January 06, 2023
Nuclear Non-Proliferation … If You Can Keep It
By: Henry D. Sokolski
Peaceful Nuclear Futures: Hardly Assured
Nuclear proliferation has hardly slowed in the last decade. India, Pakistan, China, and the United Kingdom have increased their nuclear weapons stockpiles, while leaders in Turkey, Saudi Arabia, South Korea, and Iran have all voiced an interest in militarizing their nuclear programs. The United States, meanwhile, has been schizophrenic in its control of its civilian nuclear exports. Washington has tightened restraints on exports to the United Arab Emirates (UAE), Taiwan, China, and Russia and relaxed conditions on nuclear transfers to Vietnam, India, and Saudi Arabia. It has also articulated ambiguous security assurances to insecure states, including Libya, Taiwan, and Ukraine, that gave up their nuclear weapons programs or nuclear weapons based on their soil only later to be overthrown, threatened with invasion, or invaded.
None of this has strengthened nuclear non-proliferation. Just the reverse. In a series of firsts, Iran’s foreign minister, Mohammad Javad Zarif; Saudi Arabia’s crown prince, Mohammed bin Salman; and Turkey’s president, Recep Tayyip Erdoğan, have all publicly threatened to leave the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 729 U.N.T.S. 161 (entered into force Mar. 5, 1970). See Reuters, Iran Says It Will Quit Non-Proliferation Treaty if Case Goes to UN, VOA News, Jan. 20, 2020; CBS News, Saudi Crown Prince: If Iran Develops Nuclear Bomb, So Will We, Mar. 15, 2018; Reuters, Erdogan Says It’s Unacceptable That Turkey Can’t Have Nuclear Weapons, Sept. 4, 2019. South Korea’s public, meanwhile, overwhelmingly supports acquiring the bomb, and leaders in South Korea and Japan have called on the United States to redeploy nuclear weapons on their soil (something the Pentagon has so far resisted). Toby Dalton et. al., Thinking Nuclear: South Korean Attitudes on Nuclear Weapons, Chicago Council on Global Affairs, Feb. 21, 2022; Sayuri Romei, The Legacy of Shinzo Abe: A Japan Divided About Nuclear Weapons, Bulletin of Atomic Scientists, Aug. 24, 2022.
Then there is Washington’s enthusiasm to develop and export advanced, small, modular reactors. See World Nuclear Association, “Small Nuclear Power Reactors,” May 2022. These plants’ backers allow that many of these new reactors could use or produce super weapons-grade plutonium and may need to be fueled with uranium containing five to seven times more of the weapons-useful isotope U235 than what most reactors now use. See American Nuclear Infrastructure Act of 2020, S. 4897, 116th Cong. § 103 (2020); Victor Gilinsky & Henry Sokolski, Fast Reactors Also Present a Fast Path to Nuclear Weapons, National Interest, Sept. 26, 2021. The spread of such plants is only likely to increase spent reactor fuel recycling and uranium enrichment—activities critical to making nuclear weapons.
China, Iran, Turkey, Japan, South Korea, and Saudi Arabia have each expressed interest in building civilian uranium enrichment or spent fuel reprocessing plants or fast reactors. All of these countries but Turkey and Saudi Arabia are currently operating, developing, or building such plants and all have considered acquiring nuclear weapons or want to build more. In China’s case, the Pentagon believes Beijing will use its civilian fast-reactor program to expand its nuclear weapons production capacity significantly. Off. of Sec’y of Def., Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China (2021). Interest in such civilian nuclear systems has catalyzed mutual suspicions. China views Japan’s and South Korea’s fast reactor and spent fuel recycling programs as nuclear weapons options, and Japan and South Korea view each other’s and China’s programs in a similar fashion. See China Arms Control & Disarmament Ass’n, Study on Japan’s Nuclear Materials (Sept. 2015); Frank N. von Hippel, South Korean Reprocessing: An Unnecessary Threat to the Nonproliferation Regime, Arms Control Today, Mar. 2010. Meanwhile, Saudi Arabia and its neighbors view Iran’s nuclear program (which includes uranium enrichment) as a weapons option, and Iran views its neighbors’ nuclear programs with similar suspicion. See Michael Eisenstadt, Iran’s Nuclear Hedging Strategy, Washington Inst. for Near East Policy, Nov. 2022. How might Turkey, Egypt, and Algeria, which also have civilian nuclear programs, react to any of these Middle Eastern states acquiring nuclear weapons? What might Australia—a country that had a nuclear weapons program in the 1960s—do if South Korea or Japan acquired bombs of their own? No one knows.
