The proliferation of unconventional weapons is the most serious national security threat the United States faces today. While chemical weapons can kill hundreds of people and biological weapons can potentially kill thousands, nuclear weapons are incomparably dangerous in scale of destruction and strategic impact. For the purpose of this testimony, I will focus on the problem of nuclear proliferation.
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) has served as the backbone of nuclear non-proliferation efforts for almost thirty-five years. Overall, the regime has been remarkably successful but recent developments have illustrated three serious gaps in the treaty:
- states can legally pursue civilian nuclear programs that can later be used to produce nuclear weapons;
- a newly-discovered nuclear black market flaunts the treaty's export provisions; and,
- a treaty designed to block state acquisition now must grapple with non-state terrorists intent on getting nuclear weapons.
President Bush's speech of 11 February was a positive step towards covering these gaps. The measures he announced would, overall, help forge a stronger, more effective and more international non-proliferation policy. Many of the initiatives, if implemented, will increase the ability of the United States and other nations to stop the spread of nuclear weapons. On 25 March, the administration also introduced at the United Nations Security Council a Draft Resolution on Non-Proliferation that, if adopted, would also strengthen international anti-proliferation laws and cooperation. The draft resolution would go a long way towards integrating some of the administration's policy innovations, such as the Proliferation Security Initiative, with established international legal norms and institutions. This, in turn, would greatly facilitate the participation of many other nations in these efforts.
Serious questions remain, however, as to the willingness of the President to back up these proposals with financial and political capital. For example, although the President called for expanding the Nunn-Lugar programs which have proven so effective in securing and eliminating nuclear, chemical and biological weapons in the former Soviet Union, the administration's budget for the coming fiscal year actually cuts funding for Nunn-Lugar programs by ten percent. Similarly, the President called for enhancing the International Atomic Energy Agency's capabilities to detect cheating and respond to treaty violations, but he did not provide any increase in the U.S. contribution to the IAEA.
Overall, non-proliferation efforts remain the stunted pillar in the administrations three-part National Strategy to Combat Weapons of Mass Destruction. Overall, non-proliferation programs receive less than $2 billion from the national budget. The other two pillars, consequence management and counter-proliferation, received tens of times greater funding. Homeland Security programs were budgeted for $41 billion in FY 2004, while counter-proliferation, including national missile defense and the war in Iraq, cost approximately $81 billion.
The Congress can support the President by providing the budgetary resources to implement his proposals, by building political support behind the initiatives (most importantly, behind the new UN Draft Resolution on Non-Proliferation, which has received scant attention so far) and by supplementing the President's plans with new ideas and funding.
My colleagues and I at the Carnegie Endowment for International Peace are working on proposals for a new, effective, nuclear non-proliferation strategy. Here are several suggestions from our research that might help the Committee build on the President's proposals and fashion new congressional initiatives consistent with the President's intentions. I. Stopping "Peaceful" Bomb Programs
Article IV of the Non-Proliferation Treaty permits non-nuclear-weapon states to acquire technology for peaceful purposes that can create both the low-enriched fuels needed for civilian nuclear reactors and the ingredients for nuclear weapons, namely highly-enriched uranium and plutonium. As a condition, the NPT requires that any produced or processed uranium or plutonium for civilian use, regardless of quality, be accounted for and placed under "safeguards," that is, subject to inspection by the IAEA. This system is supposed to serve as an alarm system but cannot and was never intended to physically prevent misuse of material.
By allowing non-nuclear-weapon states to import these nuclear technologies, the NPT (and its predecessor, the "Atoms for Peace Program"), has made it possible for states to use peaceful nuclear programs as a cover for weapons programs. North Korea's and Iran's misuse of these provisions, in particular, threatens to undercut the viability of the nuclear non-proliferation regime and the entire system of international nuclear commerce.
