Module 4:

Beyond Treaties: Bridging Gaps in the Nuclear Nonproliferation Regime

What are multilateral arrangements and other cooperative activities, and how do they differ from treaties?

  • Multilateral arrangements and other cooperative activities fill gaps in the treaty-based regime, either by prohibiting or requiring activities not prohibited or required by the existing treaties, or by including states outside of the treaty-based regime
  • Typically voluntary agreements – states can choose to participate or cease activity at any time – with the exception of UNSCR 1540, which is legally binding on all UN member states
  • The voluntary nature of these mechanisms makes them more flexible than treaties. Many, for example, do not rely on consensus decision-making
Gap in the  Nuclear Nonproliferation Regime Resulting Multilateral Arrangements and Other Cooperative Activities Objectives of these Multilateral Arrangements and Other Cooperative Activities
Nuclear Non-Proliferation Treaty (NPT) says states cannot transfer nuclear materials or technologies to non-nuclear weapon states except under safeguards, but does not provide specific guidance on what materials and technologies must be controlled. Nuclear suppliers are left to establish their own guidelines, which are likely to be inconsistent Nuclear Suppliers Group; Zangger Committee Convince all key suppliers to participate
Tighten all members’ conditions for export of nuclear materials and technologies and ensure that members abide by the same standards in determining export regulations
NPT does not cover dual-use goods or conventional weapons, which can be relevant to a nuclear weapons program Wassenaar Arrangement Prevent destabilizing accumulations of arms and dual-use goods and technologies through transfers
NPT Article 3.2 does not cover missiles or other potential nuclear weapons delivery vehicles Missile Technology Control Regime; Hague Code of Conduct against Ballistic Missile Proliferation Tighten supplier restrictions on ballistic missiles, cruise missiles, unmanned aerial vehicles, and associated technologies and ensure that members abide by the same standards in determining export regulations
NPT cannot mandate non-NPT members to adopt export controls. NPT does not address non-state actor nuclear risks UN Security Council Resolution 1540 (universal and legally binding on all states) Requires all states to implement measures aimed at preventing non-state actors from acquiring WMD, related materials, and their means of delivery (including export controls)
No treaty directly addresses mechanisms to interdict illegal transfers or shipments of WMD, delivery systems, or related materials Proliferation Security Initiative Cooperation to impede and stop the flow of WMD and to interdict potential shipments to state or non-state actors transported by sea, air, or land
Nuclear security treaties do not provide for international cooperation to secure sensitive materials Nunn-Lugar / Cooperative Threat Reduction Program; Global Partnership Against the Spread of Weapons and Materials of Mass Destruction; Global Threat Reduction Initiative (GTRI) Varying mandates, including to dismantle WMD and associated infrastructure in the former Soviet Union and other regions; consolidate and secure related technology and materials; support defense and military cooperation; provide funding for nonproliferation initiatives
Lack of framework for international cooperation to prevent nuclear terrorism Global Initiative to Combat Nuclear Terrorism Strengthen capacity for prevention, deterrence, and response to nuclear terrorism through integration of collective capabilities and resources

Other than treaties, what legally binding instruments make up the nuclear nonproliferation regime?

The United Nations Security Council can make legally binding decisions related to the nonproliferation regime if it decides that proliferation constitutes a threat to international peace and security and passes a Chapter VII resolution. The best-known example of this is the Security Council’s passage of Resolution 1540. The Security Council has also passed resolutions requiring certain states, such as Iran and North Korea, to cooperate with the IAEA and to suspend their nuclear-related activities, and imposing sanctions on them for their refusal to comply. Chapter VII resolutions are legally binding on all UN Member States.

What is United Nations Security Council Resolution 1540?

