How Can the Nuclear Nonproliferation Regime Be Repaired? What If It Can't?

Proceedings of the Annual Meeting-American Society of International Law, Annual 2007 | Go to article overview

How Can the Nuclear Nonproliferation Regime Be Repaired? What If It Can't?


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. …

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