THE ROLE OF LEGITIMACY IN STRENGTHENING THE NUCLEAR NONPROLIFERATION REGIME

Abstract

The nuclear nonproliferation regime and its essential foundation, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), are currently under grave stress. The challenges that have plagued the regime since its inception–universal adherence and the pace of disarmament–persist. But new threats raise questions about the effectiveness of the treaty in preventing the spread of nuclear weapons. These include: clandestine pursuit of nuclear weapons by some NPT parties without the knowledge of the international community and the International Atomic Energy Agency in violation of their obligations; the role of non-state actors in proliferation; and renewed interest in the full nuclear fuel cycle, technology necessary to create fissile material for weapons. This article considers recent prominent proposals to address these three threats and assesses them according to their ability to gain legitimacy, a crucial element in strengthening a regime's overall effectiveness.

Keywords:

• Nuclear nonproliferation
• NPT
• Legitimacy
• Disarmament
• PSI
• Export controls
• IAEA

I would like to thank the Center for Nonproliferation Studies in Washington, DC for providing a rich intellectual environment for developing this article. I would also like to thank Lawrence Scheinman, Leonard Spector, Elizabeth Murphy Weithman, Roopa Rangaswamy, Brian Rathbun, and the anonymous reviewers for their insightful and helpful comments. Any errors or omissions are of course mine alone.

Notes

1. John R. Bolton, “The NPT: A Crisis of Compliance,” Statement to the Third Session of the Preparatory Committee for the 2005 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, New York City, April 27, 2004, <www.state.gov/t/us/rm/31848.htm>.

2. The safeguards regime was greatly strengthened following the 1991 Gulf War, with the adoption of the Model Additional Protocol. With the unveiling of long-standing Iranian and Libyan covert nuclear programs, however, new questions have been raised.

3. For a background on the network, see David Albright and Corey Hinderstein, “Unraveling the A.Q. Khan and Future Proliferation Networks,” Washington Quarterly 28 (Spring 2005), pp. 111–128; and Esther Pan, “Nonproliferation: The Pakistan Network,” Council on Foreign Relations website, Feb. 12, 2004, <www.cfr.org/background/nonpro.php>.

4. Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53 (Spring 1999), pp. 379–408.

5. For different perspectives on compliance, see Beth Simmons, “Compliance with International Agreements,” Annual Review of Political Science (1998), pp. 75–93; Abram Chayes and Antonia Handler Chayes, “On Compliance,” International Organization 47 (Spring 1993), pp. 175–205. Chayes and Chayes emphasize that noncompliance can be due to very different reasons. While some noncompliance may be due to a state's active decision to derogate, other instances of noncompliance could be due to administrative failures of a weak state. Chayes and Chayes argue that the latter is more common.

6. Hurd, “Legitimacy and Authority in International Politics”; Max Weber, Economy and Society, vol. 1 [1925] (Berkeley: University of California, 1978).

7. Hurd makes an important point that in order for the concept of self-interest to be potentially falsifiable, its boundaries need to be clearly drawn. Self-interest involves self-restraint rather than external enforcement. However, it must also be distinguished from merely “interested” behavior. It is “egoistic,” in that the rules or relations with others do not themselves generate any loyalty on behalf of the self-interested actor. In each and every situation, the actor assesses its expected payoff and is ready to abandon any rule should an alternative provide greater benefits. Hurd, “Legitimacy and Authority”, pp. 386–387.

8. See Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995), for a good explanation of why agreements in which many parties cheat are unsustainable regardless of sanctions.

9. Mark C. Suchman, “Managing Legitimacy: Strategic and Institutional Approaches,” Academy of Management Review 20 (1995), p. 574.

10. Ernst Haas labels this process of internalization “learning.” See Ernst Haas, When Knowledge is Power: Three Models of Change in International Organizations (Berkeley: University of California Press, 1991).

11. John G. Ruggie, “Multilateralism: The Anatomy of an Institution,” International Organization 46 (Summer 1992), p. 571.