What Might Go Right: Military Science and Alliances
Fortunately, these grim developments are matched with two positive trends. The first is the recent fortification of existing allied security arrangements with explicit or tacit nuclear security assurances that should deflate the urge to “go nuclear.” Finland and Sweden have asked to join the North Atlantic Treaty Organization (NATO). See Matthew Lee, Blinken Confident in Finland, Sweden Accession to NATO, Associated Press, Dec. 8, 2022. Coincidental to the Finnish and Swedish NATO applications, the United States, United Kingdom, and Australia created AUKUS, a defense-related high-technology collaboration understanding focused on sharing nuclear submarine technology, artificial intelligence research, secure communications systems, space technologies, and development of unmanned underwater and aerial systems. The White House, Remarks by President Biden, Prime Minister Morrison of Australia, and Prime Minister Johnson of the United Kingdom Announcing the Creation of AUKUS (Sept. 15, 2021). Less formal, but also significant, is the informal security understanding known as the Abraham Accords. This arrangement has been struck between Israel, the UAE, Morocco, Sudan, and Bahrain. U.S. Dep’t of State, The Abraham Accords. Finally, there is the re-establishment in 2017 of the Quad Security Dialogue, which now consists of security and economic summits of the leaders of Australia, India, Japan, and the United States. See Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad’, War on the Rocks, Nov. 16, 2017; the White House, Quad Leaders’ Joint Statement: “The Spirit of the Quad” (Mar. 12, 2021). If these security efforts progress, concerns that any of their non-nuclear participants might go their own way and “go nuclear” should recede.
The success of these security arrangements, however, is not guaranteed. For decades, the United States has treated its allies less as equals and more like protectorates—states whose foreign affairs and military capabilities have been largely controlled by U.S. advice, financial assistance, and military largess. To compete effectively against Russia, China, and their proxies, the United States must take a new approach. Instead of dominating its friendships, the United States must trust its partners and share technologies and intelligence with them that it previously felt uncomfortable offering. Beyond this, America and its allies must befriend developing countries and international organizations that China and Russia have been influencing.
The second positive trend that may curb the spread of nuclear weapons is the advent of advanced, non-nuclear military technologies. These include kinetic and non-kinetic weapons. These systems range from precision munitions, drones, artificial intelligence and cyber warfare technologies, and advanced electronic warfare techniques to secure communications technologies, social media and information warfare campaigns, space-based command, control, communication, surveillance and intelligence systems, and unmanned underwater systems. Employed properly, these cutting-edge defense technologies promise a sea change in military operations. See Wikipedia, New Generation Warfare, Dec. 10, 2022. Instead of having to disable or deter hostile states by threatening physically to obliterate concentrations of their military, industrial, political and demographic capital (with nuclear weapons, if necessary), these new technologies promise to disable them without threatening such mayhem.
