Removing Weapons of Mass Destruction from the World’S Most Volatile Region: How to Achieve a Wmd-Free Zone in the Middle East

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REMOVING WEAPONS OF MASS DESTRUCTION FROM THE WORLD’S MOST VOLATILE REGION: HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST

ABRAHAM SHANEDLING*

ABSTRACT Eliminating weapons of mass destruction (WMD) from the Middle East continues to be a pressing issue of both regional and global security concern. Several other regional state groups have already expanded on the Nuclear Non-Proliferation Treaty by establishing nuclear weapons free zone (NWFZ) treaties, however the proposal to establish a NWFZ or an expanded WMD free zone (WMDFZ) in the Middle East has long remained merely an aspirational goal. This Note examines the historical and present challenges facing the creation of a Middle East WMDFZ treaty and outlines various steps that regional parties should take to achieve such a zone. Drawing from the experiences of other regions in establishing NWFZs, the obligations of those regional treaties, and global non-proliferation treaties and resolutions, this Note recommends a series of short-term conﬁdence-building measures to break the impasse in negotiating a Middle East WMDFZ and presents a set of core components for a future zone treaty.

I. INTRODUCTION ...... 316 II. THE INTERNATIONAL LEGAL FRAMEWORK FOR WMD-FREE ZONES ...... 318 III. THE EXISTING NUCLEAR WEAPONS FREE ZONE REGIME ...... 322 IV. THE HISTORY OF MIDDLE EAST ZONE PROPOSALS ...... 328 A. The Development of the Middle East Zone Proposal ...... 329 B. Broader Obstacles in the Current Impasse ...... 335 V. BREAKING THE DEADLOCK ...... 339 A. A Nuclear or a WMD Free Zone? ...... 340 B. Conﬁdence-building Measures ...... 343 1. Treaty Adoption, Declarations, and Transparency ...... 344

* J.D., Georgetown University Law Center, expected May 2015. B.A. with Honors, University of Wisconsin-Madison, 2009. The author thanks Professor David Koplow for his thoughtful guidance and feedback on earlier drafts of this Note. The author also thanks the editors and staff of the Georgetown Journal of International Law for their assistance, as well as his family and friends for their unwavering support. © 2014, Abraham Shanedling.

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2. Regional Security Forum and Information Sharing...... 345 3. Mutual Recognition ...... 346 4. External Support ...... 346 VI. ELEMENTS OF A FUTURE MIDDLE EAST WMDFZ ...... 347 A. Scope of the Zone ...... 348 B. Basic Obligations ...... 350 C. Veriﬁcation ...... 353 D. Compliance and Dispute Resolution ...... 356 E. Additional Protocols and Security Assurances ...... 359 VII. CONCLUSION ...... 360

I. INTRODUCTION

“[T]here are moments in the life of nations and peoples when it is incumbent on those known for their wisdom and clarity of vision to overlook the past, with all its complexities and weighing memories, in a bold drive towards new horizons.” —Anwar Sadat1

Of all the regions in the world, none may be more volatile than the Middle East. Deep-rooted tensions and mistrust over religion, territory, political authority, and military might have fueled turmoil in the area for decades, making it a living nightmare for arms control. One of the most pressing threats in the region—if not the most—is the actual and existential threat posed by weapons of mass destruction (WMD): nuclear, chemical, and biological weapons. Several states and possibly non-state actors have used or attempted to use chemical weapons; others have attempted to or have successfully developed biological weapons; at least one state (Israel) is presumed to have advanced nuclear weapons; and others have sought to develop nuclear weapons at different levels of success (Iraq, Syria, Iran, and Egypt). Compound- ing the issue is the recent uncertainty over the region’s political landscape and the rising prominence of non-state terrorist organizations that have expressed repeated interest in obtaining non-conventional weapons for their ideological purposes. Given the increased availability and transferability of technologies of mass destruction, one of the most prominent arms control proposals

1. Anwar Sadat, Egyptian President, Speech Before the Israeli Knesset (Nov. 20, 1977), available at http://www.knesset.gov.il/description/eng/doc/Speech_sadat_1977_eng.htm.

