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Nuclear Disarmament and Nonproliferation Preventing Nuclear Terror

John Jay College of Criminal Justice, City University of New York
Panel on Loose Nukes and Dirty Bombs
September 30, 2005

International Legal Regimes Relevant to Preventing
Terrorist Access to Nuclear Materials and Explosives

John Burroughs, Executive Director
Lawyers’ Committee on Nuclear Policy, New York

I first will outline the international legal regimes relevant to preventing terrorist access to nuclear materials and explosives: the Nuclear Nonproliferation Treaty, agreements on nuclear terrorism, Security Council resolutions. We will see that since the September 11 attacks there have been important initiatives. Then I will talk about where we need to go from here.

The Nuclear Nonproliferation Treaty and the IAEA

One hundred and eighty-eight states are members of the Nuclear Nonproliferation Treaty (NPT). Only three countries are outside the regime, all nuclear-armed, India, Pakistan, and Israel. In addition, North Korea's status is in limbo; it has announced its withdrawal, and may have a few nuclear weapons. The NPT strikes a bargain between non-nuclear weapon states, which are prohibited from acquiring nuclear arms and are guaranteed access to peaceful nuclear technology, and nuclear weapons states, which accept a disarmament obligation.

I’ll return at the end of this talk to the disarmament obligation, but now want to focus on the role of the International Atomic Energy Agency (IAEA). The IAEA monitors operation of nuclear reactors and other facilities by non-nuclear weapon states with the aim of detecting and preventing diversion of fissile materials (plutonium and highly enriched uranium) for use in weapons.

This monitoring also serves to prevent diversion to terrorists. So far as is publicly known, there have been only a handful of states that have sought to produce nuclear materials for weapons in violation of the NPT: Iraq, Libya, and North Korea. But there is controversy about whether IAEA accounting is adequate to ensure non-diversion of small amounts in civilian systems, which can accumulate over the years.

The IAEA has also undertaken specific measures to combat terrorism. After 9/11, the IAEA added initiatives and expanded existing programs to better guard against terrorism using nuclear explosives or radiological bombs. The IAEA issues recommendations to help states improve the physical protection of their nuclear materials and facilities. It also monitors and works to combat illicit trafficking in nuclear material. It maintains a database on illicit trafficking and offers training to member states’ customs and police officials. Since 1993, the IAEA database has recorded approximately 630 confirmed incidents of trafficking in nuclear or other radioactive material. Training is also offered to strengthen states’ systems for accountancy and control of nuclear materials. Finally, the IAEA also promotes the development of national legislation and adherence to related international agreements and guidelines.

International Agreements on Nuclear Terrorism

1980 Convention on the Physical Protection of Nuclear Material
There are 12 anti-terrorism treaties, dealing with aircraft hijacking, hostage-taking, bombings, etc. They provide that states are either to prosecute suspects or extradite the suspects to other states for prosecution. Among the 12 is the Convention on the Physical Protection of Nuclear Material, which 115 states have joined. The treaty is relevant to preventing terrorist use of both nuclear explosives and radiological devices. It sets standards for the protection of nuclear material being used for peaceful purposes. It applies mainly to material in international transport. States agree that they will only export or import nuclear material if they are assured of certain physical protections as laid out by the convention. States are required to criminalize acts including the theft and fraudulent acquisition of nuclear material, and to prosecute or extradite alleged offenders. In July of this year, states parties agreed to amend the treaty to apply its provisions to activities within national boundaries as well as in international transport. However, it will take years for the amendment to enter into effect.

International Convention for the Suppression of Acts of Nuclear Terrorism
A recent addition to the set of anti-terrorism treaties addresses terrorist acts using, threatening to use, or aiming to use nuclear weapons or radiological bombs or involving damage to a nuclear reactor or facility. On April 13, 2005, the General Assembly adopted the treaty. It will enter into force when ratified by 22 states. Under its provisions, alleged offenders must be either extradited or prosecuted. It excludes activities of armed forces during an armed conflict, while also providing that it does not address the issue of the legality of the use or threat of use of nuclear weapons by states.

