David Jonas provides “A Nuclear Nonproliferation Primer”
One of the most troubling concerns arising out of the Ukraine crisis is the potential impact on the nuclear nonproliferation regime. Why? At the end of the Cold War, the Arms Control Association (ACA) says, “Ukraine held the third largest nuclear arsenal in the world, including an estimated 1,900 strategic warheads, 176 intercontinental ballistic missiles (ICBMs), and 44 strategic bombers.” However, today Ukraine has no nuclear weapons. The ACA explains how that came to be:
To solidify security commitments to Ukraine, the United States, Russia, and the United Kingdom signed the Budapest Memorandum on Security Assurances on December 5, 1994. A political agreement in accordance with the principles of the Helsinki Accords, the memorandum included security assurances against the threat or use of force against Ukraine’s territory or political independence. The countries promised to respect the sovereignty and existing borders of Ukraine.
As a result, ACA advises that “Ukraine agreed to transfer its nuclear warheads to Russia and accepted U.S. assistance in dismantling missiles, bombers, and nuclear infrastructure.”
Obviously, Russia has violated the Memorandum, so why hasn’t the U.S. acted? As Aaron Burke pointed out in the Washington Post recently:
The agreement is not an official treaty. It is neither legally binding nor does it carry an enforcement mechanism. And while it provides security assurances, they do not include specific promises with regard to a potential invasion.
In 2014 following Russia’s annexation of Crimea, Ukrainian officials expressed second thoughts. In 2014, NPR reported:
“We gave up nuclear weapons because of this agreement,” Pavlo Rizanenko, a member of the Ukrainian parliament, told USA Today. “Now there’s a strong sentiment in Ukraine that we made a big mistake.”
Nuclear weapons may make the world nervous, but foreign troops rarely pay unannounced visits to nuclear states.
“In the future, no matter how the situation is resolved in Crimea, we need a much stronger Ukraine,” Rizanenko added. “If you have nuclear weapons, people don’t invade you.”
Nearly eight years later the issue takes on new relevance. On February 21st NPR spoke with Harvard’s Mariana Budjeryn who says that today there “certainly is a good measure of regret” in Ukraine, but also believes “some of it is poorly informed.” She observes that it “would have cost Ukraine quite a bit, both economically and in terms of international political repercussions, to hold on to these arms.” Nevertheless, she concludes:
But in public sphere these more simple narratives take hold. The narrative in Ukraine, publicly is: We had the world’s third-largest nuclear arsenal, we gave it up for this signed piece of paper, and look what happened.
And it really doesn’t look good for the international non-proliferation regime. Because if you have a country that disarms and then becomes a target of such a threat and a victim of such a threat at the hands of a nuclear-armed country, it just sends a really wrong signal to other countries that might want to pursue nuclear weapons.
In an earlier post I made this observation about nations with the potential to acquire nuclear weapons: as the Ukraine is left largely to its own devices to defend itself against Russian aggression, what does Taiwan think as it faces a growing threat from China? What does Saudi Arabia think as Iran’s nuclear potential grows?
Clearly, the ongoing crisis in Ukraine requires a sophisticated discussion of nonproliferation, but where to begin? Shouldn’t we start with an understanding of the basics of the existing nuclear nonproliferation regime? Of course.
Fortunately, we have a real expert in guest contributor Dave Jonas. Take a look at his impressive bio below, and you’ll realize why he is the perfect person to give us a primer on the nonproliferation architecture.
A NUCLEAR NONPROLIFERATION PRIMER
David S. Jonas
Ever since the United States first (and only) use of nuclear weapons in anger in 1945, the world has been concerned with who has access to this technology. Nuclear nonproliferation and the regime that implements it is analogous to a sieve with the holes in the sieve representing the ways that nuclear weapons/technology can proliferate and the nonproliferation efforts representing how those holes are plugged.