316 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST among Middle East states for at least the last forty years has been the establishment of a multilateral Middle East zone free of nuclear weapons or, more broadly, a regional ban on all WMD. Over the years, several other regional state groups have bound themselves to denucle- arize through nuclear weapons free zones (NWFZs), including state groups in Latin America, the South Pacific, Africa, Southeast Asia, and most recently Central Asia. However, the proposal to create a NWFZ or a WMD-free zone (WMDFZ) in the Middle East has had a long and troubled history. Core challenges include the underlying value of WMD for deterrence and offensive capabilities, distrust between state leaders, differing positions regarding the scope and priorities of a future zone, and the lack of a formal regional forum to facilitate dialogue and negotiations. Yet despite these challenges, all major Middle East states have, at varying levels of confidence, continued to endorse the proposal for a zone. This includes Israel, likely the only state with a nuclear arsenal in the region. Additionally, numerous state leaders, international organizations, and arms control analysts have recognized the idea of a WMDFZ as the ultimate means toward achieving security in the region, maintaining and extending the protections of the current nonproliferation legal regime, and aspiring toward the ultimate objective of achieving a world free of WMD. This Note examines the challenges Middle East states have faced and possible measures they should take toward developing a WMDFZ. Section II of the Note briefly surveys the relevant international legal backdrop behind NWFZs and WMDFZs. Section III provides an overview of the existing NWFZs and their contribution to the nonproliferation regime. Section IV outlines the relevant history of proposals and efforts to establish a Middle East zone (nuclear or WMD), including the state of the current impasse. Section V posits the first half of the thesis: that (1) to be effective and acceptable, a Middle East zone must be more ambitious than previous NWFZs, and (2) Middle East states, along with nuclear weapons states and external powers, should take certain confidence-building measures to break the deadlock and lay the groundwork for a Middle East WMDFZ. Building on this framework, Section VI offers the second half of the thesis: an outline of key components for a future zone treaty, drawing from existing NWFZs, past Middle East zone proposals, and nonproliferation resolutions as models. Finally, the last Section presents some concluding thoughts. The prospect of establishing a WMDFZ in the Middle East is certainly an ambitious undertaking—one that amid today’s political climate is largely unrealistic in the foreseeable future. However, the current

2014] 317 GEORGETOWN JOURNAL OF INTERNATIONAL LAW deadlock should not stymie all hopes of progress. Instead, the aim of this Note is to reﬂect on both short and long-term ways to move the process forward against the odds.

II. THE INTERNATIONAL LEGAL FRAMEWORK FOR WMD-FREE ZONES The establishment of a NWFZ or WMDFZ in the Middle East would represent a regional means of strengthening global non-proliferation and disarmament norms by expanding existing international treaties and subsequent resolutions.2 The general legal authority for the creation of nuclear or WMD free zones emanates from the 1945 United Nations Charter, which in Article 1 dictates the broad mandate on parties to “maintain international peace and security” through “effective collective measures.”3 More aptly, Article 52 of the Charter recognizes the role of “regional arrangements or agencies for dealing with...the maintenance of international peace and security....”4 In the footsteps of the U.N. Charter, the 1968 signing of the Nuclear Non-Proliferation Treaty (NPT)5 represented the international community’s first concrete step to limit the proliferation of WMD, and set the stage for the creation and obligations of NWFZs.6 Article VII of the Treaty, for example, specifically recognizes the right of states to establish NWFZs, stating that “nothing in this Treaty affects the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.”7 At the time of the NPT’s signing, five countries had declared themselves nuclear powers—the United States, the United Kingdom, the Soviet Union, China, and France—which under the NPT were deemed the “nuclear-

2. See Nuclear-Weapon-Free Zones, U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://www.un.org/ disarmament/WMD/Nuclear/NWFZ.shtml (last visited Mar. 19, 2014); PAOLO FORADORI & MARTIN B. MALIN,HARVARD KENNEDY SCHOOL, A WMD-FREE ZONE IN THE MIDDLE EAST:CREATING THE CONDITIONS FOR SUSTAINED PROGRESS 43 (2012) [hereinafter FORADORI &MALIN 2012]; U.N. GAOR, U.N. Disarmament Commission, Report of the Disarmament Commission, Annex I, ¶¶ 11, 13, U.N. Doc. A/54/42 (May 6, 1999) [hereinafter 1999 Disarmament Commission Report], available at http://www.un.org/ga/search/view_doc.asp?symbolϭA/54/42(SUPP). 3. U.N. Charter art. 1, para. 1. 4. U.N. Charter art. 52, para. 1. 5. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter NPT]. 6. Lisa M. Schenck & Robert A. Youmans, From Start to Finish: A Historical Review of Nuclear Arms Control Treaties and Starting over with the New Start,20CARDOZO J. INT’L &COMP. L. 399, 408 (2012). 7. NPT, supra note 5, art. VII.

318 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST weapon state parties” (NWS).8 Under the terms of the Treaty, which came into force in 1970, the NWS agreed not to transfer nuclear weapons to non-nuclear weapon states (NNWS)9 and to pursue eventual nuclear disarmament.10 Meanwhile, NNWS agreed to refrain from the manufacture, acquisition, or transfer of nuclear weapons or other nuclear explosive devices,11 as well as to accept full safeguards by the International Atomic Energy Agency (IAEA).12 Egypt was one of the ﬁrst signatories of the NPT, which it ratiﬁed in 1981 shortly after its conclusion of the 1979 peace treaty with Israel.13 Other Arab states, as well as Iran, followed suit, and by 1997, all Arab states had joined the Treaty.14 Today, 190 countries are members of the NPT, with only India, Pakistan, and Israel (presumably all nuclear powers) never having joined it.15 North Korea was previously a member of the NPT, but announced its withdrawal in 2003.16 Nevertheless, in the decades since it came into force, the NPT has become the most widely adhered to arms control regime in history and the bedrock of disarmament efforts.17 In addition, numerous resolutions adopted at subsequent NPT Review Conferences and in the U.N. General Assem- bly (UNGA) have expressed the conviction that internationally recognized NWFZs, including a possible Middle East zone, are a useful instrument for complementing and strengthening the NPT’s global non-proliferation regime and contributing toward the realization of disarmament objectives at the regional level.18 The 1999 U.N. Disarma-

