Keynote Address*

• Publication year: 2011
• Citation: Vol. 40 No. 1

Keynote Address^*

Larry D. Johnson^**

Those are extremely kind words. Thank you, David. I do want to thank the Director of the Dean Rusk Center and the staff of the Georgia Journal of International and Comparative Law for their warm and hospitable welcome and for organizing this wonderful event.

I have to add the disclaimer that I may have known something about this field at one point when I was in Vienna as Legal Adviser of the International Atomic Energy Agency (IAEA). Even then, I was just a country lawyer that got plucked out of the UN to sit with nuclear physicists and experts in nuclear matters. Since then I have been doing other things.

But I did want to come to this event, in part, to honor my very dear late friend, Professor Gabriel (Gabe) Wilner of this law school. I knew Gabe back in the 1970s when he was working as an international trade lawyer in the UN Legal Office. After he left the UN, Gabe started bringing me to Georgia back in the 1970s. He had me come to Georgia Law in 1975 to talk

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about the United Nation General Assembly's definition of "aggression." As I remember, Dean Rusk asked, "How is that going to work?" I was a young lawyer and had no idea how to answer the question.

Oddly enough, the International Criminal Court recently adopted a definition of aggression and created the crime of aggression. And I found myself asking, "How is that going to work?" It was the same question Dean Rusk and Gabe Wilner asked me here in Georgia back in 1975, and a lot of people continue to ask it today. But anyway, I have very fond memories of coming to Georgia because of Gabe.

I thought I would examine developments in nuclear non-proliferation over the past year and a half. I acknowledge that I am a bit of an outsider at this point. The people seated to my left are the real experts. They are free to correct anything and everything I say. But I hope to at least hit the highlights.

Is there something going on in the world of nuclear non-proliferation that is unusual? I think there is, and I will get to that in a moment.

As an initial matter, I should say that I am not going to go into a detailed discussion of the Nuclear Non-Proliferation Treaty (NPT) because I think it has been thoroughly covered by the other panelists. The only thing I have to add to our discussion of the "Grand Bargain"—the idea that non-nuclear states can gain access to peaceful nuclear energy provided they submit to IAEA safeguards and agree to act in good faith to move toward disarmament¹ —is an idea that it is very much like a contract. If the nuclear weapons states are not making good faith efforts to disarm, then non-nuclear weapons states can make a colorable argument that they are excused from their obligations under the treaty. That is a real danger.

Next, to honor one of Georgia's great U.S. Senators, Sam Nunn, I would like to quote him. He is quoted in a 2010 film called Nuclear Tipping Point:

[I]f you view the goal of getting to zero [nuclear weapons] as the top of the mountain . . . then we can't even see the top of the mountain today. We're heading down. We're not heading up. It's gonna take a long time to see the top of the mountain, but I think we have an obligation to our [future generations] to

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build paths up the mountain, to get other people to go up the mountain with us . . . .²

That is our opening quote. Why are we heading down the wrong side at the moment? Let me just briefly run down the list of the challenges. Iran and the Democratic People's Republic of Korea (North Korea) continue to develop nuclear weapons, related technologies, or both.³ Despite hopes that recent negotiation attempts with North Korea would bring them back into the fold, they did not.⁴ There is a risk that the NPT regime might collapse, especially if North Korea and Iran get away with developing weapons with impunity.⁵

Non-state actors are another problem. Organizations like Al Qaeda have expressed interest in nuclear technologies—dirty bombs or the real thing.⁶

There is a troubling black market in nuclear materials. One example is the A.Q. Khan network out of Pakistan.⁷

The IAEA inspection regime has been criticized, and many parties have called for it to be reformed.⁸

Another challenge is negotiating a treaty to control fissile material. That is the stuff you use to make the bomb. Pakistan is blocking this effort.⁹

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The big gap in the NPT—I should add—is that it does not deal with existing stockpiles.¹⁰

Having listed the challenges, let's discuss some of the efforts to address them. Let's go back to Sam Nunn. He is one of what has been referred to as the "Four Wise Men"¹¹ or the "Gang of Four."¹² This is a bipartisan group consisting of two Democrats and two Republicans. The Democrats are Senator Nunn and William Perry, the former Secretary of Defense under President Clinton.¹³ The Republicans are former Secretaries of State Henry Kissinger and George Shultz.¹⁴

