NUCLEAR PROLIFERATION

Abstract

As the potential for the involvement of corporations in the manufacture of nuclear weapons has increased, particularly through dual-use technology, global regulation has failed to keep pace. Where regulation of private corporations does exist, in the form of treaties, UN resolutions, or more informal arrangements, the obligations fall only on states. This state of affairs is a result of international law's traditional deference to state sovereignty; yet, it has led to significant shortcomings in the global regulatory regime, where states are unwilling or unable to meet their obligations. While radical departures from the traditional model of international law might remove the regulatory gaps caused by noncompliant states, such changes are unrealistic in the current political climate. More realistic changes must be focused on, offering greater recognition of the role of private corporations in nuclear proliferation and increasing state compliance with existing regulation.

Keywords:

• Nuclear weapons
• proliferation
• dual-use technology
• corporations
• state sovereignty
• regulation

Acknowledgements

The author wishes to thank the judges of the McElvany Nonproliferation Challenge, Professor Mattias Kumm, and members of his Weapons of Mass Destruction course at the New York University School of Law for their helpful comments on earlier drafts of this article.

Notes

1. See, for example, President John F. Kennedy, News Conference 52, State Department Auditorium, Washington, DC, March 21, 1963, <www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/Press+Conferences/003POFO5Pressconference52_03211963.htm>.

2. See, e.g., Joel R. Paul, “Holding Multinational Corporations Responsible under International Law,” Hastings International & Comparative Law Review 24 (2000–2001), p. 285.

3. Galya I. Balatsky, Stacey Lee Eaton, and William R. Severe, “Illicit Trafficking of Nuclear and Radiological Materials,” in James E. Doyle, ed., Nuclear Safeguards, Security, and Nonproliferation: Achieving Security with Technology and Policy (Burlington, MA: Butterworth-Heinemann, 2008), p. 420. On use in a “dirty bomb,” see Rob Edwards, “Risk of Radioactive ‘Dirty Bomb’ Growing,” New Scientist Online, June 2, 2004, <www.newscientist.com/article/dn5061-risk-of-radioactive-dirty-bomb-growing.html>.

4. For example, the management, day-to-day operation, and maintenance of the United Kingdom's nuclear weapon stockpile is contracted to a private company, AWE Management Limited, whose shareholders include a U.S. company, Lockheed Martin. Lockheed Martin produces and sells submarine-launched nuclear missiles to both the U.K. and U.S. governments, <www.lockheedmartin.com/products/TridentIID5/index.html>.

5. Matthew C. Fuhrman, “Industry and Nonproliferation: Don't Neglect the First Line of Defence,” Disarmament Diplomacy 82 (Spring 2006).

6. See, generally, Gordon Corera, Shopping for Bombs: Nuclear Proliferation, Global Insecurity, and the Rise and Fall of the A.Q. Khan Network (New York: Oxford University Press, 2006), p. 114; Ian Anthony, Christer Ahlstöm, and Vitaly Fedchenko, Reforming Nuclear Export Controls (New York: Oxford University Press, 2007), p. 108.

7. Corera, Shopping for Bombs, p. 23.

8. Corera, Shopping for Bombs, p. 119.

9. Corera, Shopping for Bombs, p. 114.

10. Corera, Shopping for Bombs, p. 67.

11. Treaty on the Non-Proliferation of Nuclear Weapons, March 5, 1970, Article III, para. 2.

12. See later discussion of the Zangger Committee.

13. NPT, Article I and Article II.

14. NPT, Article IX.

15. Duncan B. Hollis, “Why State Consent Still Matters: Non State Actors, Treaties and the Changing Sources of International Law,” Berkeley Journal International Law 23 (2005), pp. 137, 146, 155–62.

16. See Paul, Multinational Corporations, p. 290.

17. On the NPT's successes, see John Simpson, “The Future of the NPT,” in Nathan E. Busch and Daniel H. Joyner, eds., Combating Weapons of Mass Destruction: The Future of International Non-Proliferation Policy (Athens, GA: University of Georgia Press, 2009), p. 45.

18. NPT, Article III, para. 1.

19. IAEA, “Medium Term Strategy: 2006–2011,” p. 2, <www.iaea.org/About/mts2006_2011.pdf>.

20. IAEA, “Medium Term Strategy: 2006–2011,”, p. 3.

21. The granting of the agency's most invasive powers is premised by “where the Agency is requested by the parties concerned.” Statute of the International Atomic Energy Agency, July 29, 1957, Article XII, para. A.

22. IAEA, “The Structure and Content of Agreements Between the Agency and States Required in Connection With the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/153 (corrected), para. 112.

23. But see U.S. Congress, Office of Technology Assessment, Nuclear Safeguards and the International Atomic Energy Agency, OTA-ISS-615 (Washington, DC: U.S. Government Printing Office, June 1995), pp. 93–94.

24. IAEA, “The Structure and Content of Agreements Between the Agency and States Required in Connection With the Treaty on the Non-Proliferation of Nuclear Weapons,” paras. 4–5.

25. UN Security Council Resolution 1540, April 28, 2004.

26. See Sumon Dantiki, “Power Through Process: An Administrative Law Framework for United Nations Legislative Resolutions,” Georgetown Journal of International Law 40 (Winter 2009), pp. 655–56.