8. Schenck & Youmans, supra note 6, at 408; see NPT, supra note 5, art. I. 9. NPT, supra note 5, art. I. 10. See id. art. VI. 11. See id. art. II. 12. See id. art. III. 13. Patricia M. Lewis, A Middle East free of nuclear weapons: possible, probable, or pipe-dream?, 89 ROYAL INST. OF INT’L AFFAIRS 433, 437 (Mar. 2013) [hereinafter Lewis 2013]. 14. Id. 15. See Treaty on the Non-Proliferation of Nuclear Weapons: Status of the Treaty, U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://disarmament.un.org/treaties/t/npt (last visited Mar. 14, 2014). 16. Chronology of U.S.-North Korean Nuclear and Missile Diplomacy,ARMS CONTROL ASS’N (Feb. 2014), https://www.armscontrol.org/factsheets/dprkchron (last visited Sept. 26, 2014). 17. Schenck & Youmans, supra note 6, at 409. 18. See, e.g., 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, May 3-28, 2010, Final Document, ¶ 98, U.N. Doc. NPT/CONF.2010/50 (Vol. I), available at http://www.un.org/ga/search/view_doc.asp?symbolϭNPT/CONF.2010/50%20 (VOL.I) [hereinafter 2010 NPT Review Conference] (stating that the establishment of NWFZs “enhances global and regional peace and security, strengthens the nuclear non-proliferation regime and contributes towards realizing the objectives of nuclear disarmament”); 1999 Disarma- ment Commission Report, supra note 2, at Annex I, ¶¶ 6-13, 19, 33, 42; 1995 Review and Extension

2014] 319 GEORGETOWN JOURNAL OF INTERNATIONAL LAW ment Commission’s report on guidelines for establishing NWFZs, which is often cited in proposals for future zones, ﬁrmly states this principle:

[N]uclear-weapon-free zones have made and continue to make, as their objective, an important contribution to the strengthening of the international nuclear non-proliferation regime, to the achievement of nuclear disarmament and to global efforts aimed at achieving the ultimate objective of eliminating nuclear weapons and, more broadly speaking, general and complete disarmament under strict and effective international control.19

For a future WMDFZ, besides the NPT, the other two relevant treaties are the Biological Weapons Convention of 1972 (BWC)20 and the Chemical Weapons Convention of 1992 (CWC).21 The BWC pro- scribes parties from developing, producing, stockpiling, acquiring, or transferring biological agents or toxins and weapons and means of delivery, as well as commits parties to destroying or converting for peaceful purposes biological weapons prior to joining the treaty.22 Although the BWC currently has 168 state parties, including most Middle Eastern states, Israel has never signed the treaty, and Egypt and Syria have only signed, but not ratiﬁed the treaty.23 Meanwhile, the CWC bans parties from the development, production, acquisition,

Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Apr. 17- May 12, 1995, Resolution on the Middle East, U.N. Doc. NPT/CONF.1995/32 (Part I), Annex, available at www.un.org/disarmament/WMD/Nuclear/1995-NPT/pdf/Resolution_MiddleEast. pdf [hereinafter 1995 NPT Review Conference]; Comprehensive study of the question of nuclear-weapon-free zones in all its aspects, G.A. Res. 3472 (XXX)(B), U.N. Doc. A/RES/3472 (Dec. 11, 1975) (stating that nuclear weapons free zones are “one of the most effective means for preventing the proliferation...ofnuclear weapons and for contributing to the elimination of the danger of a nuclear holocaust.”). 19. 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶ 6. 20. Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction art. 2, opened for signature Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163 (entered into force Mar. 26, 1975) [hereinafter BWC]. 21. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction art. I(2), opened for signature Sept. 3, 1992, 1974 U.N.T.S. 45, 32 I.L.M. 800 [hereinafter CWC]. 22. BWC, supra note 20, arts. I-III. 23. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction: Status of the Treaty, U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://disarmament.un.org/treaties/t/bwc (last visited Mar. 18, 2014).

320 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST stockpiling, retention, transfer or use of chemical weapons, and commits parties to destroy all chemical weapons and production facilities.24 Currently, 190 states are parties to the convention, representing ninety- eight percent of the global population.25 Syria was the most recent country to accede to the treaty in September 2013, when it did so under pressure from the United States and Russia in the aftermath of its alleged chemical weapons use.26 Only two states have signed but not ratified the CWC (Israel and Myanmar), and four states have neither signed nor ratified (Angola, Egypt, North Korea, and South Sudan).27 Taken together, the NPT, BWC, and CWC should be considered building blocks for a future Middle East WMDFZ by regional states. However, because not all Middle Eastern states have ratified or acceded to the treaties and conventions, as discussed later in this Note, securing their status as parties has been, and will continue to be, a major challenge to overcome for the establishment of a zone. Similarly, although it is unclear if or when the NPT, BWC, and CWC will achieve universal membership in the Middle East, the world community has also recognized that each of the three treaties are instrumental for ridding the region of WMD.28