In January 2007, the Four Wise Men wrote a joint letter to the Wall Street Journal. In their letter, they discussed how the deterrence value of nuclear weapons is decreasing.¹⁵ They quoted Ronald Reagan—that well-known "softy" on national defense—and his notion that nuclear weapons are "good for nothing but killing, possibly destructive of life on earth and civilization."¹⁶

The Four Wise Men pleaded for nuclear weapons states to view the eradication of nuclear weapons as a "joint enterprise."¹⁷ They listed eight steps that needed to be taken to begin the process.¹⁸ "We endorse setting the goal of a world free of nuclear weapons and working energetically on the actions required to achieve that goal . . . ."¹⁹

The Four Wise Men renewed that call in 2008 in another Wall Street Journal editorial.²⁰ Then, in 2009, they met with newly-elected President Barack Obama, who proved to be a sympathetic ear.²¹ George Shultz was

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quoted as saying to President Obama that it is a bipartisan issue.²² "Why is it so hard for us to solve a problem that is obvious?"²³ Of course, the lawyers in the room know that just because something is an obvious problem does not mean it is obvious how to solve it. I think his point was, "This is an obvious problem. Let's address it."

In January 2010, the Four Wise Men wrote another editorial stating that the U.S. has to maintain the safety and security of our nuclear stockpile.²⁴ They were then interviewed in Nuclear Tipping Point.²⁵

Henry Kissinger has been a leader in this area. He is interesting because he is both a noted academic and President Nixon's Secretary of State. He is also a noted realist—a realist par excellence. In February 2009, he had a piece that noted the Four Wise Men's position is a restatement of every American president's position since Eisenhower.²⁶ Yet, he noted that they were just announcing the initial steps toward a world without nuclear weapons: How do you ascertain the size of nuclear stockpiles throughout the world? How do you eliminate them? How do you verify that they have been eliminated?²⁷ He also stressed this would not be unilateral disarmament by the United States.²⁸ And President Obama has stated that the U.S. will not implement these steps alone.²⁹

In September 2010, Kissinger gave a speech in Vienna.³⁰ He said the collective security system does not appear to be working very well.³¹ He noted that China and Russia were stalling with sanctions against proliferators.³² He said that time was on the side of the proliferators.³³ He went on to add that the time may soon come for the international community

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to take "decisive measures."³⁴ He fears proliferating countries may use nuclear weapons in a conventional manner, and he asked whether nuclear powers, such as the united States, would be able to intervene even if they were not directly involved.³⁵ For example, if Pakistan launches a nuclear attack on India, will the five major nuclear powers just sit back and let that happen?

Now let's look more specifically at what happened in 2009 and 2010.

In the UN, the Security Council has been active. You will recall that the Security Council has a role to play once the IAEA determines a country is in violation of the NPT.³⁶ The Security Council did increase sanctions against North Korea in June 2009³⁷ and against Iran in June 2010.³⁸

I should now mention an often forgotten part of the UN Charter, which was ratified in June 1945,³⁹ just a few months before America dropped atomic bombs on Japan. At that time, a provision was adopted allowing the Security Council to develop a plan for members to develop an arms control plan,⁴⁰ in addition to the powers it later gained related to the IAEA. The Security Council, with the passage of these sanctions against North Korea and Iran, has reaffirmed that it has the power to do this. Additionally, the Eu and the U.S. have implemented sanctions on Iran that are tougher than those called for by the Security Council.⁴¹

The next panel, I know, will discuss whether these sanctions will be effective. And then you have to determine what you mean by "effective." Is it effective if nobody is cheating? Or is it effective if it changes the behavior of the policy leaders in the proliferating countries? If not, then what is going on? But all of that is for the next panel.

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President Obama and the U.S. decided to go to the Security Council in September 2009 on the issue of non-proliferation.⁴² This was his first entry into the UN world. The President actually sat as the head of the Security Council—the first time a U.S. President presided over the body.⁴³ The U.S. then negotiated a resolution stating that the proliferation of nuclear materials represented "a threat to international peace and security."⁴⁴ As those of you who have taken International Law know, those are the buzzwords—the trigger phrase—that allow the Security Council to adopt binding resolutions.⁴⁵

At this meeting, the UN Security Council also called for "a Treaty banning the production...