The Nuclear Nonproliferation Regime and the NPT
The nuclear nonproliferation regime represents the ways in which various means of proliferation may be stopped or impeded. Curiously, there are no commonly accepted definitions of these terms, so the definitions provided are my own. Nonproliferation is the non-kinetic means employed to stop nuclear proliferation short of counterproliferation. Counterproliferation involves the muscular/physical or kinetic means of stopping proliferation.
The Stuxnet cyber attacks against Iran’s enrichment facilities in 2010, allegedly conducted jointly by the United States and Israel, sits in a middle ground between nonproliferation and counterproliferation, but seems closer to counterproliferation since it had a physical effect.
The Israeli attacks on Iraq’s Osirak reactor in 1981 and a similar attack on Syria’s Al Kibar reactor in 2007 are examples of counterproliferation. The United States also attacked two Iraqi nuclear research reactors in 1991 during the first Gulf War. Nonproliferation encompasses international law/agreements, diplomacy, negotiations, organizations, legislation, regulation, programs, norms and practices. Together, these methods seek to prevent the spread of nuclear weapons and plug the holes in the sieve.
The Essential NPT
Treaties form the legal backbone and basis of the nonproliferation regime. The cornerstone is the Treaty on the Nonproliferation of Nuclear Weapons (NPT). With 191 states parties, the NPT is the most widely subscribed arms control treaty in history. The NPT distinguishes the obligations of states with nuclear weapons prior to the treaty’s opening for signature in 1968 (Nuclear Weapon States or NWS) and states without nuclear weapons (Non-Nuclear Weapon States or NNWS).
A Discriminatory Grand Bargain?
Due to this distinction of two classes of member states, some view the treaty as discriminatory. Of course, no one forced sovereign states to accede to the treaty, so presumably they saw benefits in it for their states. The “Grand Bargain” of the NPT is that the NWS will work toward nuclear disarmament while sharing with the NNWS the benefits of the peaceful uses of the atom and all parties will work towards the common goal of nonproliferation.
Though the NPT espouses several goals, one of the most important is the obligation for NWS not to transfer control of nuclear weapons directly or indirectly to anyone, nor to assist, encourage, or induce any NNWS from manufacturing or acquiring nuclear explosive devices.
Likewise, NNWS are prohibited from receiving the transfer of any nuclear weapons directly or indirectly and are prohibited from seeking or receiving assistance in the manufacture of nuclear weapons. Critically, this not only limits NNWS from receiving the transfer or assistance from NWS, but from any state with nuclear weapons or weapon technology. This would include India, Pakistan, Israel, or North Korea—the only states not in the NPT. (North Korea is the only state to have acceded and then withdrawn).
Other International Agreements
Other treaties, such as the 1963 Limited Test Ban Treaty and 1996 Comprehensive Nuclear Test Ban Treaty prohibit the testing of nuclear explosive devices. Nuclear Weapons Free Zones (NWFZ) are treaties where regional states agree that nuclear weapons will not be allowed in their territory, airspace, or territorial waters. NWFZs have been established in South America, the Caribbean, Africa, Central Asia and the South Pacific.
Sometimes, treaties are seemingly redundant to the goals and objectives of other agreements but may renew and reinforce longstanding commitments and the resolve of the international community (a term I don’t like since it implies gleeful unanimity of viewpoints, which is the furthest thing from the truth, but let’s play along anyway). For example, the relatively new Treaty on the Prohibition of Nuclear Weapons, which opened for signature in 2017, requires states “never under any circumstances to develop, test, produce, manufacture, otherwise acquire or stockpile nuclear weapons.”
That may seem duplicative with the CTBT – – for example, how can a state test a nuclear weapon if it cannot build one? But they are different prohibitions. What is important to note here is that the more legally binding commitments a state accedes to reflecting that it will not build/test/possess nuclear weapons, the less likely that state is to violate such commitments. States do not want to be seen as randomly violating international law or will quickly become pariah states. Even North Korea withdrew from the NPT prior to testing a nuclear weapon.