12. For an exhaustive account of different notions of justice and fairness, see Cecilia Albin, Justice and Fairness in International Negotiation (Cambridge, UK: Cambridge University Press, 2001), ch. 2.

13. The United Nations, as the League of Nations before it, was based on this norm, which was further reinforced through the decolonization process of the 1950s and 1960s. See Robert H. Jackson and Carl G. Rosberg, “Why Africa's Weak States Persist: The Empirical and Juridical in Statehood,” World Politics 35 (Oct. 1982), pp. 1–24.

14. Albin, Justice and Fairness, pp. 45–46, and ch. 4, pp. 100–140.

15. Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford: Oxford University Press, 1990), ch. 10.

16. Ian Hurd, “Legitimacy and Power in International Relations” (unpublished manuscript), ch. 4.

17. Different measures of effectiveness lead to vastly different conclusions on the historical effectiveness of the nonproliferation regime. Critics of the regime tend to overlook its success in persuading states other than the few “rogue” states not to pursue nuclear weapons, and rather judge the regime solely in terms of its effectiveness in preventing North Korea and Iran from pursuing nuclear weapons. This difference leads to very different conceptions of how to “fix” the regime. For a good analysis of the consequences of these different measures, see Phillip C. Saunders, “New Approaches to Nonproliferation: Supplementing or Supplanting the Regime,” Nonproliferation Review 8 (Fall–Winter 2001), pp. 123–136, <http://cns.miis.edu/pubs/npr/vol08/83/83saund.pdf>.

18. Franck, The Power of Legitimacy Among Nations.

19. While Waltz is the most outspoken, arguing that the proliferation of nuclear weapons to many states would increase stability in international relations, many view nuclear weapons as making the bilateral relationship between the United States and the Soviet Union during the Cold War more stable. Kenneth Waltz, The Spread of Nuclear Weapons: More May be Better, Adelphi Paper #171 (London: International Institute for Strategic Studies, 1981); John J. Weltman, “Nuclear Revolution and World Order,” World Politics 32 (Spring 1980), pp. 169–193. See national statements to the 2005 NPT Review Conference for a comprehensive overview of parties’ positions on nuclear weapons, <www.un.org/events/npt2005/statements02may.html>.

20. Nuclear technology has a wide variety of applications beyond energy, including increasing agricultural yields, treating cancer, and managing water resources, among many others. See the IAEA website for more peaceful applications of nuclear science and technology, <www.iaea.org>.

21. Lewis L. Strauss, Chairman, U.S. Atomic Energy Commission, “Remarks Prepared for Delivery at the Founder's Day Dinner, National Association of Science Writers,” September 16, 1954.

22. Lawrence Scheinman, The International Atomic Energy Agency and World Nuclear Order (Washington, DC: Resources for the Future, 1987), pp. 49–51. For the original proposal, see “Joint Declaration by the Heads of Government of the United States, the United Kingdom, and Canada, Nov. 15, 1945,” in U.S. Dept. of State, Historical Office, Bureau of Public Affairs, Documents on Disarmament 1945–1957, Pub. No. 7008, 2 vols. (Washington, DC: U.S. Government Printing Office, 1960) vol. I, pp. 1–2, as cited in Scheinman, International Atomic Energy Agency.

23. Baruch was originally appointed by President Harry Truman to present what became known as the Acheson-Lilienthal report, after Undersecretary of State Dean Acheson and Atomic Energy Commission chairman David Lilienthal. Instead, Baruch “who had a famously monumental ego, decided to make significant changes and promote the plan as his own. In particular, Baruch scuttled the notion of international ownership of the means of production of nuclear materials because it was not in keeping with the American free enterprise system.” See Leonard Weiss, “Atoms for Peace,” Bulletin of the Atomic Scientists (Nov./Dec. 2003), pp. 31–41, 44, <www.thebulletin.org/article.php?art_ofn=nd03weiss>.