24. CWC, supra note 21, art. I. 25. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction: Status of the Treaty, U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://disarmament.un.org/treaties/t/cwc (last visited Mar. 18, 2014); Status of Participation, ORG. FOR THE PROHIBITION OF CHEMICAL WEAPONS, https://www.opcw.org/about-opcw/member- states/statusofparticipation/ (last visited Mar. 18, 2014). 26. Timeline of Syrian Chemical Weapons Activity, 2012-2014,ARMS CONTROL ASS’N (Mar. 2014), https://www.armscontrol.org/factsheets/Timeline-of-Syrian-Chemical-Weapons-Activity. 27. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction: Status of the Treaty, supra note 23. 28. See 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶¶ 13, 19, 45 (noting in paragraph 45 that the “[t]he international community should continue to promote the creation of nuclear-weapon-free zones around the globe in an effort towards achieving the ultimate goal of freeing the entire world from all nuclear weapons as well as other weapons of mass destruction”). Chemical and biological weapons use may already also be proscribed by customary international law based on the 1925 Geneva Protocol which prohibited “the use in war of asphyxiating, poisonous, or other gases and of all analogues liquids, materials or devices” and “bacteriological methods of warfare.” Seth Brugger, International Law, Terrorism, and Weapons of Mass Destruction: Finding and Filling the Gaps,57RUTGERS L. REV. 803, 812-13 (2005) (citing Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, opened for signature June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65). Although the Geneva Protocol originally only applied to “contracting parties,” the UNGA recognized in 1969 that the Protocol is part of customary international law and is thus binding on non-

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III. THE EXISTING NUCLEAR WEAPONS FREE ZONE REGIME Five territory-based NWFZs are currently in force, which encompass 112 member countries and, when including Antarctica, cover virtually the entire Southern Hemisphere.29 The U.N. has generally defined the basic obligations of NWFZs as calling for the “effective prohibition of the development, manufacturing, control, possession, testing, stationing or transporting by the State parties to the treaty” of nuclear weapons within the regional zone, including by external nuclear weapon states.30 The catalyst for the development of the NWFZ concept occurred in 1957—just twelve years after nuclear bombs were dropped on Hiro- shima and Nagasaki—when Polish foreign minister, Adam Rapacki, called for the establishment of a Central European NWFZ to cover Czechoslovakia, both German republics, and Poland.31 The United States and the United Kingdom, however, ultimately rejected the “Rapacki Plan” largely because they intended to deploy nuclear weapons in Central Europe to deter opposing forces in the area.32 As the Cold War intensified in the later 1950s and early 1960s (prior to the NPT), other NWFZ proposals were advanced in Africa, East Asia, and Europe, but were ultimately blocked by NWS, which insisted on regional stationing of nuclear weapons for their deterrent needs.33 Despite these setbacks, the first NWFZ to be established was at the urging of the United States in the 1959 Antarctic Treaty,34 which created a nuclear weapon free and demilitarized zone by prohibiting

signatories. G.A. Res. 2603(A), U.N. GAOR, 24th Sess., Supp. No. 30, U.N. Doc. A/7630, at 226 (Dec. 16, 1969). 29. FORADORI &MALIN 2012, supra note 2, at 42; see Nuclear-Weapon-Free Areas: Demarcation of nuclear-weapon-free zones, nuclear-weapon-free status and nuclear-weapon-free geographical regions, U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://www.un.org/disarmament/WMD/Nuclear/pdf/NWFZ- postcard-2010.pdf (last visited Mar. 19, 2014); see generally Jonathan Granoff, It’s Time to Make the Middle East WMD-Free,WORLD POLICY INST. (Sept. 12, 2013), http://www.worldpolicy.org/blog/ 2013/09/12/its-time-make-middle-east-wmd-free. For additional overviews and speciﬁc studies of current NWFZs, see DISARMAMENT FORUM NO.2:NUCLEAR-WEAPON-FREE-ZONES 3-27 (UNIDIR ed., 2011); U.N. INST. FOR DISARMAMENT RESEARCH,NUCLEAR-WEAPON-FREE ZONES IN THE 21ST CENTURY (Pericles Gasparini Alves & Daiana Cipollone eds., 1997). 30. 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶ 33. 31. Michael Hamel-Green, Peeling the Orange: Regional Paths to a Nuclear-Weapon-Free World, in DISARMAMENT FORUM NO.2:NUCLEAR-WEAPON-FREE-ZONES 3, 4 (UNIDIR ed., 2011) [hereinafter Hamel-Green 2011]. 32. Id. 33. Id. at 5. 34. The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 5778.

