Arms control challenges faced by the Obama administration.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 9:00 a.m., Friday, March 26, by its moderator, Michael J. Matheson, of George Washington University Law School, who introduced the panelists: David Koplow, of Georgetown University Law Center; Newell Highsmith, of the U.S. Department of State, Office of the Legal Adviser; and Michael Mattler, of the Senate Foreign Relations Committee.


The title of today's panel is "Arms Control Challenges Faced by the Obama Administration." As I'm sure you know, the Obama administration came into office with an ambitious program with respect to arms control and non-proliferation. Among the objectives that the administration cited were some of the following: first, a reduction and eventual elimination of nuclear weapons, which presumably will start with the apparently imminent signing of a new Strategic Arms Reduction Treaty; a global ban on nuclear testing, which presumably will be kicked off by an attempt to ratify the Comprehensive Test Ban Treaty by the United States; a new treaty ending the proliferation and production of fissile materials for nuclear weapons purposes; a strengthening of the Non-proliferation Treaty, including the strengthening of international inspections and enforcement mechanisms; some kind of new framework for civil nuclear cooperation which would ensure access to peaceful nuclear power by those who observe non-proliferation restrictions; some form of vigorous response to possible violations by states like North Korea and Iran of their obligations; and a new international effort to secure vulnerable nuclear materials.

So this morning we are going to be talking about some or all of these issues with particular reference to legal issues presented by them, and for that purpose, we have a panel composed of three very distinguished and experienced experts in this field who have worked in this area both in academia and in public service.

On my far left is Newell Highsmith, who has been an attorney in the Office of the Legal Adviser at the State Department since 1987, who has specialized during that period in nonproliferation and arms control and who currently is the head of the office within the Legal Adviser's Bureau that deals with these issues.

Next to him is David Koplow, who has been a professor at Georgetown Law School since 1981, who has taught courses, among other things, dealing with these same issues. Previous to that, he was in the Arms Control and Disarmament Agency both as an attorney and as a Special Assistant to the Director, and then as Deputy General Counsel in the Department of Defense, and he is currently on leave from Georgetown serving as the Special Counsel for Arms Control in DoD.

To my immediate left is Mike Mattler, who is the Minority Counsel to the Senate Foreign Relations Committee and the Principal Legal Adviser to Senator Lugar, and before that he was an attorney in the Legal Adviser's Office for 12 years.

Here is how the panel is going to go this morning. We're going to begin by opening presentations from each of our experts, who will deal with one or more specific aspects of this area. Then I'm going to give each panelist an opportunity to comment on what the others have said. Then we will open for questions and comments, and finally, I will give the panelists an opportunity to say anything in conclusion that they may want to.

So here's our program, and let's begin it right away with Newell Highsmith.

* George Washington University Law School.


I wanted to start today talking about the Nuclear Non-Proliferation Treaty. My office has also been working on the START Treaty, which is currently being wrapped up, and preparing for ratification to CTBT and for negotiation of an FMCT as well as the other issues that Mike mentioned being on the President's agenda. So I could also take questions on those at the conclusion.

But I wanted to talk about the NPT because we are coming up in May for the month-long Review Conference of the Nuclear Non-Proliferation Treaty, which just passed its 40th anniversary. There has been a lot of discussion in the press, and among governments, about whether the NPT is in crisis because of the challenges that are currently out there, which are sort of obvious ones--North Korea, Iran, and to a somewhat lesser degree, Syria.

So I wanted to start by talking about the basic deal of the NPT. It is commonly understood to have three pillars that constitute the treaty. The first pillar is the non-proliferation pillar, and that is the pledge by the nuclear weapon states not to transfer or assist non-nuclear weapon states in acquiring nuclear weapons. The NPT defines "nuclear weapon states" in such a way that there really are, and can be, only five recognized nuclear weapon states under the treaty: the United States, the United Kingdom, France, China, and Russia. The other part of the non-proliferation pillar is that the non-nuclear weapon states pledge not to manufacture, acquire, receive, or seek or receive assistance in developing nuclear weapons.