Although the seeds of the conflict are built into the NPT itself, changes to that agreement are not the answer. Amending the NPT would be impractical and inadvisable, but other mechanisms can and should be developed and adopted to fill voids in the NPT. At least two areas of promising efforts exist: intrusive inspections, and internationalizing the supply of nuclear fuel. 1. Universalizing the Additional Protocol
The Additional Protocol to the Safeguards Agreements requires signatories to declare all nuclear-related facilities (included any intention to construct such facilities) and allow any time, anywhere inspections. The protocol has already proven its value in its first real test: inspections in Iran. IAEA inspectors have learned far more about Iran's nuclear program than anyone outside Iran knew before the inspections and have uncovered facilities and capabilities that Iranian officials had not declared and clearly wished to keep hidden. In addition, the continued presence of inspectors on the ground has likely impeded attempts by Iran to move significantly forward with its nuclear program. The case of Iran demonstrates that inspectors can detect and monitor nuclear activities in any country that has signed the Additional Protocol and is complying with its obligations.
This is why both President Bush and IAEA Director-General ElBaradei have suggested the Additional Protocol be mandatory for all states. Only 39 of the 191 United Nations members have signed and ratified this protocol (the United States has not yet ratified). All should be required to do so, establishing these intrusive inspections as the new norm. 2. Controlling the Fuel Cycle and Fuel Supply
Inspections alone, however, do not address the fundamental problem: the acquisition of nuclear facilities allow countries to produce reactor fuel one year and nuclear bombs the next. One solution could be to place enrichment or reprocessing facilities under multilateral or international control. For example, the enrichment company Urenco has capabilities owned jointly by Germany, the Netherlands, and the United Kingdom. Although the company's enrichment facilities are able to produce weapons-grade uranium, actually doing so would require the acquiescence of three countries or the seizure of existing plants by national authorities in one of the three countries. Such highly observable events would not only draw attention but provoke such sharp national and international reactions that they significantly raise the cost to taking such action. This multilateral control does not constitute a guarantee; nonetheless, the deterrent effect of such institutional barriers may be useful if applied to facilities in other continents. Japan's facilities present a potentially attractive candidate for such measures.
Another approach is market-based. Increased attention is now being given to the idea of creating viable commercial alternatives to national fuel-cycle facilities for states willing to abandon domestic enrichment and reprocessing programs. One such option is to go beyond simple commercial contracts and provide a broad international guarantee of access to supplies of fresh-fuel for reactors and spent-fuel management at prices cheaper than any one nation could match.
President Bush proposed a third approach in his February 11 non-proliferation speech: export controls. He called on the 40 nations of the Nuclear Suppliers Group (NSG) to refuse to sell enrichment and reprocessing equipment to any state that does not already possess full-scale, functioning enrichment and reprocessing plants. Members of the NSG, he said, should provide countries who renounce enrichment and reprocessing activities with civilian reactor fuel. While the president's initiative is a positive step forward, his plan is complex, and he has yet to provide details.
Moreover, it will be difficult for the United States to persuade others to go along with new restrictions on nuclear fuel technology that appear to establish a new double standard. In addition to the existing standard where some nations are allowed to have nuclear weapons and some not, the president proposes that some nations be allowed to manufacture the fuel for nuclear reactors and some not. The president would freeze the current situation in place: allowing those with existing full-scale plants to continue to make nuclear fuel, those without such plants would be barred forever from building them. Though designed to thwart Iran, it may also impact Brazil and other nations who will not want to rule out future national options. II. Shutting Down the Nuclear Black Market
Developments in Iran and Libya in the past year have led to the exposure of a sophisticated, international nuclear black market. These countries, North Korea and possibly others have paid millions to an extensive network run from Pakistan for components and expertise for secret nuclear weapon programs. This illicit ring helped these countries bypass many of the difficult, technical obstacles to producing weapons material and developing a weapon design. In doing so, they were able to sidestep the traditional mechanisms of the non-proliferation regime with little detection. With hundreds of agents scattered across five continents, the scope and sophistication of this network surprised most experts. Shutting down the Pakistan network permanently is essential to limiting the access of both countries and terrorists to nuclear equipment, materials and technologies.
The Proliferation Security Initiative (PSI), announced by President Bush in May 2003, could be an important part of the effort to build an international partnership of countries which, using their own laws and resources, could thwart this and other networks as well as state-to-state transfers of dangerous technologies. Under the PSI, countries would halt suspected shipments at sea, in the air and on land.