322 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST military bases, maneuvers, and weapons testing (Article I), and by banning nuclear explosions and disposal of radioactive waste (Article V).35 The Antarctic Treaty was followed in short order by the first regional NWFZ in a densely populated area—the 1967 Latin American and Caribbean NWFZ (the Treaty of Tlatelolco).36 Signed and ratified today (after years of negotiations) by all thirty-three countries in the region, the Latin American zone was originally triggered by, and negotiated in the aftermath of, the 1962 Cuban missile crisis, which spurred an effort by regional parties to promote complete denuclearization.37 The main features of the treaty include a central ban on nuclear weapons, whether developed or acquired by zone members themselves or introduced by NWS;38 an inspection and verification system, including through a regional compliance agency;39 and security assurances by NWS not to use or threaten to use nuclear weapons against states in the zone.40 In October 2002, the zone completed its coverage of the Latin American region when Cuba, the only state that had not ratified, deposited its instruments of ratification.41 Finally, the Tlatelolco Treaty is particularly noteworthy in that it includes two long-time regional rivals, Argentina and Brazil, both of which were, at the time of the treaty’s signature, ruled by military governments that sought to acquire nuclear weapons capabilities.42 The next NWFZ established was in the South Pacific with the 1985

35. Id. arts. I, V; see Hamel-Green 2011, supra note 31, at 5. 36. Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean, opened for signature Feb. 14, 1967, 6 I.L.M. 521 [hereinafter Treaty of Tlatelolco]. 37. Hamel-Green 2011, supra note 31, at 5; MICHAEL HAMEL-GREEN, U.N. INST. FOR DISARMA- MENT RESEARCH,REGIONAL INITIATIVES ON NUCLEAR- AND WMD-FREE ZONES 5 (2005) [hereinafter HAMEL-GREEN 2005]. 38. Treaty of Tlatelolco, supra note 36, art. 1. 39. Treaty of Tlatelolco, supra note 36, arts. 7, 13, 14, 16. 40. Treaty of Tlatelolco, supra note 36, Additional Protocol II, art. 3. 41. Treaty for the Prohibition of Nuclear Weapons in the Caribbean (LANWFZ) (Tlatelolco Treaty), NTI, http://www.nti.org/treaties-and-regimes/treaty-prohibition-nuclear-weapons-latin-america- and-caribbean-lanwfz-tlatelolco-treaty/ (last visited Mar. 13, 2014). 42. FORADORI &MALIN 2012, supra note 2, at 42; Hamel-Green 2011, supra note 31, at 5. Neither Brazil nor Argentina were initially willing to permit the treaty to enter force for them, however they eventually did so after civilian governments came to power in both countries. HAMEL-GREEN 2005, supra note 37, at 5. Today, Brazil and Argentina still have large nuclear power industries, however their potential capacity to develop nuclear weapons has been stymied by their adherence to the NWFZ. Id. at 9.

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Treaty of Rarotonga.43 Entering into force in 1986, the Treaty of Rarotonga includes all thirteen members of the Pacific Islands Fo- rum.44 It extends from the west coast of Australia to the boundary of the Latin American NWFZ, and encompasses an extensive part of the South Pacific from the equator southward to the Antarctic zone.45 The South Pacific region’s interest in denuclearization originated with the conflicts in Cambodia, Laos, and Vietnam of the late 1960s and early 1970s as well as out of concern by Fiji, New Zealand, and Papua New Guinea over the many nuclear tests conducted in the South Pacific by the United States, the United Kingdom, and France.46 Along with agreeing to refrain from the same categories of nuclear activity as in the Treaty of Tlatelolco,47 parties to the Treaty of Raro- tonga also have agreed to prohibit nuclear testing or dumping of radioactive waste anywhere in the zone, which includes the territorial sea of the zonal parties.48 The treaty also includes mechanisms for verification and compliance by applications of IAEA safeguards, exchanges of reports, and a regional committee, as well as three additional protocols for NWS and external parties, discussed in detail later.49 Ten years after the Treaty of Raratongo, the founding members of the Association of Southeast Asian Nations (ASEAN) entered into their own NWFZ via the 1995 Treaty of Bangkok.50 Although the zone had been discussed in the early 1970s, an unfavorable political environment in the region hampered progress, and it was not until the United States and the Soviet Union closed their military bases (including nuclear weapons stations) in the Philippines and Vietnam that implementation

43. South Pacific Nuclear Free Zone Treaty, Aug. 6, 1985, 24 I.L.M. 1442 [hereinafter Treaty of Rarotonga]. For a detailed assessment of each provision of the Rarotonga treaty, see the U.S. Department of State’s article-by-article analysis. South Pacific Nuclear Free Zone Treaty and Protocols, U.S. DEP’TOFSTATE,BUREAU OF INT’L SEC. AND NONPROLIFERATION, http://www.state.gov/t/isn/ 5189.htm (last visited Mar. 18, 2014). 44. FORADORI &MALIN 2012, supra note 2, at 42. Although the region did not have any obvious nuclear rivalries, as was the case in Latin America, the zone includes Australia and New Zealand, which today have the scientific and technical expertise to develop nuclear weapons. HAMEL-GREEN 2005, supra note 37, at 5. 45. FORADORI &MALIN 2012, supra note 2, at 42. 46. HAMEL-GREEN 2005, supra note 37, at 5-6; FORADORI &MALIN 2012, supra note 2, at 42. 47. See Treaty of Rarotonga, supra note 43, arts. 3-5. 48. See Treaty of Rarotonga, supra note 43, arts. 6-7. 49. Treaty of Rarotonga, supra note 43, arts. 8-10, Annex 2, Annex 4, Protocols 1-3. 50. Treaty on the Southeast Asia Nuclear Weapon-Free Zone, opened for signature Dec. 15, 1995, 35 I.L.M. 635 (entered into force Mar. 27, 1997) [hereinafter Treaty of Bangkok].

