themselves as to the answer.

[NAA: A1838, 719/10/6 part 4]