We are getting a peek at this future form of warfare with Russia’s invasion of Ukraine. Moscow has threatened to use nuclear weapons, but, more than ten months into the war, they have not been used. Instead, precise, long-range fires, information warfare, intelligence sharing (including from space-based commercial systems, such as Starlink), and drones have enabled a much smaller power—Ukraine—to fend off one of the world’s most powerful and brutal military states—President Vladimir Putin’s Russia. See Henry Sokolski, Is Missile-Driven Deterrence the Solution to the War in Ukraine?, National Interest, June 2, 2022. This unexpected success presages a revolution in military affairs that scrambles the division of labor between the current military services and existing warfare domains. See Jim Thomas, A Blueprint for Rebuilding America’s Military After the Coronavirus, National Interest, Mar. 28, 2020. More important, it could help relegate nuclear weapons to an inferior military status not unlike what transpired with chemical weapons 75 years after the Battle of Passchendaele in World War I. Henry Sokolski, A Peek Into Our Nuclear Future, American Interest, Aug. 5, 2020. A killer app in World War I, these weapons became obsolete after World War II. This optimistic prospect along with the grim nuclear trends already noted suggest how nuclear-armed our future might be. If nuclear-weapons related technologies proliferate well ahead of the fortification of existing security alliances and our mastery of new generation warfare, the odds of nuclear weapons proliferation and use will increase. But if not, just the reverse will attain.
What to Hope For (against Experience): Tighter Nuclear Rules
Which military future is more likely? No one knows. There are, however, three legal-regulatory questions whose resolution will likely determine the answer. First, will nations enforce the NPT? NPT, supra. Second, will the International Atomic Energy Agency (IAEA) update its nuclear safeguards metrics? Third, will the United States and other nuclear exporters assure timely warning of military diversions from the nuclear plants they sell?
So far, the NPT’s enforcement has been an orphaned undertaking. Unlike the Chemical Weapons Convention or the Comprehensive Test Ban Treaty, which respectively have the Organization on the Prohibition of Chemical Weapons and the Comprehensive Test Ban Treaty Organization that serve as executive secretariats, the NPT has no entity to assure its effective implementation. The lack of an NPT administrative body is an issue when enforcing and verifying the NPT’s diplomatic provisions. Article VI of the NPT requires that nuclear-armed members engage in good faith negotiations on “effective measures” to end the “nuclear arms race.” NPT, supra, at Article VI. If a state complains that an NPT member (e.g., China) is refusing to uphold this obligation, though, there is no full-time United Nations NPT staffer assigned to assess the complaint’s validity. Nor is there a full-time United Nations staffer to assess the legitimacy of petitions from NPT members to withdraw under Article X or to assess if nuclear-armed members of the NPT have given control over their nuclear weapons to another member (which is prohibited under Articles I and II). Nor does the IAEA’s staffing or organization make up for these shortcomings.
The IAEA was created a decade before the NPT came into force. It was designed not to verify or implement the NPT, but to promote civilian uses of nuclear energy and to account for special civilian nuclear materials that could be diverted to make nuclear explosives. As such, the IAEA’s 1957 charter makes no mention of the NPT. See Statute of the IAEA, Oct. 23, 1956 (entered into force July 29, 1957). After the NPT came into force in 1970, the IAEA negotiated agreements for nuclear inspection safeguards to help verify that civilian nuclear programs were not being used to make nuclear weapons. If the IAEA Board of Governors believes a country has violated an IAEA nuclear safeguards agreements, it can report that to the United Nations. The IAEA is under no clear legal obligation, however, to determine if such a violation constitutes a violation of the NPT. In addition, the IAEA is neither equipped nor inclined to assess other possible violations of the NPT. These include acquiring or transferring nuclear weapons from or to other states, encouraging or inducing states to acquire or develop them, handing control over such weapons to other states, and developing undeclared, covert nuclear weapons facilities not covered by IAEA safeguards.
Hopefully, these NPT institutional enforcement gaps will be addressed. If they are, the next question will be which NPT provisions should be enforced first. The answer is Articles VI and III.