324 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST of the zone became politically feasible.51 The treaty, which entered into force in 1997, today includes all ten ASEAN countries52 and generally contains the same denuclearization, verification, and security assurance provisions as the Treaties of Rarotonga and Tlatelolco.53 The Southeast Asian zone is different, however, in that it covers the exclusive economic zones and continental shelves of named state parties to the treaty,54 something that has rendered most of the NWS unwilling to sign or ratify the treaty’s additional negative security protocols.55 The largest of all NWFZs in terms of state membership is the African zone, which was established through the Treaty of Pelindaba.56 Opened for signature in 1996, the treaty entered into force in 2009 and now has thirty-seven ratified parties, including all African Union members and island states.57 Like the South Pacific NWFZ, the achievement of a zone on the African continent was the result of a decades-long push for denuclearization that originated in the 1960s with protests over French nuclear testing in the Sahara.58 Concerns had also grown over South Africa’s nuclear program, which by the early 1990s had produced a stockpile of six nuclear weapons.59 However, the end of the apartheid regime in South Africa allowed a breakthrough that culminated in the

51. Southeast Asian Nuclear-Weapon-Free-Zone (SEANWFZ) Treaty (Bangkok Treaty), NTI, http:// www.nti.org/treaties-and-regimes/southeast-asian-nuclear-weapon-free-zone-seanwfz-treaty-bangkok- treaty/ (last visited Mar. 14, 2014); FORADORI &MALIN 2012, supra note 2, at 42; HAMEL-GREEN 2011, supra note 31, at 7; HAMEL-GREEN 2005, supra note 37, at 6-7. 52. South Pacific Nuclear Free Zone Treaty: Status of Treaty, U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://disarmament.un.org/treaties/t/rarotonga (last visited Mar. 19, 2014). 53. See generally Treaty of Bangkok, supra note 50. 54. Treaty of Bangkok, supra note 50, arts. 1-2. 55. With the exception of China, the NWS have refused to sign the protocol to the South East Asian NWFZ because they object to (1) the inclusion of continental shelves and the exclusive economic zones (which are not clearly defined in the South China Sea); (2) the restriction not to use nuclear weapons within the zone, or from within the zone against targets outside the zone; (3) the restriction on the passage of nuclear-powered ships through the zone in relation to the notion of the high seas as embodied in the U.N. Convention on the Law of the Sea; and (4) the ambiguity as to the permissibility of port calls by ships that may be holding nuclear weapons. Southeast Asian Nuclear-Weapon-Free-Zone (SEANWFZ) Treaty (Bangkok Treaty), supra note 51; HAMEL- GREEN 2005, supra note 37, at 7. 56. African Nuclear Weapons Free Zone Treaty, opened for signature Apr. 11, 1996, 35 I.L.M. 698 (entered into force July 15, 2009) [hereinafter Treaty of Pelindaba]. 57. African Nuclear Weapon Free Zone Treaty (Treaty of Pelindaba), U.N. OFFICE FOR DISARMAMENT AFFAIRS, http://disarmament.un.org/treaties/t/pelindaba (last visited Mar. 19, 2014). Note that ratified parties to the treaty include Algeria, Libya, and Tunisia, while Egypt is only a signatory, and Morocco has not signed at all. Id. 58. HAMEL-GREEN 2011, supra note 31, at 7; FORADORI &MALIN 2012, supra note 2, at 42. 59. HAMEL-GREEN 2011, supra note 31, at 7.

2014] 325 GEORGETOWN JOURNAL OF INTERNATIONAL LAW dismantling of the country’s nuclear program in 1991 and the opening of the Treaty of Pelindaba for signature five years later.60 Along with familiar denuclearization obligations,61 regional verification mechanisms (including the creation of a regional verification and compliance organization),62 and additional protocols,63 the African NWFZ is unique in that it also contains provisions for the dismantling of existing nuclear-weapon-related facilities64 and against armed attacks on nuclear installations in the region.65 The most recent NWFZ is that of Central Asia, established through the Treaty of Semipalatinsk, which opened for signature in 2006.66 Entering into force in 2009 and comprising five Central Asian states (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan), the treaty is the first and only zone located entirely in the Northern Hemisphere. Like its predecessor NWFZs, the Central Asian treaty was the product of a decade of negotiations between the five state parties, all of whom had gained independence following the collapse of the Soviet Union.67 The zone is thus of strategic noteworthiness given that the region was once home to thousands of Soviet tactical and strategic nuclear weapons.68 As with the other zone treaties, the Treaty of Semipalatinsk prohibits the acquisition, possession, and stationing

