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Arms Control and National Security PUBLIC INTERNATIONAL LAW Arms Control and National Security JOHN R. BURROUGHS, JONATHAN GRANOFF, JOHN H. HARRINGTON, BONNIE D. JENKINS, BARRY KELLMAN, AND MARK S. ZAID* I. Introduction The horrific events of September 11, 2001 defined national and international security concerns for the year. The importance of arms control was strongly emphasized by the Secretary-General of the United Nations, Kofi Annan, on October 1, 2001, before an emergency session on terrorism of the General Assembly when he said, It is hard to imagine how the tragedy of September 11 could have been worse. Yet, the truth is that a single attack involving a nuclear or biological weapon could have killed millions. While the world was unable to prevent the 11 September attacks, there is much we can do to help prevent future terrorist acts carried out with weapons of mass destruction. The greatest danger arises from a non-State group--or even an individual-acquiring and using a nuclear, bio- *John R. Burroughs is Executive Director of the Lawyers' Committee on Nuclear Policy, a non-profit group based in New York City, which engages in legal and policy research, education, and advocacy in support of nuclear arms control, disarmament, and non-proliferation and of rule-of-law-based global security in national and international settings. Jonathan Granoff is president of Global Security Institute. Mr. Granoff serves as co-chair of the Committee on Arms Control and National Security of the ABA Section of International Law and Practice, as well as United Nations representative of Lawyers Alliance for World Security. John H. Har- rington serves as vice-chair of the Committee on Arms Control and National Security of the ABA Section of International Law and Practice. Mr. Harrington maintains a private practice in Fairfield, Connecticut engaged in International Commercial Arbitration, Land Use, Real Estate, and Elder Law. Bonnie D. Jenkins is a Ph.D. candidate in international relations at the University of Virginia. Ms. Jenkins holds the following positions in the ABA Section of International Law and Practice: Council Member, Co-Chair of the Law Student and New Lawyers Outreach Committee, and Vice-Chair of the Arms Control and National Security Committee. Her areas of specialization are international security, treaty law, arms control, nonproliferation and disarmament of weapons of mass destruction. Barry Kellman is Professor of Law at DePanl College of Law and serves as co-director of the International Criminal Justice and Weapons Control Center of the DePaul International Human Rights Law Institute. Professor Kellman is also a legal authority on the Chemical Weapons Convention and has advised the Defense and Energy Departments on legal issues relating to weapons control. Mark S. Zaid is Of Counsel with the firm of Lobel, Novins & Lamont in Washington, D.C. Mr. Zaid specializes in litigation and administrative claims relating to national security, media law, First and Fifth Amendments, Administrative Procedure Act, and the Freedom of Information/Privacy Acts. Mr. Zaid is also currently Ex- ecutive Director of The James Madison Project, a non-profit organization promoting reduction of secrecy and government accountability. 472 THE INTERNATIONAL LAWYER logical, or chemical weapon. Such a weapon could be delivered without the need for any missile or other sophisticated delivery system ... we must now strengthen the global norm against the use or proliferation of weapons of mass destruction. This means, among other actions: Redoubling efforts to ensure the universality, verification and full implementation of key trea- ties relating to weapons of mass destruction, including those outlawing chemical and biological weapons and the non-proliferation treaty.' Prior to September 11, expectations for multilateral progress in arms control were quite low.' The year had begun with the release on January 11, 2001 of the Donald Rumsfeld- chaired Report of the Commission to Assess United States National Security Space Management and Organization,' which expressed strong support for radically departing from the inter- national norm of preserving space from weaponization.4 The report, relying heavily on Vision 2020 of the U.S. Space Command,5 which calls for unilateral U.S. "Full Spectrum Dominance" of the entirety of land, oceans, outer space and cyber-space, proposes the preparation for war fighting by the United States in and through space. Many believed that in the wake of September 11 a new and robust multilateralism would emerge in arms control. These expectations were quickly dashed: 1. The United States boycotted the Comprehensive Test Ban Treaty Conference on Facili- tating Entry Into Force in mid November. 