24. Scheinman, International Atomic Energy Agency, pp. 52–55.

25. See the IAEA Web Site <www.iaea.org/About/statute_text.html> for the full statute.

26. Scheinman, International Atomic Energy Agency, pp. 123–124.

27. See <http://disarmament2.un.org/wmd/npt/npttext.html> for the text of the NPT.

28. The Zangger Committee <www.zanggercommittee.org/Zangger/default.htm> was established in the early 1970s to define the materials and equipment that required controls. The Nuclear Suppliers Group (originally the London Group, see below), founded in 1975, also formed to ensure that materials and equipment would not be misused for prohibited purposes.

29. While the United States and the United Kingdom provide a list of all civilian facilities from which the IAEA may choose several to safeguard, Russia, France, and China name only a select few civilian facilities for safeguards.

30. NPT, Article IV.

31. Tannenwald writes about a norm against the use of nuclear weapons, rather than the acquisition. Nina Tannenwald, Nuclear Taboo: The United States and the Non-use of Nuclear Weapons Since 1945 (Cambridge, UK: Cambridge University Press, 2005).

32. See Joseph S. Nye, “Maintaining a Non-Proliferation Regime,” International Organization 35 (1981), pp. 15–38. Some, however, argue that the decision to pursue nuclear weapons is a national decision that is unrelated to the nonproliferation regime. For different perspectives on why states pursue nuclear weapons, see Mitchell Reiss, Bridled Ambition: Why Countries Constrain Their Nuclear Capabilities (Baltimore, MD: John Hopkins University Press, 1995); Scott Sagan, “Why Do States Build Nuclear Weapons? Three Models in Search of a Bomb,” International Security 21 (Winter 1996/97), pp. 54–86; and Jacques Hymans, The Psychology of Nuclear Proliferation: Identities, Emotions, and Foreign Policy (Cambridge, UK: Cambridge University Press, 2006).

33. India, Pakistan, and Israel never joined the NPT and therefore are not bound by its legal obligation not to acquire nuclear weapons or assist others in doing so. All three are all believed to have nuclear weapons, although Israel maintains a purposefully ambiguous position. North Korea is the only NPT party believed to have possibly acquired nuclear weapons. While U.S. intelligence estimates that North Korea could have as many as six to eight nuclear weapons, this cannot be confirmed. See Joseph Cirincione, Jon Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear, Biological and Chemical Threats, 2nd ed. (Washington, DC: Carnegie Endowment for International Peace, 2005), ch. 14, pp. 279–294, for a more detailed analysis of the North Korean program.

34. South Africa, Kazakhstan, Ukraine, and Belarus all gave up nuclear weapons, while Libya, Argentina, and Brazil, among others, gave up weapons programs. Many others including Japan, West Germany, Sweden, Italy, South Korea, and Switzerland gave up nuclear weapons ambitions. See Cirincione, et al., Deadly Arsenals, Part V, pp. 315–418, for a detailed factual account of these success stories. See Francis J. Gavin, “Blasts for the Past: Proliferation Lessons from the 1960s,” International Security 29 (Winter 2004), pp. 100–135 for a full account of the countries considering nuclear weapons and the possible proliferation waves the Johnson administration faced before negotiating the NPT.

35. The IAEA provides the predominant enforcement cost through its safeguards budget, which in 2004 was a little over $100 million, a very small amount relative to the amounts countries invest in their military budgets. For the 2004 IAEA budget, see <www.iaea.org/About/budget.html>. Other costs would include the cost of maintaining export controls.

36. North Korea announced its withdrawal from the NPT on Jan. 10, 2003. See Jean du Preez and William Potter, “North Korea's Withdrawal from the NPT: A Reality Check,” Research Story of the Week, Center for Nonproliferation Studies Web Site, April 8, 2003, <http://cns.miis.edu/pubs/week/030409.htm>.

37. See IAEA Board of Governors Resolution on Safeguards in North Korea, adopted Feb. 12, 2003, <www.iaea.org/NewsCenter/MediaAdvisory/2003/med-advise_048.shtml>.