60. FORADORI &MALIN 2012, supra note 2, at 42. 61. See Treaty of Pelindaba, supra note 56, arts. 3-5, 7. 62. See Treaty of Pelindaba, supra note 56, arts. 12-13, Annex III. 63. Treaty of Pelindaba, supra note 56, Protocols 1-3. 64. Treaty of Pelindaba, supra note 56, art. 6. Under this provision “Each Party undertakes: (a) To declare any capability for the manufacture of nuclear explosive devices; (b) To dismantle and destroy any nuclear explosive device that it has manufactured prior to the coming into force of this Treaty; (c) To destroy facilities for the manufacture of nuclear explosive devices or, where possible, to convert them to peaceful uses; (d) To permit the [IAEA] and the [African Commis- sion on Nuclear Energy]...toverify the processes of dismantling and destruction of the nuclear explosive devices, as well as the destruction or conversion of the facilities for their production.” Id. 65. Treaty of Pelindaba, supra note 56, art. 11. For a more detailed assessment of each provision of the Pelindaba treaty, see the U.S. Department of State’s article-by-article analysis. African Nuclear-Weapon-Free Zone Treaty and Protocols, U.S. DEP’TOFSTATE,BUREAU OF INT’L SEC.& NONPROLIFERATION, http://www.state.gov/t/isn/4699.htm (last visited Mar. 18, 2014); see also Noe¨l Stott, The Treaty of Pelindaba: towards the full implementation of the African NWFZ Treaty, in DISARMAMENT FORUM NO.2:NUCLEAR-WEAPON-FREE-ZONES 15-26 (UNIDIR ed., 2011). 66. Treaty on a Nuclear-Weapon Free Zone in Central Asia, opened for signature Sept. 8, 2006, (entered into force Mar. 21, 2009), available at http://disarmament.un.org/treaties/t/canwfz/ text [hereinafter Treaty of Semipalatinsk]. 67. HAMEL-GREEN 2011, supra note 31, at 8. 68. See U.N. GAOR, 57th Sess., 2nd comm. mtg. at 3, U.N. Doc. A/C. 1/57/PV.2 (Sept. 30, 2002); FORADORI &MALIN 2012, supra note 2, at 42; HAMEL-GREEN 2011, supra note 31, at 8.

326 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST of nuclear weapons in the zone.69 However, the treaty is the first to require its members to abide by the basic obligations of the 1996 Comprehensive Test Ban Treaty (CTBT).70 Besides the NWFZs described above, other geographic arrangements ban nuclear weapons or all WMD from outer space and celestial bodies (1967 Outer Space Treaty), the seabed and ocean floor (1971 Seabed Treaty), and the moon (1979 Moon Agreement). In 1992, Mongolia declared itself a single-state NWFZ,71 ultimately gaining international recognition as such in 1998.72 Several countries, provinces, and cities also have policies or local laws prohibiting nuclear weapons in their territory, however these laws are not recognized internationally.73 Although the central legal provisions of regional NWFZ treaties are perhaps legally redundant with those of the NPT, all of the aforementioned treaties have strengthened the objectives of the NPT by providing confidence-building measures (CBMs), reinforcing normative and legal state commitments to denuclearization, and expanding the number of geographical regions free of nuclear weapons.74 In addition, the NWFZs, through their additional protocols, have created perhaps the only means of attaining legally binding guarantees by the NWS for their use of nuclear weapons in regard to NNWS: each of the annex protocols contains legally binding “negative security assurances,” which prohibit non-regional NWS from using or threatening to use nuclear weapons against parties to the treaties. The problem is that not all NPT NWS have ratified these protocols. Only the protocol of the Latin American Treaty of Tlatelolco was signed and ratified by all NWS, whereas the protocols of the NWFZs of the South Pacific, South East Asia, Africa, and Central Asia have yet to attain NWS agreement.75 The

69. See Treaty of Semipalatinsk, supra note 66, art. 3. 70. See Treaty of Semipalatinsk, supra note 66, art. 5; Comprehensive Nuclear Test Ban Treaty art. 1, Sept. 24, 1996, 35 I.L.M. 1439; Central Asian Nuclear-Weapon-Free Zone Treaty (Treaty of Semipalatinsk),FED’NOFAMERICAN SCIENTISTS, http://www.fas.org/programs/ssp/nukes/Arms Control_NEW/nonproliferation/NFZ/NP-NFZ-CA.html (last visited Apr. 9, 2014) (expressing concern that under the Commonwealth of Independent States Collective Security Treaty, Russia could still possibly deploy nuclear weapons in Central Asia). 71. U.N. GAOR, 13th Sess., U.N. Doc. A/47/PV.13 (Oct. 6, 1992). 72. Resolutions adopted by the General Assembly: Mongolia’s international security and nuclear-weapon-free status, G.A. Res. 53/77 D, U.N. Doc. A/RES/53/77 D (Jan. 12, 1999). 73. FORADORI &MALIN 2012, supra note 2, at 42. 74. HAMEL-GREEN 2011, supra note 31, at 9-10. 75. For example, all NWS, except the United States, have ratiﬁed Protocol I of the Treaty of Pelindaba, which calls on the NWS not to use or threaten to use a nuclear explosive device against any party to the treaty and any territory within the zone. See Treaty of Pelindaba, supra note 56,

2014] 327 GEORGETOWN JOURNAL OF INTERNATIONAL LAW major obstacles to ratification of the protocols by the NWS seem to be related to freedom of the seas, transit rights, the presence of bases in the treaty area, and potential conflict with previous security arrangements.76 That said, in May 2011, President Obama sent the additional protocols of the African and Southeast Asian treaties to the U.S. Senate for its advice and consent on ratification.77 However, the Senate has yet to sign off.