Security Council Resolutions

By far the most innovative legal initiative since 9/11 has been the emergence of the U.N. Security Council as a sort of global legislator with respect to terrorism and nuclear, biological, and chemical (NBC) weapons.

Invoking its authority under the UN Charter to maintain international peace and security, the Security Council adopted resolution 1373 on September 28, 2001, at the behest of the United States. Resolution 1373 requires all states to take a series of actions, including: criminalize the act of providing or collecting funds to be used to carry out terrorist attacks; freeze all funds of individuals or entities with ties to terrorist activities; deny terrorists safe haven and transit across borders; and ensure their prosecution. Unlike the twelve (soon to be 13) terrorism conventions, which are only binding on states that ratify them, resolution 1373, as a decision of the Security Council, binds all states.

In the past the Security Council had many times required all states to take certain actions, for example an arms embargo, with respect to situations involving particular countries. But with resolution 1373, the Security Council broke new ground by mandating actions by all states to address a global problem.

Then, in April 2004, the Security Council adopted resolution 1540, which seeks to prevent "non-state actor" acquisition of, or trafficking in, NBC weapons-related equipment, materials, and delivery systems. The term "non-state actor" refers not only to terrorists, but also to unauthorized state officials and to businesses. The reasons for this scope are illustrated by the Pakistan-based nuclear proliferation network led by nuclear metallurgist A.Q. Khan. The Pakistani government maintains that it did not authorize Khan's activities, and businesses from several countries around the world contributed to the Khan network. In resolution 1540 the Security Council required every state in the world to adopt appropriate measures - national criminal laws, export controls, border controls, law enforcement efforts, physical security and materials accounting techniques - to prevent non-state actor acquisition of and trafficking in NBC weapons and related items.

In some ways the resolution added new obligations for states, for example regarding export controls and border controls. Also, previously there had been no explicit requirement under the NPT and the Biological Weapons Convention that acquisition of and trafficking in nuclear and biological weapons be made criminal by national legislation. In other ways the resolution reinforced existing obligations and also applied them to the relatively few countries not party to the NPT and the biological and chemical weapons conventions.

It seems too early to really assess the effectiveness of the resolution. Updating of export controls laws and regulations, for instance, takes time. As called for by the resolution, most states have submitted reports on measures taken or planned to be taken. The reports indicate that the resolution has spurred states to accomplish tasks already on the international agenda: for example, criminalization of chemical weapons activities, as already required by the Chemical Weapons Convention; and acceptance of the additional protocol to IAEA safeguards agreements, which gives the IAEA the power to inspect undeclared facilities in a country.

Assessment and Where to Go From Here

The set of instruments and institutional activities I have described – IAEA monitoring, the agreement on protecting nuclear material, Security Council resolutions – have very important gaps. Among them:

  • IAEA monitoring does not apply to military nuclear activities of countries possessing nuclear weapons. Of greatest concern now are Russia and Pakistan.
  • IAEA monitoring powers need to be enhanced by the additional protocol, but it is not yet widely accepted.
  • The regime does not bar the possession of HEU for use in civilian reactors; the same goes for plutonium.
  • The regime does not prevent the spread of nuclear fuel cycle technology, to produce plutonium and enriched uranium, now held by only about 12 countries.

Also, and importantly, the mere existence of international rules does not mean that they are being observed. Governments have to have the political will to put them into effect. And Security Council resolutions, in particular, are at risk of non-compliance. There is resentment at exclusion from what is clearly a legislative process ordinarily dealt with in multilateral treaty negotiations, and concern that the UN Charter does not provide for the Security Council to take this role. There is also resentment at the hypocrisy inherent in the nuclear-armed permanent five (Britain, China, France, Russia, United States) laying down rules on NBC weapons for the rest of the world. That resentment is enhanced by the fact that efforts to reform the Security Council to make it more representative are going nowhere for the time being, partly though not entirely due to the resistance of the permanent five.