38. See IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran and related Board Resolutions,” adopted on Nov. 29, 2004, GOV/2004/90, and the earlier resolutions: GOV/2004/79, adopted on Sept. 18, 2004; GOV/2004/49, June 18, 2004; GOV/2004/21, March 13, 2004; GOV/2003/81, Nov. 26, 2003; and GOV/2003/69, Sept. 12, 2003, <www.iaea.org/NewsCenter/Focus/IaeaIran/index.shtml>.

39. For the IAEA Board's response, see IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran and related Board Resolutions,” GOV/2005/64, adopted on Aug. 11, 2005, <www.iaea.org/Publications/Documents/Board/2005/gov2005-64.pdf>.

40. United Nations Security Council, S/PRST/2006/15 (March 29, 2006).

41. See IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran: Report by the Director General,” GOV/2006/27, April 28, 2006, <www.iaea.org/Publications/Documents/Board/2006/gov2006-27.pdf>.

42. Dafna Linzer, “Iran Rejects Offer for Nuclear Talks”, Washington Post, Aug. 22, 2003, p. A11; Dafna Linzer, “Iran Pushes for Talks Without Conditions,” Washington Post, Aug. 23, 2006, p. A1.

43. Chaim Braun and Christopher F. Chyba, “Proliferation Rings: New Challenges to the Nuclear Nonproliferation Regime,” International Security 29 (Fall 2004), pp. 5–49.

44. Other proposals persist to strengthen the legitimacy of the nonproliferation regime by requiring the nuclear weapon states to move seriously to pursue nuclear disarmament. Such a move would undoubtedly increase the legitimacy of the NPT and the larger regime by reducing the substantive discrimination between nuclear haves and have nots. It could also potentially increase the willingness of some to accept new discriminations. However, until the nuclear weapon states are ready to consider such a proposal, it remains theoretical. This article will focus on proposals currently under active consideration to confront the new threats of proliferation.

45. See International Atomic Energy Agency, Multilateral Approaches to the Nuclear Fuel Cycle: Expert Group Report to the Director General of the IAEA (Vienna: International Atomic Energy Agency, 2005), pp. 56–60, for an analysis of the different techniques for enriching uranium.

46. Although India was and is not a member of the NPT, its actions would have been permitted under NPT Article V. This article is now effectively defunct following agreement on the Comprehensive Test Ban Treaty. For an analysis of the India case and Western, particularly U.S., response, see Scheinman, International Atomic Energy Agency, pp. 174–178.

47. The group included Belgium, Canada, Czechoslovakia, the Federal Republic of Germany, France, the German Democratic Republic, Italy, Japan, the Netherlands, Poland, Sweden, Switzerland, the Union of Soviet Socialist Republics, the United Kingdom, and the United States. For a history of the Nuclear Suppliers Group, see Tadeusz Stulak, “The Nuclear Suppliers Group,” Nonproliferation Review 1 (Fall 1993), pp. 2–10; and Scheinman International Atomic Energy Agency, pp. 190–192. For a review of the internal dynamics of the NSG, see M.J. Wilmshurst, “The Development of Current Non-Proliferation Policies,” in John Simpson and Anthony G. McGrew, eds., The International Nuclear Non-Proliferation System: Challenges and Choices (New York: St. Martin's Press, 1984), pp. 28–38.

48. For the original guidelines agreed to by all 15 members in 1977 and transmitted to the IAEA in 1978, see <www.iaea.org/Publications/Documents/Infcircs/Others/infcirc254.shtml>.

49. U.S. Arms Control and Disarmament, Documents on Disarmament (Washington, DC: U.S. ACDA, 1969), p. 504, as cited by Scheinman, International Atomic Energy Agency, pp. 28–29.

50. U.S. Arms Control and Disarmament, Documents on Disarmament (Washington, DC: U.S. ACDA, 1969), pp. 609–610, as quoted in Scheinman, International Atomic Energy Agency, p. 182.