Article VI calls for good faith negotiations on “effective measures” to end the “nuclear arms race.” NPT, supra, at Article VI. This legal restraint is one of the NPT’s few that is directly relevant to one of the most recent and dramatic nuclear build ups since the Cuban Missile Crisis—China’s. This nuclear ramp-up is not only significant in and of itself, but also stoking unhealthy interest among China’s neighbors (e.g., South Korea and Japan) to develop weapons of their own. Yet the United States and its key nuclear-armed allies are less than clear-throated about using Article VI’s enforcement to spotlight China’s misconduct. One reason for their silence is that Article VI would require them to propose nuclear security measures at a time when they are upgrading their own nuclear forces and considering the possibility of building more. Nonetheless, there are modest nuclear control measures (e.g., establishing truly effective military hotlines (besides the one between Moscow and Washington), clarifying the definition of what a nuclear test is, and reviving a 1997 IAEA agreement on reporting civilian plutonium holdings and production activities) that could usefully be discussed with Russia and China. See David Brunnstrom & Michael Martina, Strategic Clarity on Taiwan Policy Carries ‘Significant Downsides’ – U.S., Reuters, May 4, 2021; Julian E. Barnes & William J. Broad, Russia Has Restarted Low-Yield Nuclear Tests, U.S. Believes, N.Y. Times, May 29, 2019; Information Circular, Int’l Atomic Energy Agency, Communication Received From Certain Member States Concerning Their Policies Regarding the Management of Plutonium, INFCIRC/549 (Mar. 16, 1998).
Not enforcing Article VI is a mistake. Many states, frustrated with what they see as lax enforcement of Article VI, support the Treaty on the Prohibition of Nuclear Weapons (TPNW). Treaty on the Prohibition of Nuclear Weapons, opened for signature Aug. 9, 2017, A/CONF.229/2017/8 (entered into force Jan. 22, 2021). In comparison with the NPT, the TPNW is emphatic about going to zero nuclear weapons relatively quickly, which would directly undermine U.S. and allied efforts to strengthen their nuclear deterrent forces—efforts designed to reassure allies who lack nuclear weapons that they have no need to acquire them. The TPNW makes Article VI’s enforcement, which hawks have long dismissed as too radical, seem prudent by comparison. Recently, prominent people and organizations have begun discussing Article VI and China. U.S. President Joe Biden, U.S. Senator Ted Cruz, Japanese Prime Minister Fumio Kishida, the International Campaign to Abolish Nuclear Weapons, and the National Institute for Public Policy, a hawkish pro-nuclear weapons group, have all objected to Beijing’s violation of Article VI. See Pres. Biden Statement Ahead of 10th Rev. Conf. of Treaty on Non-Proliferation of Nuclear Weapons, Aug. 1, 2022; Press Release, Sen. Cruz Introduces Suspend Act to Sanction China for Arms Control and Nuclear Weapons Violations (Sept. 16, 2020); General Debate Speech by Prime Minister Kishida Fumio at Tenth Rev. Conf. of Parties to Treaty on Non-Proliferation of Nuclear Weapons, Aug. 1, 2022; Talei Luscia Mangioni, China’s Nuclear Buildup Violates International Law, Int’l Campaign to Abolish Nuclear Weapons, Nov. 12, 2021; Thomas D. Grant, China’s Nuclear Build-Up and Article VI NPT: Legal Text and Strategic Challenge, 1 Occasional Paper, no. 11, Nov. 2021. No governing body, national or international, though, has yet chosen to take action.
That is a worry. Most nations believe enforcement of Article VI is a quid pro quo to get states that lack nuclear weapons to foreswear ever getting them. That non-proliferation goal is the focus of Articles I and II of the NPT. Combined, these two articles prohibit the direct transfer or acceptance of nuclear weapons or control over them as well as direct or indirect assistance or encouragement to manufacture or acquire them. The only NPT provision to operationalize any aspect of these two articles is Article III. It explicitly blocks indirect nuclear-weapons related assistance by requiring members who lack nuclear weapons but develop “peaceful” nuclear programs (almost always with foreign assistance) to open them to routine IAEA inspections. These visits have the stated purpose of “preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.” NPT, supra, at Article III(1). Backslide on this provision’s enforcement and the NPT’s and the IAEA’s most visible operational restraints largely vanish.