UN Security Council Resolution 1540 was adopted by the United Nations Security Council on April 28, 2004. It is legally binding on all UN member states, requiring them to implement measures aimed at preventing non-state actors from acquiring weapons of mass destruction (WMD), related materials, and their means of delivery

  • Adopted under Chapter VII of the United Nations Charter, UNSCR 1540 states that “the proliferation of nuclear, chemical and biological weapons, and their means of delivery constitutes a threat to international peace and security”[i]
  • The 1540 Committee – a subsidiary body to the UN Security Council consisting of 15 members – was established following the adoption of UNSCR 1540 to facilitate and monitor its implementation
  • UNSCR 1673, adopted in April 2006, extended the mandate of the 1540 Committee for two years
  • UNSCR 1810, adopted in April 2008, extended the mandate for three additional years
  • UNSCR 1977, adopted in April 2011, extends the mandate of the 1540 Committee for a period of ten years (to 2021)

How does UNSCR 1540 contribute to the nonproliferation regime?

Other components of the regime deal with the threat of state-level proliferation; UNSCR 1540 addresses the challenges of proliferation by non-state actors by requiring UN member states to refrain from supporting non-state actors in the development, acquisition, manufacture, possession, transport, transfer, or usage of nuclear, chemical, or biological weapons and their delivery systems. States must:

  • adopt measures that criminalize WMD proliferation
  • enact effective export and other controls (including financial, transit, transshipment and brokering controls)
  • secure sensitive materials[ii]

What challenges does UNSCR 1540 face?

  • Incomplete reporting: In 2013, 22 out of 192 member states had not submitted national reports to the 1540 Committee concerning the status of their proliferation controls
  • Incomplete implementation: Some states, particularly developing economies, provide very little detail on their domestic frameworks in their reports. A report may, for example, state that a country has no nuclear, chemical, or biological weapons, but not provide any detail on measures it has implemented to prevent its territory from being used as a transit route for nuclear, chemical, or biological weapons
  • “Unfunded mandate”: the Resolution has no concrete provisions to directly assist states in implementing its requirements, leading some developing states to protest that there is a capacity gap (although the 1540 Committee and a number of the Resolution’s supporters have actively offered assistance)

What are export control groups and how do they contribute to the nuclear nonproliferation regime?

Under the NPT, states parties commit not to provide nuclear material or equipment specially designed for its production to non-nuclear-weapon states unless they accept IAEA safeguards. The treaty, however, does not give any further guidance on export controls and how states should implement them. Some states have therefore set up informal groups to develop common lists of relevant materials and technologies, and to work together to control and restrict their export. Multilateral export control groups ensure that supplier states have similar export control legislation in place so that they do not undercut one another, and potential proliferators cannot take advantage of loopholes. Some of these groups focus on nuclear materials and technologies, while others cover delivery vehicles, and particularly missiles. Export control groups include:

Nuclear Suppliers Group

  • Formed in 1974, thanks to U.S.-led efforts, in response to India’s nuclear test
  • Currently 48 member states and the European Commission as a permanent observer
  • Created to tighten the conditions for export of nuclear materials and technologies, so that supplier states will not either intentionally or inadvertently support nuclear proliferation with their exports
  • Established two sets of guidelines for nuclear exports and nuclear-related exports
  • Requires members to agree to the Non-Proliferation Principle, which states that transfer of fissile material should only be approved if it will not contribute to the spread of nuclear weapons
  • Requires recipients to have a Comprehensive Safeguards Agreement and an Additional Protocol or other appropriate safeguards agreements with the IAEA, including a regional accounting and control arrangement for nuclear materials, as approved by the IAEA Board of Governors (with one exception granted to India, a state that does not have a Comprehensive Safeguards Agreement)
  • All transfers must cease if a recipient state is found to be non-compliant with its IAEA safeguards agreement