Organizations play an important role in the nuclear nonproliferation regime. Some of the most well-known organizations are the United Nations (UN) and the International Atomic Energy Agency (IAEA). However, there are other vitally important but lesser-known organizations: The Comprehensive Nuclear Test Ban Treaty Organization (CTBTO) runs the International Monitoring System (IMS) and can reliably detect a nuclear test nearly anywhere in the world. The Conference on Disarmament (CD) is where arms control and nonproliferation agreements are negotiated.
This organization has accomplished virtually nothing since 1998 when it began trying to negotiate the next major nuclear nonproliferation treaty – – the Fissile Material Cutoff Treaty. (For anyone desiring a sinecure, I recommend a position at the CD). The Nuclear Suppliers Group (NSG) is a non-legally binding voluntary organization of states that have mastered the nuclear fuel cycle and conduct nuclear business and exports. The NSG considers any request for “dual-use” materials that could be used in civilian/commercial applications but could also be used in nuclear weapons. By considering all such requests, it becomes pretty clear if a certain state or business is seeking to proliferate.
IAEA diverted to nuclear weapons. Verification extends to fissionable material production, processing, or use both within the territory of the country and where it is carried out under its control.
Article III of the NPT ensures that all member states will be subject to a safeguards regime conducted by the IAEA. Every NNWS is required to conclude a legally binding agreement with the IAEA whereby IAEA inspectors verify the peaceful nature of a state’s nuclear program and ensure that no materials are being diverted to a weapons program.
Many programs of the United States have been designed to limit proliferation. The Defense, State, and Energy (primarily run by the semi-autonomous National Nuclear Security Administration (NNSA)) Departments are the main players in the interagency arena. The Department of Defense ran the highly successful Nunn-Lugar Cooperative Threat Reduction Program which helped the former Soviet Union secure proliferation sensitive nuclear materials. NNSA has run a host of programs securing sealed sources of radiation, downblending highly enriched uranium from nuclear weapons to low enriched uranium to burn in US reactors, employing former Soviet nuclear weapons scientists to avoid them selling their skills to the highest bidder, mostly likely in rogue states, and much more.
Norms and Practices
International norms and practices, though not always written or spoken, are also very important to the nonproliferation regime. Statements or practices which tend to discourage the use or value of nuclear weapons are beneficial for the nonproliferation regime. For example, no country since the United States in 1945 has ever used nuclear weapons against another country. That is helpful since it makes a break of nearly 80 years since the last use highly significant. Israel, while widely believed to have nuclear weapons, has never publicly declared that they possess them. That is helpful to the regime.
Other statements and practices which encourage the use or value of nuclear weapons are detrimental to the nonproliferation regime. For example, when North Korea, a country with the economic output of Vermont, commands the world’s attention by testing and parading nuclear weapon delivery systems or threatening to use nuclear weapons, this may increase the perceived value of nuclear weapons and is therefore unhelpful to the regime.
Some actions may have both positive and negative consequences for the nonproliferation regime. President Donald Trump withdrew from the Intermediate-Range Nuclear Forces Treaty (INF) after the U.S. determined that Russia had been in violation for several years. Some may view the US withdrawal as a negative—abandoning an arms control treaty which had been in place since 1987. Others may view it as a positive — reinforcing the importance of abiding by treaty obligations.
The nuclear nonproliferation regime refers to a broad array of international practices, many of which overlap and depend on one another. The nonproliferation regime faces stress and pressure because states like Iran are seeking nuclear weapons and if it attains that capability a host of other states may do the same. Be that as it may, President Kennedy predicted a world where 30-40 states could have nuclear weapons if nothing was done. The NPT has held that number to nine as the relative solidarity of international leaders to prevent nuclear proliferation has thus far been successful.
About the author
David S. Jonas is a Partner at FH+H law firm in Tysons, Virginia. After retiring as a Marine Corps officer where he concluded his service as nuclear nonproliferation planner for the Joint Chiefs of Staff, he served as general counsel of two federal agencies including the National Nuclear Security Administration. He teaches Nuclear Nonproliferation Law & Policy at Georgetown and George Washington university law schools and has published extensively in this area.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
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