Article III’s enforcement is demanding. It relies on the effectiveness of the IAEA’s nuclear safeguards system. This system, in turn, is based on nuclear materials diversion criteria. These were set more than a half century ago. See Thomas B. Cochran, Presentation to Institute of National Strategic Studies, Dep’t of Energy Conf.: Nuclear Energy’s Proliferation Problem 5 (Nov. 10, 1994). They assume that the amount of separated plutonium needed to make a bomb is eight kilograms and that the amount of highly enriched uranium needed to make a bomb is 25 kilograms. These amounts are known in IAEA jargon as “significant quantities.” The IAEA also established projected “conversion” times (i.e., the amount of time needed to convert natural and low enriched uranium and spent reactor fuel into plutonium and uranium cores for weapons). The agency uses these conversion times along with its significant quantities estimates to establish the agency’s “timeliness detection goals.” These establish how often the agency should inspect IAEA-safeguarded nuclear facilities and materials. If the timeliness detection goals are sound, the agency should be able to detect a possible military diversion before a bomb is actually built. There is only one problem. The IAEA’s metrics are wrong.
Nearly all of the IAEA safeguards figures were already too high when officials first agreed to them in 1967. They are even more egregious today. See, e.g., Information Circular, Int’l Atomic Energy Agency, Text of Agreement of 18 Nov. 1977 Between United States of America and Agency for Application of Safeguards in United States of America, INFCIRC/288 (Dec. 1981). In 1967, the agency assumed that would-be bomb makers would use the same design the United States used for the bomb it dropped on Nagasaki, Japan in 1945. This was an implosion device fueled with six kilograms of plutonium. The United States detonated it over Nagasaki at 1,500 feet. The bomb released 20 kilotons of explosive energy and killed upwards of 70,000 people. The IAEA pegged its significant quantities—eight kilograms of plutonium and 25 kilograms of highly enriched uranium—to this Nagasaki design. Unfortunately, these figures are up to 33 percent higher than what the United States actually used in 1945. Experts justify the inflated IAEA figures and contend that proliferating states would “waste” nearly 50 percent of the plutonium or highly enriched uranium they might use in making their bombs. Wastage in the Nagasaki bomb, though, was less than six percent. Gregory S. Jones, Fissile Material Conversion Times, Wastage and Significant Quantities: Lessons From the Manhattan Project, Dec. 16, 2015, at 2.
There are more difficulties. IAEA officials mistakenly assume would-be bomb makers would start with a Nagasaki weapon. Yet it has been known for at least three decades that weapons designs improved almost immediately after 1945. See Chuck Hansen, U.S. Nuclear Weapons: The Secret History (1988). These newer designs require far less plutonium and uranium to produce a 15 to 20 kiloton yield (what was released against Japan). We also know that Britain’s, France’s, and China’s first weapons all employed designs more advanced than what the United States first employed. See Nonproliferation Policy Education Center, Greg Jones on “More Than Fissile Material: Building a Bomb, The Historical Experience,” YouTube (Sept. 26, 2022).
Then there is this: if a country wanted to produce as many enemy casualties as the United States inflicted at Hiroshima or Nagasaki, it could use a much smaller bomb. In 1945, America’s two nuclear weapons exploded 1,500 feet over their targets. The U.S. Army Air Corps dropped them at this altitude to maximize blast damage against buildings. If a would-be bomb maker wanted to produce the most prompt and near-term radiation-induced deaths, though, it would employ a ground burst, which would be 20 times more effective. Thus, a one-kiloton nuclear weapon set off at ground level could kill roughly as many people as the 20-kiloton Nagasaki weapon did at 1,500 feet. Eva M. Lisowski, Hot Mess Next: Missile-Struck Reactors in the Middle East, Nonproliferation Policy Education Center, Dec. 8, 2021.
This point is anything but academic. Advanced nuclear-armed states are now developing small low-yield nuclear weapons for ground-burst nuclear operations. Their example is likely to be followed by others. This suggests pegging IAEA significant quantities not to the manufacture of a 20-kiloton device but to a one-kiloton weapon. What would that entail? A one-kiloton device requires as little as one kilogram of plutonium or four kilograms of highly enriched uranium. Thomas B. Cochran & Christopher E. Paine, The Amount of Plutonium and Highly-Enriched Uranium Needed for Pure Fission Nuclear Weapons, Natural Resources Def. Council, Apr. 13, 1995. If the IAEA pegged its safeguards metrics to these amounts, its significant quantity figures—eight kilograms of plutonium and 25 kilograms of highly enriched uranium—would have to be slashed by more than 80 percent. This decrease would force a dramatic increase in the frequency of inspections.