Zangger Committee

  • Also known as the NPT Exporters Committee[iii]
  • Currently composed of 38 member states, including all NPT nuclear weapon states
  • Members agree to export fissile material and fissile material production technologies to non-nuclear weapons states only on the condition that they are placed under IAEA safeguards
  • Members demand a non-explosive use assurance and a re-transfer clause binding the receiving state to comply with the Zangger Committee’s guidelines for the re-sale of the equipment obtained
  • Written in two different memoranda, the Zangger Committee Understandings are also called the “Trigger List” because the listed exports “trigger” IAEA safeguards
  • The first memorandum outlines the requirements on exporting source and special fissionable material, while the second outlines equipment and material designed for the processing, use, or production of such material

Hague Code of Conduct against Ballistic Missile Proliferation (HCOC)

  • Pursues confidence-building measures based on the sharing of information
  • Requires member states to declare their ballistic missile policies and tests on a yearly basis, and to warn other states before the launch of space launch vehicles and ballistic missiles
  • State signatories commit not to contribute, support, or assist ballistic missile programs in states that might be pursuing weapons of mass destruction
  • Remains useful as a supporting measure to the broader MTCR

Missile Technology Control Regime (MTCR)

  • Formed in 1987
  • Current membership: 34 states
  • Establishes export restrictions on ballistic missiles, cruise missiles, and unmanned aerial vehicles (UAVs), as well as the technologies and individual parts required for these weapons[iv]
  • Does not cover manned airplanes[v]
  • Controlled exports listed in the MTCR Annex are classified as either Category 1 or Category 2

What challenges do multilateral export control groups face?

  • Non-Aligned Movement (NAM) member states often criticize strategic trade controls, arguing that export controls limit economic development and deepen the existing technological divide between developed and developing states
  • NAM members are also concerned that export controls may impede peaceful uses of nuclear energy. Export control group members respond by pointing out that export controls have rarely affected their capacity to export products and technologies, and that in some cases, such controls facilitate peaceful nuclear cooperation
  • Some NAM states argue that export control groups should be more transparent about their procedures for making decisions and/or that export controls should be designed and implemented in a more multilateral and inclusive fashion
  • Some states have also urged that should a recipient state terminate, withdraw from, or be found in non-compliance with its safeguards agreement, the supplier state would have a right to require the return of nuclear material and equipment, or any nuclear material produced through the agreement

What other (non-binding) multilateral arrangements and instruments make up the nuclear nonproliferation regime?

Such initiatives have primarily arisen following major events, including the break-up of the Soviet Union in the early 1990s, the September 11, 2001 terrorist attacks, and revelations in the early 2000s concerning the illicit proliferation activities of the A.Q. Khan network. Following these events, many policymakers concluded that the nonproliferation regime had not kept pace with the evolving global security environment. This resulted in the establishment of several new initiatives.These flexible, multilateral, voluntary instruments – which U.S. officials often label activities rather than organizations – are intended to provide new tools to counter the new threats. They contribute to the nuclear nonproliferation regime by:

  • Facilitating state resources sharing, acting as a force multiplier
  • Strengthening states’ capacity for incident response
  • Strengthening relationships among member states and fostering communication on counterproliferation efforts
  • Encouraging buy-in by enabling states to participate according to their abilities and interests

Key examples include:

Nunn-Lugar / Cooperative Threat Reduction Program

  • Founded by Senators Sam Nunn (D-GA) and Richard Lugar (R-IN) through the passage of the Soviet Threat Reduction Act in November 1991
  • Objective: Dismantle WMD and associated infrastructure; consolidate and secure related technology and materials; and support defense and military cooperation with the goal of preventing proliferation
  • Originally intended to address former Soviet WMD threats, particularly large nuclear arsenals inherited by former Soviet states Russia, Ukraine, Belarus, and Kazakhstan after the Soviet Union’s collapse
  • Has incrementally expanded to other geographic areas, primarily in Asia, Africa, and the Middle East

