Responding to Nuclear Security Challenges in a Fragmented World: Nuclear Material and Commodity Trafficking as International Crimes: Current Status, Gaps in Coverage, and Potential Steps Forward

By Spector, Leonard S. | Proceedings of the Annual Meeting-American Society of International Law, Annual 2011 | Go to article overview

Responding to Nuclear Security Challenges in a Fragmented World: Nuclear Material and Commodity Trafficking as International Crimes: Current Status, Gaps in Coverage, and Potential Steps Forward


Spector, Leonard S., Proceedings of the Annual Meeting-American Society of International Law


This panel was convened at 1:00 p.m., Thursday, March 24, by its moderator, Orde Kittrie of Arizona State University, Sandra Day O'Connor College of Law, who introduced the speakers: Asli U. Bali of UCLA School of Law; Rose Gottemoeller of the U.S. Department of State, Bureau of Arms Control, Verification and Compliance; Ken Handleman of the Office of the Assistant Secretary for Global Strategic Affairs, U.S. Department of Defense; David Huizenga of the U.S. Department of Energy, National Nuclear Security Administration; and Leonard S. Spector of the James Martin Center for Nonproliferation Studies, Monterey Institute of International Studies. **

BACKGROUND

The two facets of nuclear trafficking--trafficking in weapons-usable materials that might enable a nuclear attack by terrorists and trafficking in sensitive nuclear commodities (i.e., equipment and technology) to support the development of nuclear weapons by additional states--remain grave concerns of the international community.

The two dimensions of nuclear trafficking are intimately related, since it is trafficking in nuclear commodities that is enabling Pakistan and North Korea to expand production of weapon-grade nuclear materials and that is giving Iran the ability to produce them. The presence of terrorist organizations in Pakistan, and reportedly of their sympathizers in some parts of Pakistan's military and intelligence services; North Korea's unrestrained nuclear export policies; and Iran's divided governing organizations and extensive support for terrorist groups could each lead to nuclear-weapon materials falling under the control of violent, anti-Western groups or factions.

Over the past twenty-five years, a complex web of international conventions, UN Security Council resolutions, and domestic criminal laws (often adopted to comply with such international mandates) has evolved, and today many aspects of nuclear trafficking are criminal offenses in

the great majority of states. In addition, UN Security Council resolutions sanctioning North Korea and Iran for their nuclear activities now require all states to impose quasi-criminal penalties, namely asset freezes and travel bans, on individuals deemed to be engaged in or providing support for proliferation-sensitive nuclear and related missile activities in either country. (1)

Nonetheless, important challenges persist. Prosecuting nuclear commodity trafficking networks operating in multiple states, for example, has proven to be a daunting task. Similarly, although weapons-usable nuclear material seized in western Europe and the Republic of Georgia is widely understood to have been stolen from Russian facilities, Russian authorities have undertaken few, if any, prosecutions of the individuals responsible for these thefts. Nor has it proven possible for the international community to punish Pakistani scientist A.Q. Khan for his transfers of highly sensitive nuclear equipment and technology to North Korea, Iran, and Libya.

CURRENT STATUS

Conventions, Treaties, and Nuclear Trafficking as an International Crime

Some forms of nuclear material smuggling have already achieved the status of international crimes. (2) I use this term in the sense that the relevant offenses are set out in multilateral treaties, and treaty parties are required to criminalize the offenses in domestic law and cooperate with other parties in prosecuting wrongdoers, for example, by accepting the obligation to extradite or prosecute them at the request of a state with jurisdiction over the alleged offender. (3) The key treaties and conventions are:

* the International Convention for the Suppression of Acts of Nuclear Terrorism, which entered into force in 2007 and now has 76 parties;

* the Convention on the Physical Protection of Nuclear Materials, which entered into force in 1987 and has 145 parties; and

* the 2005 Amendment to the Convention on the Physical Protection of Nuclear Materials, not yet in force, 45 ratifications (100 ratifications needed for entry into force). …

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