51. See, for example, the “Working Paper presented by the Members of the Group of Non-aligned Movement States parties to the Treaty on the Non-Proliferation of Nuclear Weapons,” NPT/Conf.2005/WP8, submitted to the 2005 NPT Review Conference, <http://daccessdds.un.org/doc/UNDOC/GEN/N05/323/10/PDF/N0532310.pdf?OpenElement>.

52. Stulak, “The Nuclear Suppliers Group,” pp. 5–6. These charges are also frequently made during NPT Review Conferences and its Preparatory Committee meeting. For records of recent NPT Review Conferences, see <http://disarmament.un.org:8080/wmd/npt/index.html>.

53. The NSG now comprises 45 countries. For a full list of the NSG members, see the NSG website, <www.nsg-online.org/member.htm>. For the updated guidelines, see <www.nsg-online.org/guide.htm>.

54. This list of material and equipment forms the Zangger Committee's “trigger list” and has been continually updated by the committee as needed. See Zangger Committee website, <www.zanggercommittee.org/Zangger/default.htm> for more information.

55. For the full text of the President's speech, see White House website, <www.whitehouse.gov/news/releases/2004/02/20040211-4.html>.

56. For an overview of various suppliers’ plans, see International Atomic Energy Agency, Multilateral Approaches to the Nuclear Fuel Cycle, pp. 62–66.

57. Braun and Chyba, “Proliferation Rings,” and Saunders, “new Approaches to Nonproliferation.” These authors recognize this change in supply mechanisms.

58. Mohamed ElBaradei, “Towards a Safer World,” The Economist, Oct. 18, 2003. ElBaradei also made two other proposals to use proliferation-resistant technology to limit the use of weapons-usable material, especially in research reactors and to consider multinational approaches to the management and disposal of spent fuel and radioactive waste. The former proposal has been adopted by the Bush administration in its Global Threat Reduction Initiative (GTRI) program, whereby research reactors are converted to use low-enriched uranium rather than highly enriched uranium, and unused fuel is removed. For a further elaboration of the Department of Energy's GTRI program, see <www.nnsa.doe.gov/na-20/na21_index.shtml>.

59. The results of the expert group analysis are contained in International Atomic Energy Agency, Multilateral Approaches to the Nuclear Fuel Cycle.

60. These include the question of whether it would be an actual bank or a virtual bank, addressing the different types of fuel used by reactors around the world, the financing of the bank, the pricing mechanism, the location, the location of the decision to stop supply on nonproliferation grounds, and the arbitration process for appealing decisions to stop supply, among many others. I am grateful to Lawrence Scheinman of the Center for Nonproliferation Studies, Monterey, CA, for detailing the many technical issues that would have to be overcome to create an international fuel bank.

61. For a comprehensive analysis of various historical multinational proposals, see Lawrence Scheinman, “Multinational Alternatives and Nuclear Nonproliferation,” International Organization 35 (Winter 1981), pp. 77–102. For a brief review of the work of these bodies, see International Atomic Energy Agency, Multilateral Approaches to the Nuclear Fuel Cycle, pp. 146–184.

62. Some of these participants have since withdrawn from the partnership and given up their share of the enriched fuel.

63. See International Atomic Energy Agency, Multilateral Approaches to the Nuclear Fuel Cycle, pp. 61–68 for an analysis of the strengths and weaknesses of various historical multilateral arrangements, including EURODIF.

64. See “United Nations Security Council Resolution 1540,” S/RES/1540, April 28, 2004, and “Statement by the President of the Security Council,” S/PRST/2005/16, April 25, 2005.

65. Charter of the United Nations, Chapter VII, Article 39, United Nations website, <www.un.org/aboutun/charter/>.

66. Some fear that invoking Chapter VII authorities implies a willingness to use force against states that violate the newly established obligations by a small group of powerful states; the resolution does not include any explicit reference to military action. Without the Chapter VII authority, the Security Council would simply not have the ability to create these obligations.