Proliferation Security Initiative

  • Voluntary export interdiction group intended to stop shipments of biological, chemical, and nuclear weapons, as well as missiles and goods that could be used to deliver or produce such weapons, to terrorists and countries suspected of trying to acquire them
  • Created by U.S. President George W. Bush’s administration in May 2003[vi]
  • Seventy-two countries are PSI Partner States, including Russia[vii]
  • Serves primarily as a forum to share information and promote partnerships
  • Participants must endorse the PSI Statement of Interdiction Principles, which requires them to avoid WMD-related trade with countries of proliferation concern, and to permit their own vessels and aircraft to be searched if suspected of transporting proliferation-relevant goods

Global Partnership Against the Spread of Weapons and Materials of Mass Destruction

  • Born in 2002 out of the Cooperative Threat Reduction program; broadens that initiative to include other actors
  • Committed seven major industrial countries (Canada, France, Germany, Italy, Japan the United Kingdom, and the United States), plus other donor participants, to raising up to $20 billion over 10 years to fund nonproliferation projects, principally in Russia but also in other states
  • “10 plus 10 over 10″ initiative called for the United States to contribute $10 billion, and the other original G-7 states to contribute a combined $10 billion

Global Threat Reduction Initiative (GTRI)

  • Established by the U.S. National Nuclear Security Administration in May 2004
  • Objective: Identify, secure, remove, and/or facilitate the removal of vulnerable nuclear and radiological materials around the world
  • Incorporated, among other programs, longstanding U.S. efforts under the Reduced Enrichment for Research and Test Reactors program to convert domestic and foreign research reactors from weapons-useable highly enriched uranium fuel to low-enriched uranium fuel

Global Initiative to Combat Nuclear Terrorism (GICNT)

  • Launched by the United States and Russia on July 15, 2006 to expand and accelerate the development of their partnership capacity to combat the global threat of nuclear terrorism
  • Open to other partner nations, which currently number 75
  • Objective: Strengthen capacity for prevention, deterrence, and response to nuclear terrorism
  • Participants have adopted a core set of principles designed to prevent, manage, and respond to attacks involving nuclear or radiological materials
  • Implementation and Assessment Group (IAG), which is responsible for coordinating the GICNT’s activities, provides assistance to governments seeking to implement the GICNT Statement of Principles; also helps to develop the work plan and measure the effectiveness of GICNT-sponsored activities
  • Organized to encourage broad participation; in theory, all a country has to do to join is to endorse the GICNT Statement of Principles

What are the major challenges for voluntary multilateral instruments?

  • Voluntary nature means that the efficacy of initiatives is sometimes undermined by limited support in critical regions – for example, Indonesia and Malaysia, which have important international shipping routes, are not members of the Proliferation Security Initiative
  • Few metrics to assess success in achieving nonproliferation goals – information about successes or failures is often not made public
  • Concern over legality of activities that operate outside the UN framework
  • U.S. leadership of these initiatives is viewed with suspicion by some states, who see these activities as attempts by the United States to exert strategic dominance

Sources

[i] “Main Page.” 1540 Committee, United Nations. 2013. www.un.org/en/sc/1540.

[ii] Ibid.

[iii] “Our Mission.” Zangger Committee, BMWFJ. 2002. www.zanggercommittee.org.

[iv] Suchan, Gregory M. “U.S. and Multilateral Export Controls on UAS Transfers.”  National Defence Industrial Association. 11 November 2011. Presentation. http://www.ndia.org/Divisions/Divisions/International/Documents/247E/Suchan%20AUVSI%20-%20ITAR%20and%20MTCR%20-%20revised%20(2).pdf.

[v] Ibid.

[vi] “Proliferation Security Initiative (PSI).”  Nuclear Threat Initiative. 15 November 2013. http://www.nti.org/treaties-and-regimes/proliferation-security-initiative-psi/.

[vii] “Proliferation Security Initiative (PSI): Proliferation Security Initiative 10th Anniversary High-Level Political Meeting.” United States Department of State.  28 May 2013. http://www.state.gov/t/isn/c10390.htm.