How can the nuclear nonproliferation regime be repaired? What if it can't?

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 9:00 a.m., Saturday, March 31, by its moderator and panelist, Orde F. Kittrie of Sandra Day O'Connor College of Law, Arizona State University, who introduced the other panelists: Jack Beard of UCLA Law School; Joseph Cirincione of the Center for American Progress; and Patricia McNerney of the U.S. Department of State. *

ENFORCEMENT AND THE FUTURE OF THE NUCLEAR NONPROLIFERATION REGIME ([dagger])

By Orde F. Kittrie ([double dagger])

The UN Secretary-General's High-level Panel on Threats, Challenges and Change recently warned of "the erosion and possible collapse of the whole [nuclear nonproliferation] Treaty regime," explaining: "We are approaching a point at which the erosion of the non-proliferation regime could become irreversible and result in a cascade of proliferation." (1) The causes of this erosion are several, and there are many steps that must be taken if the regime is to be saved, including the following:

* More must be done to reduce and secure stockpiles of weapons-usable fissile materials (plutonium and highly enriched uranium), including especially in the former Soviet Union, and to end the production of these materials and their use in civilian reactors.

* The exceptionally weak monitoring and verification authorities of the International Atomic Energy Agency (IAEA) must be enhanced.

* The United States and Russia, which currently account for over 95 percent of the world's nuclear weapons, must refrain from any further upgrades to their nuclear arsenals and move more quickly to reduce them. To do so will improve the United States's and Russia's moral leverage over proliferators and contribute to devaluing nuclear weapons as measures of security, great-power status, and technological prowess.

My fellow panelists will say more about these. I am going to focus my attention in these remarks on what I consider to be the foremost cause of the nuclear nonproliferation regime's erosion: the recent failures to impose strong sanctions in response to noncompliance by North Korea and Iran with the regime's core prohibition on additional states acquiring nuclear weapons.

As Elihu Root, the Nobel Peace Prize laureate, Secretary of State, and first President of the American Society of International Law, stated in the ASIL Proceedings almost one hundred years ago, "International laws violated with impunity must soon cease to exist." (2)

Yet the international community has failed to sanction seriously either North Korea or Iran for their violations of the nuclear nonproliferation regime. Emboldened by their own impunity, North Korea and Iran have pressed ahead with their nuclear weapons programs, and other proliferators are sure to follow.

Let us take a look at the record. During the eleven years between 1995 and July 2006--a period in which North Korea was in non-compliance with its NPT safeguards obligations, cheated on its Agreed Framework nonproliferation obligations, withdrew from the NPT, and announced it had manufactured nuclear weapons--the Security Council issued not a single resolution referring to any of these North Korean actions.

A strong international response might well have stopped North Korea from proceeding to develop its nuclear arsenal. China supplies 70 to 90 percent of North Korea's oil. If the Security Council had imposed an oil embargo on North Korea at any time over the years it has been flouting the NPT regime, the Kim government would have been put to a choice between compliance and collapse. The Security Council did impose oil embargos on Haiti in response to its 1991 military coup, the Federal Republic of Yugoslavia during the Bosnian crisis, and Sierra Leone in response to its May 1997 military coup. Why not North Korea?

Well, China has long been concerned that a North Korean regime collapse would flood China with an expensive flow of refugees. So China for those eleven years blocked any Security Council sanctions.

Emboldened by its years of impunity, North Korea in October 2006 announced a nuclear weapons test. The Security Council responded with Resolution 1718, its first-ever sanctions aimed at North Korea's nuclear program. Resolution 1718 banned the export to North Korea of 1) items that could contribute to North Korea's WMD programs; 2) heavy military equipment; and 3) luxury goods.

Japan had urged the Security Council to respond with comprehensive sanctions. But Russia and China, wielding their Security Council vetoes, insisted the resolution be watered down. As a result, the sanctions are too weak to convince the North Koreans that their nuclear program comes at too high a price and must be relinquished. Nor were the sanctions on North Korea sufficiently strong to deter other proliferators. Indeed, Iran reportedly found their weakness encouraging.