67. “International Convention for the Suppression of Acts of Nuclear Terrorism,” A/59/766, April 13, 2004, <www.un.int/usa/a-59-766.pdf>.

68. See White House, Office of the Press Secretary, Fact Sheet, Sept. 4, 2003, “Proliferation Security Initiative: Statement of Interdiction Principles, <www.state.gov/t/np/rls/fs/23764.htm>.

69. See Jofi Joseph, “The Proliferation Security Initiative: Can Interdiction Stop Proliferation?,” Arms Control Today (June 2004), <www.armscontrol.org/act/2004_06/Joseph.asp>. As Joseph notes, some skeptics argued “that Yemen's importance to the U.S. buildup of forces in preparation for the Iraq war, not international law, was the trump card in the U.S. decision to release the missiles.”

70. This is the focus in Thomas D. Lehrman, “Rethinking Interdiction: The Future of the Proliferation Security Initiative,” Nonproliferation Review 11 (Summer 2004), pp. 1–45.

71. See bilateral agreements with Liberia, Panama, Croatia, and the Marshall Islands for examples of these ship-boarding agreements. These can be found on the State Department Web Site, <www.state.gov/t/np/c12386.htm>. These agreements draw heavily from the experience of fighting drug trafficking and “shiprider agreements” that provide a mechanism for law enforcement officials of either party to receive preauthorization to board and search flag vessels of the other state for the purpose of curbing illicit drug traffic.

72. “Proliferation Security Initiative: Statement of Interdiction Principles,” Sept. 4, 2003.

73. See Lehrman, “Rethinking Interdiction,” for a more in-depth argument of potential violations of the UNCLOS.

74. See U.S. Dept. of State, “Proliferation Security Initiative Frequently Asked Questions,” State Dept. Web Site, May 26, 2005, <www.state.gov/t/np/rls/fs/46839.htm>.

75. See U.S. Dept. of State, “Proliferation Security Initiative Frequently Asked Questions,” State Dept. Web Site, May 26, 2005, <www.state.gov/t/np/rls/fs/46839.htm>.

76. Joseph, “The Proliferation Security Initiative.”

77. See Maggie Farley, “Nuclear Talks End in Discord,” Los Angeles Times, May 28, 2005, p. A1; “Nuclear Holes to Be Filled,” Christian Science Monitor, May 31, 2005, p. 8; Stephen Fidler, “Testing Times: How the Grand Bargain of Nuclear Containment is Breaking Down,” Financial Times, May 23, 2005, p. 15; David E. Sanger, “Month of Talks Fails to Bolster Nuclear Treaty,” New York Times, May 28, 2005, p. A1.

78. For a brief review of the proposed amendment, see “Proliferation Security Initiative: Chairman's Statement at the Fifth Meeting,” March 5, 2004, State Dept. website, <www.state.gov/t/np/rls/other/30960.htm>.

79. Joseph, “The Proliferation Security Initiative.”

80. See White House, “Joint Statement between President George W. Bush and Prime Minister Manmohan Singh,” July 18, 2005, <www.whitehouse.gov/news/releases/2005/07/20050718-6.html>.

81. See White House, “U.S.-India Joint Statement,” March 2, 2006, <www.whitehouse.gov/news/releases/2006/03/20060302-5.html>, and U.S. Dept. of State, Fact Sheet, “United States and India: Strategic Partnership,” <www.whitehouse.gov/news/releases/2006/03/20060302-13.html>. For a good analysis of the issues, see “Nonproliferation Issues Raised by U.S.-India Nuclear Deal,” Research Story of the Week, March 2, 2006, Center for Nonproliferation Studies website, <http://cns.miis.edu/pubs/week/060302.htm>.

82. For an alternative perspective, see Joseph Cirincione, “Oh Canada!,” March 13, 2006, Carnegie Endowment for International Peace website, <www.carnegieendowment.org/npp/publications/index.cfm?fa=view&id=18116>.