2. In December 2001, the United States caused the Review Conference of the Biological Weapons Convention to end abruptly when it proposed terminating the group charged with negotiating a Protocol on verification of compliance with the ban on biological weapons less than two hours before the Protocol's scheduled completion. I. Press Release, United Nations, Secretary-General, Addressing Assembly on Terrorism, Calls For 'Im- mediate, Far Reaching Changes' in UN Response to Terror, U.N. Doc. SG/SM/7977, GA/9920 (Oct. 1, 2001), availableat http://www.un.org/News/Press/docs/200l/sgsm7977.doc.htm. Secretary-GeneralAnnan has consistently emphasized the need for progress on arms control in response to terrorism. On September 17, 2001, he stated before the International Atomic Energy Agency, "Making progress in the areas of nuclear non- proliferation and nuclear disarmament is more important than ever in the aftermath of last week's appalling terrorist attack on the United States. The States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) agreed last year that this challenge could not be overcome by halfway measures. Indeed, they concluded that 'the total elimination of nuclear weapons is the only absolute guarantee against the use or threat of use of nuclear weapons.' Regrettably, several important treaties aimed at nuclear non-proliferation, nuclear disarmament or nuclear reductions still await entry into force. It is vitally important for the world community to continue its efforts to implement the commitments already made, and to further identify the ways and means of achieving nuclear disarmament as soon as possible." Press Release, United Nations, Nuclear Disarmament Progress Even More Important After Terrorist Attack on United States Says Secretary-General to Atomic Energy Meeting (Sept. 17, 2001), available at http://www.un.org/News/Press/docs/2001/sgsm7958.doc.htm. 2. National Security Advisor Condoleezza Rice stated, "[A] Republican administration will.., proceed from the firm ground of the national interest, not from the interests of an illusory international community." Con- doleezza Rice, Promoting the National Interest, FoREIGN AFFAIRS, Jan.-Feb. 2000, at 45, 62. 3. Repsrt sf tbe Csmmission ts Assess United States NatisnalSecurity SpaceManagement and Organizationavailable at http://www.defenselink.mil/pubs/space200 10111 .html. 4. See Report of the Committee on the Peaceful Uses of OuterSpace, U.N. GAOR, 53rd Sess., No. 20, U.N. Doc. A/56/20 (2001), available at http://www.un.org/events/unispace3/index.html; see also United Nations, General Assembly Resolutions and Treaties Pertainingto the Peaceful Uses of Outer Space, at http://www.un.org/events/ unispace3/index.htnl. 5. U.S. Air Force, Joint Vision 2020, Future Warfare, available at http://www.dtic.mil/jv2020; see U.S. Space Command, Long Range Plan, availableat http://www.spacecom.af.mil/usspace/LRP/cover.htm; U.S. Air Force, America's Air Force Vision 2020, available at http://www.af.mil/vision; U.S. Space Command, Space and lnfbr- mation: The Warfigbter's Edge, availableat http://www.spacecom.af.mil/usspace. VOL. 36, NO. 2 ARMS CONTROL AND NATIONAL SECURITY 473 3. In December 2001, the United States announced that it would withdraw from the 1972 Anti-Ballistic Missile Treaty and pursue deployment of a national missile defense with the inclusion of space based potentially offensive weapons such as lasers and kinetic kill weapons. 4. In November 200 1, the U.N. General Assembly voted overwhelmingly in favor of A/RES/ 56/23, Prevention of an Arms Race in Outer Space (156 votes in favor; zero opposed, with the United States, Israel, Micronesia, and Georgia nonvoting). The resolution calls for negotiating a multilateral agreement to prevent an arms race in space.6 Countries have pinpointed unilateral space weaponization as an indication of the U.S. lack of resolve in arms control. 5. In January 2001, the bipartisan Baker-Cutler Task Force recommended a tenfold increase in funding to safeguard nuclear grade fissile materials. This plea was echoed at the Novem- ber 2001 meeting of the International Atomic Energy Agency's (IAEA) Special Session on Combating Nuclear Terrorism. The United States has thus far not supported efforts to strengthen safeguards notwithstanding the IAEA report of over 170 cases of trafficking in nuclear materials since 1993, the inadequacy of the safeguards of over 1,000 metric tons of fissile materials in Russia, and the demonstrations by U.S. Army and Navy commando teams that U.S. nuclear facility security systems are woefully inadequate.7 In an apparent spirit of cooperation, Russian President Vladimir Putin and President George Bush agreed to reduce nuclear warhead stockpiles to a level of 1,700 to 2,200 by 2012, but ended the year without a formal document. However, a closer look reveals that the United States contemplates retaining roughly seven to nine times as many weapons in a reserve status, thus rendering the cuts somewhat less than purported. Presently, there are over 30,000 nuclear weapons in the world, with over 90 percent in the hands of Russia and the United States, and over 5,000 of those on hair-trigger alert, meaning they could be fired on less than fifteen minutes notice. However, September 11 did stimulate dramatic military and police initiatives both nationally and internationally.
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