136 Cablegram from Shaw to Department of External Affairs

New York, 13 May 1968

UN 791. Confidential Immediate

Non-Proliferation Treaty

Following is text of aide memoire handed to me this morning, 13th May, by Ambassador Fisher.

Begins:

Under Article II of the proposed non-proliferation treaty each non-nuclear-weapon state party to the treaty undertakes '... not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices'. The Government of Australia has requested that the United States provide an interpretation of what would constitute the 'manufacture' of a nuclear weapon or other nuclear explosive device under the draft treaty.

While the general intent of this provision seems clear, and its application to cases such as those discussed below should present 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 factual situations, could satisfactorily deal with all such situations. Nevertheless, in order to respond to the question of the Government of Australia as constructively as possible, we would like to make some general comments on how the United States views the operation of the proposed treaty in regard to the question of the Australian Government.

The United States decided at an early stage that it would be impractical for the treaty to attempt to proscribe all research and development that might contribute to the manufacture of nuclear weapons or other nuclear explosive devices. Any such prohibition would have gone too far in restricting the development of peaceful uses of controlled nuclear energy and would have presented enormous verification problems.

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 non-compliance. Thus, the construction of an experimental or prototype nuclear explosive device would be covered by the term 'manufacture', as would the production of components which could only have relevance to a nuclear explosive device. Again, while the placing of a particular activity under afeguards 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 non-compliance.

It may be useful to point out, for illustrative purposes, several activities which the United States would not consider per se to be 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 fuelled power reactors, including research on the properties of metallic plutonium. Nor would Article II interfere with the development or use of fast breeder reactors under safeguards.

The United States fully understands the concern expressed by the Government of Australia that it not be put in a disadvantageous position vis-à-vis other non-nuclear-weapon states in Asia, and wishes to assure the Government of Australia that it will do everything it can to insure that the NPT will have no such consequence.

The Government of Australia has also raised several questions on the subject of safeguards under the non-proliferation treaty. We wish to take this opportunity to state our views on these questions as well.

We do not believe that it would be useful or desirable to raise at the United Nations General Assembly the question of an IAEA model agreement for the non-proliferation treaty, or additional interpretations for Article III. The question of model agreements involves a number of highly detailed, technical considerations which can best be handled in the context of the IAEA. We will wish to consult closely with the Government of Australia on these matters both bilaterally and in Vienna. In presenting Article III to the ENDC on January 18, 1968, the United States Ambassador, Adrian S. Fisher, stated general principles that should govern Article III, as follows:

  1. There should be safeguards for all non-nuclear-weapon parties of such a nature that all parties can have confidence in their effectiveness. Therefore, safeguards established by an agreement negotiated and concluded with the IAEA in accordance with the statute of the IAEA and the agency's safeguards system must enable the IAEA to carry out its responsibility of providing assurance that no diversion is taking place.
  2. In discharging their obligations under Article III, non-nuclear-weapon parties may negotiate safeguards agreements with the IAEA individually or together with other parties, and specifically, an agreement covering such obligations may be entered into between the IAEA and another international organization, the work of which is related to the IAEA and the membership of which includes the parties concerned.
  3. In order to avoid unnecessary duplication, the IAEA should make appropriate use of existing records and safeguards, provided that under such mutually agreed arrangements, the IAEA can satisfy itself that nuclear material is not diverted to nuclear weapons or other nuclear explosive devices.'

At the United Nations General Assembly, potential NPT signatories have differing interests as to Article III, and to raise at this time the question of a model IAEA agreement could upset the delicate compromise that has resulted in what we believe to be an effective Article III and could be inimical to Australian and US interests. We also believe this is true with regard to raising additional interpretations of Article III. On several of the specific points concerning safeguards raised by the Government of Australia, we wish to comment as follows:

A. Right to Reject Inspectors

Article 2 of the IAEA inspectors document permits a state to reject any inspector. This would give a state the right to object to any inspector from a state that has not accepted safeguards.

B. Mines

The safeguards to be applied under the non-proliferation treaty are those to be specified in agreements negotiated and concluded in accordance with the agency's statute and safeguards system. As in the case of safeguards agreements presently in effect with the IAEA, we expect that the NPT safeguards agreement will incorporate by reference the relevant portions of the agency's safeguards system documents. These documents specifically exclude mines or ore-processing plants from the definition of principal nuclear facilities. As the United States representative to the ENDC stated on February 21, 1968, '... changes made after the negotiation of a safeguards agreement could be applied by IAEA only with the consent of the parties to the safeguards agreement, a consent to be given either through some general procedure in advance or through subsequent modifications made in the agreements with the agency'. Thus, it is clear that a state will be able to decide for itself whether to accept any future extensions of the scope of the IAEA system.

C. Stockpiling of Material

Article XII(A) of the IAEA Statute sets forth rights and responsibilities that the IAEA will have 'to the extent relevant' to a particular arrangement. We understand that the IAEA has not regarded the third clause of section XII(A)5 (dealing with stockpiles) relevant to any safeguards agreement. Further, the Government of Australia can be assured that Article III safeguards have as their exclusive purpose the verification of the fulfilment of the obligations assumed under the treaty in order to prevent the diversion of nuclear energy from peaceful purposes to nuclear weapons or other nuclear explosive devices. The stockpiling of fissionable material by non-nuclear-weapon states is not prohibited by the treaty as long as the material is subject to treaty safeguards. Thus the stockpiling provision of Article XII(A)5 would not appear to be relevant to an NPT safeguards agreement.

The United States Government greatly appreciates the opportunity to explore fully and frankly with the Government of Australia its concerns regarding the non-proliferation treaty. We hope that the close consultations between the United States and the Government of Australia will continue in order to help bring into force, at an early date, a non-proliferation treaty that is widely acceptable and that will help to increase the security of all parties.

Ends.

[NAA: A1838, 680/10/2 part 5]