The second pillar under the NPT is the disarmament pillar, and it exists because there are five recognized nuclear weapon states in the treaty, and they undertake to pursue negotiations in good faith on nuclear disarmament.

The last pillar is the nuclear energy cooperation pillar, where the parties undertake to facilitate and have a right to participate in, exchange of nuclear technology for energy and other peaceful purposes.

So these three pillars have been the core of the treaty, and what I'd like to discuss is that there has been tension between them, and as lawyers at the State Department working on these issues, and for other governments as well, you have to deal with this tension that arises among the different pillars. The most obvious tension, and the first tension I want to discuss, is that between the non-proliferation pillar and the cooperation pillar. It arises because the technologies that you need to develop a nuclear energy program also can be the technologies that are useful for a nuclear weapons program; specifically, the two gateway technologies for a nuclear weapons program are the ability to enrich uranium and the ability to reprocess spent fuel to extract plutonium. The tension between these two pillars was highlighted in particular first in the aftermath of the war with Iraq in the early 1990s when we discovered that Iraq had been engaging in a wide array of efforts to develop the technologies for nuclear weapons. More recently, the concern has been heightened by the activities of Iran. Both countries are parties to the NPT and purport to have only peaceful activities and who have accepted safeguards from the IAEA, but nonetheless were covertly developing the capability to manufacture nuclear weapons.

Because of the non-proliferation risks of developing enrichment and processing, it is questioned whether in fact the non-proliferation imperatives mean that those non-nuclear weapon states should not be deemed to have a right to develop enrichment and reprocessing, and this has led to tension in the legal field. I think there is an acknowledgement that they have a fight to have reactors, to have research reactors for pharmaceuticals and that sort of thing, but there has been a suggestion that maybe because of non-proliferation imperatives, their rights do not extend to the more sensitive technologies of enrichment and reprocessing. I think this is one of the areas in which, as attorneys, our view has been that the focus should not be on whether they have a fight or not; rather, the focus should be on finding creative solutions to this tension, and over the last 10 or 15 years a number of solutions have been developed.

These solutions focus on the self-interest of the countries involved, these non-nuclear weapon states, because the countries that join the NPT and abide by the NPT do it out of self-interest, not because they think it's the best thing for the world necessarily, but because they have concluded that development of nuclear weapons in the end is not going to be productive for them so they want to improve their relations with the rest of the world, or they want to get access to nuclear technology and feel that the best way to do that is to join the NPT and comply with it. The NPT's track record in that regard is not that bad historically.

When I first started working in this area 20 years ago, Argentina and Brazil were not in the regime; Argentina and Brazil now are. South Africa had developed nuclear weapons, but over the course of time, determined that its self-interest did not go in that direction, and they got rid of their nuclear weapons and joined the NPT. Libya is another example. Further examples are Belarus, Kazakhstan, and Ukraine, who had nuclear weapons on their territory at the breakup of the Soviet Union but concluded that it was in their better interests to join the NPT as non-nuclear weapon states and give up those nuclear weapons.

So there is a track record of success here, and there are efforts to try not to deny countries full access to peaceful nuclear development but to encourage them instead to focus their self-interest on the things that are going to be the most economical for them, such as reactors to generate energy, rather than enrichment and reprocessing technologies. In that way we minimize the risk of proliferation.

Among the efforts that are underway are international fuel banks. The Russians have a pretty advanced proposal to develop one; the idea is that the Russians will place a large amount of reactor fuel or make available a reserve of reactor fuel that the IAEA could then sell to countries who need it. The idea again is that if countries feel confident that they're going to have access to nuclear fuel, they will not feel the incentive to develop enrichment or reprocessing capabilities.

Nuclear fuel assurances are another way to try to achieve...

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