Enforcing the Nuclear Nonproliferation Regime: The Legality of Preventive Measures

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ABSTRACT

Efforts to limit the proliferation of nuclear weapons and nuclear-weapons-related technology have increasingly involved economic, technological, and military forms of coercion implemented in an environment of low-level conflict. Coercive counterproliferation measures have included a range of actions, including targeted economic sanctions, industrial sabotage, cyber attacks, targeted killings, and military strikes. While the nonproliferation obligations of states are well-established under relevant treaties, state practice, and the international monitoring system of the International Atomic Energy Agency (IAEA), norms relating to the enforcement of those obligations are not clearly defined in legal instruments. This Article reviews the legality of prevention and enforcement measures through the institutional framework of the global nonproliferation regime, considering the tensions between that framework and a range of cross-cutting disciplines of international law, including the law of nonforcible intervention, state responsibility, and the law of force. The Article advocates the continuing development of consistent technical criteria to determine proliferation risk at the institutional level of the IAEA monitoring system, and the prioritization of that system in the enforcement of nonproliferation obligations. It addresses the key legal issues associated with the full range of counterproliferation prevention and enforcement options, providing a comprehensive framework to facilitate the refinement of legal norms guiding global counterproliferation efforts.

TABLE OF CONTENTS

   I. INTRODUCTION
  II. DEFINING THE PROBLEM: WHAT IS PROLIFERATION
      AND WHEN IS IT ILLEGAL?
      A. Proliferation as an Internationally Wrongful
         Act
      B. Moving Toward a Definition of Proliferation
 III. THE IAEA SAFEGUARDS SYSTEM: A FRAMEWORK
      FOR PEACEFUL USES
      A. Comprehensive Safeguards Agreements
      B. The Model Additional Protocol
      C. New Facility Notification and Code 3.1
      D. Weaponization Activities Not Involving
         Nuclear Material
      E. Assessing the Credibility of Information
         Sources
      F. The Analytical Framework
      G. Assessing Capabilities: Technology and
         Intention
  IV. PROLIFERATION QUANDARIES: PROMINENT
      CASE STUDIES
      A. North Korea: Moving Beyond the Threshold
      B. Iran: The Problem of Ambiguity
      C. Reconciling Treatment of Non-NPT States
         with a Prevention Regime
   V. ECONOMIC COUNTERPROLIFERATION MEASURES
      A. Extraterritoriality: Jurisdictional
         Impediments to Effective Prevention
      B. Crippling Sanctions: Approaching a
         Pre-Force Maximum
  VI. INTERFERENCE MEASURES: INTERDICTION AND
      CYBER ATTACKS
      A. Interdiction: State Action and International
         Law
         1. Cuban Missile Redux
         2. Roving Police Authority
         3. Interdiction and Force
      B. The Advent of Low-Level Conflict: Cyber
         Attacks and Sabotage
         1. Cyber Measures and the Use of Force
         2. Cyber Measures, Intervention Law,
         and State Responsibility
 VII. PREVENTIVE FORCE AND NONPROLIFERATION LAW
VIII. CONCLUSION: ALL ROADS LEAD BACK TO EFFECTIVE
MONITORING IN A COOPERATIVE POLITICAL
ENVIRONMENT

I. INTRODUCTION

Since the earliest days of atomic energy, the international community has sought to find ways to prevent the use of that technology in nuclear weapons development. (1) In 1963, President John F. Kennedy predicted that fifteen to twenty-five states would have nuclear weapons by the 1970s. (2) Since that time, five nations legally qualified to join the Nuclear Non-Proliferation Treaty (3) (NPT) as nuclear-weapon states, another three states that never joined the Treaty are generally understood to possess nuclear weapons, and another state, the Democratic Republic of North Korea (DPRK), developed nuclear weapons after withdrawing from the Treaty. …