Just last month, North Korea agreed with the United States and others to shut down its main nuclear facility in exchange for incentives including 50,000 tons of heavy fuel oil. (3) This agreement may help cap the size of North Korea's nuclear arsenal. But the agreement is non-binding, freezes only North Korea's plutonium facilities (which were at the end of their useful lives anyway) (4) and not also its uranium program, provides little to no assurance that North Korea will agree to effective verification of its compliance with the agreed freeze, does not include a North Korean commitment not to detonate or sell nuclear weapons, risks being seen by other potential proliferators as rewarding proliferation, and leaves to subsequent negotiations in the indefinite future any North Korean relinquishment of the nuclear weapons and material it already possesses. The February 2007 agreement thus leaves nuclear nonproliferation in a far worse state than if the Security Council simply had, before North Korea built its nuclear arsenal, used comprehensive sanctions to make it clear to North Korea that its nuclear weapons program was coming at too high a price and had to be relinquished.

What about Iran?

The international community has responded to two decades of Iranian noncompliance as weakly as it did to North Korea's. In August 2002 the IAEA discovered an eighteen-year pattern of noncompliance by Iran with its obligations to report all its nuclear activities. Over those eighteen years, Iran had built major nuclear facilities without telling the IAEA, and without the IAEA detecting them. In June 2003 the IAEA Director General formally reported Iran's non-compliance to the IAEA's Board of Governors. Yet the Board of Governors failed to report Iran's non-compliance to the Security Council until February 2006, two and a half years later. This two-and-a-half year delay in reporting Iran clearly violated the IAEA's own governing statute, which gives the agency no choice but to promptly report non-compliance to the Security Council and General Assembly.

While the international community negotiated with Iran during those two and a half years, Iran made what former IAEA Deputy Director General Pierre Goldschmidt termed "stunning advances in mastering all technological aspects of uranium conversion and enrichment without incurring any negative repercussion." (5) Iranian officials have crowed about how the negotiations between it and the West have bought Iran time to move forward with its nuclear program. (6)

On December 23, 2006, however, the Security Council in Resolution 1737 finally sanctioned Iran for its nuclear nonproliferation violations. It is important to understand that Iran's heavy dependence on oil exports and other foreign trade leaves Iran highly vulnerable to economic sanctions. The Iranian government depends on oil export revenues for about half of its budget, and some 90 percent of Iran's population receives its income from the state. Remarkably for a country that is investing so much in its nuclear programs, Iran has never developed sufficient capacity to refine the petroleum it pumps out of its own soil, and therefore depends on other countries to refine 40 percent of the gasoline it needs for internal consumption. Many Iranians have strongly criticized the Iranian government for endangering its economy and international relationships over the nuclear issue; serious sanctions could greatly strengthen the hand of these opposition figures.

But what kind of sanctions did Resolution 1737 impose? These sanctions included: 1) restrictions on the export to Iran of certain nuclear and ballistic missile technology; and 2) a freeze of overseas assets associated with Iran's nuclear programs. That's basically it. This left Resolution 1737 too weak to coerce Iran into compliance, contain Iran's ability to advance its nuclear weapons program, or deter other states from following Iran's lead.

Why were these sanctions so weak?

The Resolution 1737 sanctions were weak because Russia, with support from China, refused to let the resolution go forward until it was heavily watered down. Indeed, the weakness of the sanctions imposed by Resolution 1737 stands in stark contrast to major Russian and Chinese transactions with Iran that were unaffected by the sanctions and thus represent leverage lost. For example, Russia, at the very time of the sanctions vote, was in the process of delivering to Iran 29 Tor-M1 anti-aircraft missile systems purchased by Iran for $1.4 billion dollars. The anti-aircraft systems are, by the way, being stationed around Iran's nuclear sites. The Bushehr nuclear reactor which Russia is building in Iran and was exempted from the sanctions is an $800 million project. In addition, during the week prior to the passage of Resolution 1737, China's national oil corporation signed a $16 billion agreement to develop Iranian gas fields.

With such weak sanctions and business as usual for the most important Russian and Chinese deals, it is no surprise that Iran has shown no signs of backing down from its nuclear program. Unfortunately, Resolution 1747 of March 24, 2007--a week ago today--does not...

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