27. Lars Olberg, “Implementing Resolution 1540: What the National Reports Indicate,” Disarmament Diplomacy 82 (Spring 2006), <www.acronym.org.uk/dd/dd82/82lo.htm>.

28. Resolution 1540 Committee, “Report of the Committee Established Pursuant to Resolution 1540,” S/2006/257, April 25, 2006, p. 14, fn. 3.

29. Resolution 1540 Committee, “Report of the Committee Established Pursuant to Resolution 1540,” S/2006/257, April 25, 2006, pp. 20–21; Resolution 1540 Committee, “Report of the Committee Established Pursuant to Resolution 1540,” S/2008/493, July 8, 2008, pp. 13–14.

30. The committee's fifth program of work included “Outreach, including awareness raising about the obligations and requirements of SCR 1540.” See “Programme of Work of the Security Council Committee Established Pursuant to Resolution 1540 (2004),” <www.un.org/sc/1540/docs/pow/programmeofwork01Oct2006(E).pdf>.

31. Similar work relating to conventional weapons is undertaken by the Wassenaar Arrangement, a group of forty states.

32. A nuclear fuel cycle comprises the steps involved in generating atomic energy: mining, processing, “burning,” reprocessing, and, finally, treatment of remaining waste. Anthony, Ahlstöm, and Fedchenko, Nuclear Export Controls, pp. 3, 9.

33. “Australian Practice in International Law: Use of Force and War,” Patricia Hewitson, ed., Australian Yearbook of International Law 14 (1992), pp. 658, 677.

34. IAEA, “NSG Guidelines,” INFCIRC/254 (Rev. 7).

35. Anthony, Ahlstöm, and Fedchenko, Nuclear Export Controls, p. 4.

36. Zangger Committee, “Our Mission,” <www.zanggercommittee.org/Zangger/Misssion/default.htm>.

37. Sharon Squassoni, “Proliferation Security Initiative,” Congressional Research Service Report for Congress, RS21881, June 7, 2005, p. 3.

38. Sharon Squassoni, “Proliferation Security Initiative,” Congressional Research Service Report for Congress, RS21881, June 7, 2005, p. 4.

39. Sharon Squassoni, “Proliferation Security Initiative,” Congressional Research Service Report for Congress, RS21881, June 7, 2005, p. 3.

40. “Interdiction Principles for the Proliferation Security Initiative,” Bureau of International Security and Nonproliferation, State Department, September 4, 2003.

41. UN Security Council Resolution 1540, April 28, 2004, operative para. 7.

42. Resolution 1540 Committee, “Report of the Committee Established Pursuant to Resolution 1540,” S/2006/257, p. 13.

43. Resolution 1540 Committee, “Report of the Committee Established Pursuant to Resolution 1540,” S/2006/257, Annex XIV.B.

44. Resolution 1540 Committee, “Report of the Committee Established Pursuant to Resolution 1540,” S/2006/257, p. 14.

45. Peter Crail, “Implementing UN Security Council Resolution 1540: A Risk-Based Approach,” Nonproliferation Review 13 (July 2006), p. 355. See also Monika Heupel, “Surmounting the Obstacles to Implementing UN Security Council Resolution 1540,” Nonproliferation Review 15 (March 2008), pp. 95–102; Johan Bergenäs, “The Slippery Slope of Rational Inaction: UN Security Council Resolution 1540 and the Tragedy of the Commons,” Nonproliferation Review 15 (March 2008), pp. 373–80.

46. Crail, “Implementing UN Security Council Resolution 1540,” p. 378.

47. Of the top forty-five states by GDP, as published in the IMF's 2008 World Economic Outlook Database, the following are not NSG members: India, Mexico, Indonesia, China/Taiwan, Saudi Arabia, Iran, Thailand, Venezuela, Colombia, United Arab Emirates, Malaysia, Nigeria, Israel, Chile, and Singapore.

48. Corera, Shopping for Bombs, pp. 113, 119.

49. “Proliferation Security Initiative Participants,” Bureau of International Security and Nonproliferation, State Department, May 27, 2009.

50. “Proliferation Security Initiative,” Australian Department of Foreign Affairs and Trade, undated, <www.dfat.gov.au/globalissues/psi/index.html>; “Proliferation Security Initiative,” Bureau of International Security and Nonproliferation, State Department, undated, <www.state.gov/t/isn/c10390.htm>.

51. Squassoni, “Proliferation Security Initiative,” pp. 2–3. Emphasis as published in the Squassoni.

52. “The Proliferation Security Initiative (PSI),” Bureau of International Security and Nonproliferation, State Department, factsheet, May 26, 2008, <merln.ndu.edu/archivepdf/wmd/State/105217.pdf>.

53. Corera, Shopping for Bombs, pp. 113–14.

54. Consider the current focus on the Iranian and North Korean nuclear programs.

55. Crail, “Implementing UN Security Council Resolution 1540,” pp. 383–84.

56. UN Security Council Resolution 1540, April 28, 2004, operative para. 7.

57. See “Kadi v. Council of the European Union,” Common Market Law Reports 3 (2008), p. 41.

58. Rome Statute of the International Criminal Court, July 1, 2002, Article 5.