What is unsettling is that the use of weapons-usable nuclear fuels is projected to grow as the United States and other nations commercialize “advanced” reactors, including reactors that use, produce, and encourage recycling weapons-usable, weapons-grade, and super-weapons-grade plutonium. “Advanced” reactors also include plants that will use uranium enriched to 20 percent in the isotope U235. Uranium at this enrichment level can be quickly re-enriched to weapons-grade. As these reactor types and their fuel-making plants are deployed, the amount of material that can be converted quickly to make bomb cores will far exceed the IAEA’s ability to assure timely detection of possible military diversions. Thomas B. Cochran, Adequacy of IAEA’s Safeguards For Achieving Timely Detection, in Falling Behind: International Scrutiny of the Peaceful Atom 121 (Henry D. Sokolski ed., 2008). Would-be bomb makers will have a relatively easy time diverting a bomb’s worth of plutonium or highly enriched uranium, either incrementally (without anyone knowing) or abruptly (before anyone could block the completion of a bomb).
Each of these observations recommends wire brushing the IAEA’s safeguards criteria. Such a scrub should include re-evaluating how large a bomb we should prevent from being built, how much material it takes to build one (i.e., what a “significant quantity” is), how long it might take to divert enough material to make such a bomb (i.e., what realistic “conversion times” are), and how frequently the IAEA should conduct inspections (i.e., what its “timeliness detection goals” should be). A scrub also should consider if certain dangerous nuclear materials and activities—weapons-usable plutonium and uranium and their means of production—are so close to bomb-making that even the strictest inspections would be inadequate safeguards.
The U.S. Congress has made several attempts to ensure nuclear safeguards are truly effective. The most important of these attempts is the Nuclear Non-Proliferation Act of 1978, 22 U.S.C. § 3201 (1978), which requires that the U.S. government certify that “timely warning” of any possible military diversion of weapons explosive plutonium is possible before approving the recycling of U.S.-origin spent fuel. Unfortunately, conscious neglect of this provision for more than four decades has rendered it a dead letter. Eldon V.C. Greenberg, U.S. Law, Advance Consents for Reprocessing and the “Timely Warning” Standard, Nonproliferation Policy Education Center, May 2019. Last year, several U.S. senators suggested future civilian nuclear cooperation with Iran and Arab states be conditioned on those states forswearing uranium enrichment and plutonium recycling. See Iran Int’l Newsroom, Senators’ Call For Zero Enrichment Highlights Fears Over Iran Talks, Sept. 6, 2022; Lindsay Graham & Jack Keane, Call Iran’s Bluff with and Offer of Nuclear Power, Wall St. J., July 14, 2019. So far, no understanding has been struck with Iran, nor has Congress voted on final passage of any serious legislation advancing these ideas.
Will the noted gaps in U.S. and international nuclear non-proliferation institutions, laws, policies, and rules be closed? Hardened observers would say no, that more nuclear proliferation and even use of nuclear weapons are coming. See, e.g., Matthew Rendall, Nuclear War as a Predictable Surprise, 13 Global Policy 782 (Nov. 2022). Given the relative inattention that has been paid over the last decade to the nuclear proliferation developments, continuing as we have for yet another ten years seems more likely than not. That hardly augurs well.
Editor’s Note: for more information about the Treaty on the Prohibition of Nuclear Weapons, see Middlebury Inst. of Int’l Studies at Monterey, The Treaty on the Prohibition of Nuclear Weapons (TPNW): A Virtual Special Issue of the Nonproliferation Review (June 21, 2022). For a review of the Joint Comprehensive Plan of Action, or Iran nuclear agreement, see Kali Robinson, What Is the Iran Nuclear Deal?, Council on Foreign Relations, July 20, 2022.
The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.
The views expressed herein represent the opinions of the authors. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.