Interdiction is a positive and necessary non-proliferation tool. It redefines non-proliferation norms and allows the international community to take immediate and decisive action against suspected transfers of unconventional weapons, materials and related technologies. But it is a very limited tool. It cannot stop legal transfers of technology, for example, North Korean Scuds to Yemen. More importantly, there are serious questions about the level of cooperation the United States can expect from other countries due to the ad hoc nature of the activities. The PSI seems to establish a troubling double standard by choosing which countries are subject to interdiction and which countries are not. To-date, according to the State Department, fewer than 20 countries have agreed to participate in the PSI.
To succeed, the PSI must be grounded in international law and integrated into existing international organizations. It should be seen as a supplement to the global non-proliferation regime, not a substitute for it.
Recent efforts to provide broader legal basis for PSI action by amending the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988), or SUA, may be a useful step in that direction. I have attached a two-page Fact Sheet on SUA to my testimony as an aid to the Committee's consideration of this approach.
The UN Security Council Draft Resolution on Non-Proliferation also could help increase support for PSI. The resolution could provide international authorization for seizure of illegal material transfers by making such transfers subject to action under Chapter VII of the United Nations Charter. Chapter VII permits the Security Council to use sanctions or military force to compel states to abide by its demands.
Specifically, the draft resolution says that states, acting under Chapter VII, should establish domestic controls to:
".develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law."
".establish, develop, review and maintain appropriate effective national export and transshipment controls over such items, including appropriate law as regulations to control export, transit, transshipment and re-export."
Without referring explicitly to the PSI, the resolution calls upon all states,
".in accordance with their national legal authorities and legislation and consistent with international laws, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials." III. Blocking Terrorist Acquisition of Nuclear Weapons and Materials
The risk of a nuclear device, or nuclear material falling into the hands of terrorists is a nightmare scenario. While the United States has devoted enormous resources in a war against terrorist organizations and suspected state sponsors, comparatively little has been done to address the supply side of the equation. The most likely sources from which terrorists might acquire a complete warhead or fissile material are in the states of the former Soviet Union. Russia's nuclear complex is vast-dispersed over hundreds of facilities throughout the country-and contains hundreds of tons of plutonium and highly enriched uranium and nearly 10,000 warheads held in reserve. Much of the Russian complex is protected by inadequate or nonexistent security.
The Nunn-Lugar programs to secure and eliminate nuclear weapons and materials in the former Soviet Union have proven to be an extremely effective tool, even at their present, limited level of funding. Expanded globally, they could help ensure that terrorist do not acquire weapons or materials from Russia or other insecure facilities in dozens of countries around the world. While President Bush proposed expanding Nunn-Lugar programs February 11, his recently released FY 2005 Federal Budget cuts these programs in the Department of Defense by ten percent ($409.2 million this year compared to $450.8 last year). Similarly, the budget for the Department of Energy's programs to secure Russian nuclear materials would decline from the current level of $259 million to $238 in the FY 2005 request, or an 8 percent reduction.
The Nunn-Lugar and related programs are cheap compared to other defense programs. The United States now provides just under $1 billion a year to these efforts in the Departments of Defense, Energy and State, but many proliferation experts believe the United States should triple that spending. For the price of three weeks of operations in Iraq, the country could make tremendous progress in removing and securing the weapons and materials terrorists are most likely to seek. IV. Conclusion: Follow the Leader
The United States must set the standard for any effective non-proliferation strategy. For the past 20 years, the US has reduced its dependence on nuclear weapons. With the demise of the Soviet Union, the US had no need to balance or counter a nuclear peer competitor, and could focus on strengthening the norm against nuclear use. This is directly in U.S. national interest as nuclear weapons are the only weapons that can counter the U.S. conventional military superiority.
Today, however, major elements of US nuclear policy are in conflict with the goal of nuclear non-use. Programs to design new nuclear weapons, opposition to the Comprehensive Test Ban Treaty, and a nuclear posture that declares an important role for nuclear weapons against even non-nuclear threats, plans on the maintenance of thousands of nuclear weapons indefinitely and calls for the development of a new generation of nuclear armed missiles, submarines and bombers, all enhance the perceived value of nuclear weapons. If the United States begins to deploy more usable nuclear weapons, would not other countries follow suit? Instead of contemplating new nuclear weapons, the United States should be protecting this overriding interest in non-use. It should maintain a clear policy that the only reasonable use of nuclear weapons is to deter the use of nuclear weapons by others and work to reduce global stockpiles to the absolute minimums.