To deal with gaps, and to generate political will, I believe that the issue of reduction and elimination of existing nuclear arsenals must be met head on, in large part through the revitalization of multilateral agreements. This returns us to the disarmament obligation contained in the Nuclear Nonproliferation Treaty. In Article VI, states parties, including nuclear-armed Britain, China, France, Russia, and the United States, agree to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament… ”

During the Cold War, this obligation was pretty much a dead letter. But since the collapse of the Soviet Union, non-nuclear weapon states and global civil society have insisted that it be brought to life. And indeed, at the 1995 and 2000 NPT Review Conferences, the nuclear weapon states made important commitments – commitments which, if implemented, would result in the eventual achievement of a nuclear-weapon-free world. They include the Comprehensive Nuclear Test Ban Treaty; a treaty banning the production of fissile materials for nuclear weapons; application of the principles of transparency, irreversibility, and verification to reduction and elimination of nuclear arsenals; a diminishing role for nuclear weapons in security policies; and reduction of the operational status of nuclear forces.

However, since 2000, the United States, and to a lesser extent other nuclear powers, have systematically repudiated or violated these commitments. Mostly for that reason, the 2005 NPT Review Conference failed, and the recent UN Millennium + 5 Summit omitted the planned section on disarmament/non-proliferation. Kofi Annan rightly labeled this a “real disgrace.” That also means that there have been no commitments made on key non-proliferation measures, like entrenchment of the IAEA additional protocol and establishment of controls on the spread of nuclear fuel cycle technology.

Why the abandonment of disarmament/arms control commitments? 9-11 led to a focus on the problem of proliferation. And generally the Bush administration is opposed to global regimes regulating U.S. actions, in the nuclear sphere and other areas as well – landmines, global warming, the International Criminal Court, a verification regime on biological weapons, and so on.

How does this relate to effective prevention of nuclear terrorism?

First, some promised but not delivered arms control/disarmament measures would directly help to prevent nuclear terrorism. 1) A verified treaty banning the production of fissile materials for nuclear weapons would lead to international monitoring of facilities in Russia and Pakistan, among others. But, reversing longstanding U.S. policy, the Bush administration says a fissile materials treaty cannot be verified and therefore should not be negotiated on that basis. 2) Verification of reductions of U.S. and Russian arsenals, including through the irreversible dismantlement of warheads, would assist in accounting for and securing Russian and U.S. warheads. But the 2002 Moscow Treaty, at the insistence of the Bush administration, and unlike any previous U.S.-Soviet/Russian agreement, contains no verification provisions.

Second, to get something, you must give something. There must be reciprocity. If the United States wants effective implementation of obligations under the NPT and Security Council resolution 1540 that are essential to preventing nuclear materials from getting into the hands of terrorists, it must also fulfill its side of the nonproliferation/disarmament bargain. There is great potential for cooperation out there in the world. On the part of the developing world in particular, the NPT in fact was partly born out of a spirit of idealism which rightly condemned nuclear weapons. But good faith must be shown to elicit that cooperation.

Final Thoughts

Let me try to put the above points in a more direct way. We are here at a conference concerned with the prevention of nuclear terrorism. But there is an organization that has already used nuclear weapons, has never apologized for doing so, and in its planning documents and its development of capabilities continues to project the possible use of nuclear weapons in a very wide range of circumstances, essentially whenever it would serve its purposes to do so. I am talking of course about the U.S. government. Please try to imagine how much more effective this country would be in preventing the spread and the possible terrorist use of nuclear weapons if in its own security policy the role of nuclear weapons was marginalized rather than given a central place.

I also want to add something on a subject on which I am not a specialist, and that is terrorism. Over the past few years, in the course of working to oppose the Iraq war, in cooperation among others with activists from the Middle East, I have come to understand the deep anger, the rage in some cases, caused by U.S. policies in that region. I honestly believe that if we want to be successful in preventing catastrophic terrorism in coming years and decades, it is crucial to come to understand and to remedy the origins of that anger and rage. That is as important, or more important, than any policy measure identified at this conference, whether it be port security or securing nuclear materials.


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