Table Of Contentnuclear weapons counterproliferation
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Nuclear Weapons Counterproliferation:
A New Grand Bargain
Jack I. Garvey
1
1
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Library of Congress Cataloging-in-Publication Data
Garvey, Jack I.
Nuclear weapons counterproliferation : a new grand bargain / Jack I. Garvey.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-984127-1 ((hardback) : alk. paper)
1. Nuclear nonproliferation. I. Title .
KZ5675.G38 2013
327.1'747—dc23
2012033752
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
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For Monica
Th is book was inspired by the vision of a better world and instruction in the skills needed to
achieve that world provided by my mentors, the late Professor Abram Chayes and Judge Hubert
L. Will. In writing this book, my aspiration has been to contribute to that more secure world.
Th at contribution was made possible also by the encouragement, support, and critical fortitude
of Dean Jeff rey Brand and Professor Jesse Markham, Erin Garvey, and Rafael Aguirre-Sacasa.
My thanks to the reference librarians of the University of San Francisco School of Law, espe-
cially Lee Ryan whose extraordinary talent and intellectual generosity were a consistent source
of support. Th anks to my research assistants, Amol Mehra, Emily Corrigan, Alison Britton-
Armes, Arash Yasrebi, and Brandon Clouse. Special thanks to my research assistant, Eric Sofge
who, after serving as platoon leader and company executive offi cer in Iraq, served the cause of a
safer world refl ected in this book with similar dedication.
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Contents
1. Introduction 1
A. Th e Need for a New Grand Bargain 1
B. Th e Old Grand Bargain Breakdown 10
i. Th e Goal of Nuclear Disarmament 10
ii. Th e Flawed Connection of Nuclear Disarmament and Counterproliferation 22
C. Legitimacy; Th e Challenge of Asymmetric Possession of Nuclear Weapons 29
2. Futility of Nuclear Weapons Risk Management in a Consensual Regime 3 4
A. Nuclear Terrorism 34
B. State-to-State Nuclear Weapons Risk 40
C. Risk Reduction by Consent 42
3. Security Council Mandate of Universal Standards 48
A. Global Legislation by the United Nations Security Council 48
i. Th e Security Council as Legislator 48
ii. Th e Legal Debate 53
iii. Th e Legal Debate Enlightened by Political Realism 57
a. I nconsistency with Treaty Rights and Obligations and Customary
International Law 59
b. “Th reat to the Peace” 61
c. Proportionality 63
d. Invasion of Domestic Jurisdiction 65
iv. Counterproliferation as the Best Prospect for Security Council Legislation 6 8
B. Counterproliferation Beyond Current Legislation 71
C. Universal Standards 77
i. Nuclear Security as an Independent International Interest 77
ii. No Classifi cation of States 8 7
a. Proliferation to ‘Democratic’ States 87
b. Proliferation to ‘Non-Democratic’ States 94
iii. International Administration of Uniform Standards 100
vii
viii Contents
4. Elements of an Eff ective Counterproliferation Architecture 111
A. Expanding Deterrence; An International Nuclear Forensics Data Bank 111
i. Contemporary Nuclear Forensics Capability 111
ii. Expanded Deterrence 120
iii. Th e Legal and Institutional Empowerment of Nuclear Forensics 126
B. Internationalization of National Counterproliferation Intelligence 140
i. Th e Incongruity of National Intelligence Resources and Transnational Nuclear
Risk 140
ii. Th e Imperative for International Institutionalization of Intelligence 145
iii. Feasibility 152
C. Export-Import Controls 162
i. Th e Club that Cannot Counterproliferate 162
ii. Institutionalization of Export-Import Controls under Security Council
Mandate 170
D. Internationalization of the Nuclear Fuel Cycle 175
E. Interdiction of Nuclear Weapons Related Transport; Th e Proliferation Security
Initiative 185
i. C ounterproliferation Designed to be Least Legal; An Activity, Not an
Organization 185
ii. I nterface of the Proliferation Security Initiative and International Law 190
a. Coastal State Jurisdiction 190
b. High Seas Jurisdiction 191
c. Self-Defense 193
iii. I nstitutionalization of the PSI under Security Council Mandate; Legitimacy
and Eff ectiveness 195
5. Compliance 205
6. Political Will 218
7. Conclusion 226
index 231
B etween the potency
And the existence
Falls the shadow. . . .
Th is is the way the world ends
Th is is the way the world ends
Th is is the way the world ends
Not with a bang but a whimper.
t.s. eliot, Th e Hollow Men
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INTRODUCTION
A. The Need for a New Grand Bargain
Th e foundation for counterproliferation of nuclear weapons is failing. Fortunately,
however, the whimper has come before the bang. We are well warned. T.S. Eliot had
it not quite right in reference to nuclear weapons. 1 It is today widely understood and
acknowledged that nuclear weapons risk is the greatest security risk facing the United
States and the world. 2 President Obama called the nuclear threat the “threat that rises
above all others in urgency” and warns that if we fail to fi x the nonproliferation regime,
1 Th ough Eliot’s poem, Th e Hollow Men , fi rst appeared in 1925, Eliot himself later concluded that the
H-bomb had come to be the allusion in common understanding. S ee “T.S. Eliot at Seventy,” an inter-
view with Eliot in Saturday Review , Henry Hewes, Sept. 13, 1958, in Michael Grant , T.S. Eliot: The
Critical Heritage (Routledge & Kegan Paul 1982).
2 Today, the pre-eminent concern appears to be terrorist access. Th e Offi cial Assessment of United States
Security, the National Security Strategy of the United States of America , (National Security Strategy),
declares that preventing the detonation of a nuclear weapon in the United States is the highest
national security priority. George W. Bush, National Security Strategy of the United States of America ,
Sept. 2002, http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/. At a Bush-Putin news con-
ference two months after the 9/11 terrorist attacks, Bush declared: “Our highest priority is to keep
terrorists from acquiring weapons of mass destruction.” See Th e Acronym Institute, US Wrestles with
Huge WMD-Terrorism Agenda, I ssue No. 65 Disarmament Diplomacy (July-Aug. 2002), http://www.
acronym.org.uk/dd/dd65/65nr09.htm. S ee Michael V. Hynes, John E. Peters, & Joel Kvitky, D enying
Armageddon: Preventing Terrorist Use of Nuclear Weapons , The ANNALS of the American Academy of
Political and Social Science (2006), http://ann.sagepub.com/content/607/1/150.full.pdf. See also
Pierre Goldschmidt, Th e Increasing Risk of Nuclear Proliferation: Addressing the Challenge, IAEA, Nov. 26,
2003, http://www.iaea.org/newscenter/statements/ddgs/2003/goldschmidt26112003.html. President
Obama has agreed with this assessment, stating, “Th e single biggest threat to U.S. security, short-term,
medium-term, and long-term, is the possibility of a terrorist organization obtaining a nuclear weapon.,”
see CNN Wire Staff , Obama Hosts Leaders at Nuclear Summit, C NN, Apr. 13, 2010, www.cnn.com/2010/
POLITICS/04/12/nuclear.security.summit/index.html, as has former Secretary of Defense Robert
Gates, “ . . . if you ask every senior leader what keeps them aware at night, it’s terrorists getting weap-
ons of mass destruction, especially nuclear.” See Jim Garamone, T rip Was Gesture of Respect to Airmen,
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