Finally, any inspection effort, any export control regime and any interdiction effort must be backed by credible consequences in the event of noncompliance. Ultimately, in the event that inspections, sanctions, and other constraints do not succeed in the task of disarming an uncooperative nation, the United Nations or a credible coalition of nations should be prepared to authorize military force as an option of the last resort. The ability of the United States to gather this coalition will depend heavily on the legitimacy of its leadership and international perceptions of the fairness of norms being enforced.
Fact Sheet on the "Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (SUA)"
In November 1985, the Assembly of the International Maritime Organization (IMO) adopted resolution A.584(14), which addressed increasing concerns over the safety and security of ships and their crew and passengers. One month later, the UN General Assembly adopted resolution 40/61, which asked States for their cooperation in tackling terrorism. In particular, the IMO was to propose measures confronting terrorism aboard or against ships.
Â· Highlights of the Convention
The Convention was adopted in Rome in 1988 and entered into force in 1992. It deals with any threats to an unlawful take over of a ship by force or intimidation; any acts that might endanger the safe navigation of a ship; and any attempt to injure or kill a person as a result of the above offenses. State Parties are required to develop punitive measures appropriate to the nature of the crime. Prosecuting procedures are subject to the laws and regulations of the Flag State, the State of which the offender is national, or the State in whose waters the offense took place.
The Convention calls for "the greatest measure of assistance in connection with criminal proceedings" among State Parties, "in conformity with any treaties on mutual assistance that may exist between them." Similarly, States are to cooperate in establishing procedures to prevent offences within their territories, including exchanging information and coordinating administrative tasks, within the limits of their respective national laws.
The Convention does not apply to "a warship; or a ship owned or operated by a State when being used as a naval auxiliary or for customs or police purposes; or a ship which has been withdrawn from navigation or laid up" or government ships used for non-commercial purposes. International Law continues to preside over any matters not addressed by the Convention.
As of January 2004, a total of 102 countries have joined the Convention, 37 since September 11, 2001.
Following the 9/11 attacks, the IMO Assembly adopted resolution A.924(22), which called for improved measures to prevent acts of terrorism. At the latest Assembly's meeting in October, 2003, the Correspondence Working Group led by the U.S. introduced several proposals to amend article 3 of the SUA Convention so as to include an expanded number of offenses.
In particular, the Working Group presented two alternative options to treat offense for transporting WMD and non-proliferation offense that the original Convention did not cover.
Alternative One would have article 3 to include:
- offense for transporting WMD in which transporter must have the terrorist motive at the time of transportation
- offense for transporting WMD where the terrorist motive is with respect to the terrorist act and not the actual transportation non-proliferation offense
- offense for transporting chemical, toxic chemicals or their precursors, munitions and related materials, in situations where the transporter knows that he is transporting prohibited items and that it will be used for or as a weapon/a hostile purpose
- offense for transporting any nuclear weapon or other nuclear explosive device, with the transporter's knowledge
- offense for transporting fissile material, equipment, dual-use equipment, biological agents, weapons or means of delivery
Alternative Two is a variation of Alternative One, but deals with similar offenses.
The most significant objections regarding offenses for transport of WMD include:
- the possibility of including too rigorous clauses that threaten the principle of freedom of navigation and discourage broad support
- the IMO is not the appropriate forum to deal with non-proliferation concerns that are already dealt with by other treaties, i.e. IAEA, OPCW
- as proposed, article 3 lacks reference to the terrorist motive terms such as 'precursors', 'hostile purposes', toxic materials', 'double-use' need to be better defined
- specific provisions to exclude from criminalization legitimate transportation allowed under other treaty regimes should be included
No agreement has yet been reached regarding these issues. The IMO Assembly will be meeting again from April 19 to April 23, 2004 to discus differences among State Parties. On April 13, however, the U.S Shipping Coordinating Committee will hold a preliminary public meeting at the U.S. Coast Guard Headquarters in DC to discuss the latest developments.