IV. THE HISTORY OF MIDDLE EAST ZONE PROPOSALS Despite the achievement of the existing NWFZs, the “holy grail” of international arms control and disarmament diplomacy continues to be the establishment of a WMDFZ in the Middle East.78 This is largely true given that the Middle East is the only area in the world where WMD have been used in military combat, resulting in mass casualties, since the World Wars.79 In addition, nearly every major post-World- War-II military attack on suspected WMD facilities has taken place in

Protocol I. The United States has also signed, but not ratified Protocol II of the Treaty of Rarotonga, which also requires negative security assurances by NWS. See Treaty of Rarotonga, supra note 43, Protocol II. Most recently, all NWS signed the Protocol to the Treaty of Semi- palatinsk. United States Signs Protocol to the Central Asian Nuclear-Weapon-Free Zone Treaty, U.S. DEP’T OF STATE (May 6, 2014), http://www.state.gov/r/pa/prs/ps/2014/05/225681.htm. 76. FORADORI &MALIN 2012, supra note 2, at 43-44; ROBERTA MULAS,NUCLEAR WEAPON FREE ZONES AND THE NUCLEAR POWERS:LESSONS FOR A WMD/DVS FREE ZONE IN THE MIDDLE EAST,POLICY BRIEF, No. 5 (Frankfurt Peace Research Institute, Frankfurt), Dec. 2011, at 4; HAMEL-GREEN 2005, supra note 37, at 7. For example, one such reason for U.S. hesitancy in ratifying additional protocols is that the U.N. Convention on the Law of the Sea (UNCLOS) and customary law assure innocent passage through territorial seas, which could conflict with a treaty that prohibits transit of warships carrying nuclear weapons through the zonal region. Arthur M. Rieman, Creating a Nuclear Free Zone Treaty that is True to Its Name: The Nuclear Free Zone Concept and a Model Treaty, 18 DENV.J.INT’L L.&POL’Y 209, 214 (1989); see United Nations Convention on the Law of the Sea arts. 17-18, Dec. 10, 1982, 1833 U.N.T.S. 397, available at https://treaties.un.org/doc/Publication/ UNTS/Volume%201833/volume-1833-A-31363-English.pdf [hereinafter UNCLOS]. 77. Press Release, The White House, Message on African Nuclear Weapon Free Zone Treaty (May 2, 2011), available at http://www.whitehouse.gov/sites/default/files/2011african_msg_ rel.pdf; Press Release, The White House, Message on South Pacific Nuclear Weapon Free Zone Treaty (May 2, 2011), available at http://www.whitehouse.gov/sites/default/files/2011sptreaty_ msg_rel.pdf. 78. See Patricia Lewis & William C. Potter, The long journey toward a WMD-free Middle East,ARMS CONTROL TODAY, Sept. 2011, at 8 (“One of the most sought-after prizes in international disarmament and nonproliferation diplomacy is a Middle East free of weapons of mass destruction (WMD).”). 79. Jacob Greene, Rethinking a WMD-free Middle East: Start with chemical weapons,BULL. OF THE ATOMIC SCIENTISTS (Nov. 30, 2013), http://thebulletin.org/rethinking-wmd-free-middle-east-start- chemical-weapons; FORADORI &MALIN 2012, supra note 2, at 10; Lewis & Potter, supra note 78, at 8.

328 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST the Middle East.80 In light of this turbulent history (which continues today), a WMDFZ in the Middle East has long remained a persistent goal of both the international non-proliferation community as well as the regional states themselves. However, much like the region’s own troubled past, the history of the Middle East’s zone proposal has not been easy.

A. The Development of the Middle East Zone Proposal The concept of a zone in the Middle East was first conceived in 1962 by a group of Israeli intellectuals, the Committee for Denuclearization of the Middle East.81 In proposing a NWFZ, the committee urged the U.N. to intervene in the region to prevent military nuclear production.82 The next year, Egypt first floated the idea of establishing a Middle East NWFZ at the UNGA.83 However the idea was not formally put to a vote until 1974, when, based on improving Arab-Israeli relations and the fear invoked by the Indian nuclear weapon test that year, Egypt and Iran (then under Shah Mohammed Reza Shah Pahlavi) co-sponsored a draft resolution in the UNGA that was ultimately adopted as Resolution 3263.84 The resolution, which endorsed the “establishment of a nuclear weapon free zone in the region of the

80. These include the Iranian strike against nuclear facilities in Iraq in 1981; Israel’s strike against Iraq’s Osirak nuclear reactor in 1981; several Iraqi attacks against Iran from 1984 to 1987; U.S. and allied forces attacks against Iraq in 1991, 1993, 1998, and 2003; and Israel’s air strike against Syria’s suspected Deir ez-Zor nuclear site in 2007. Indeed, the entire U.S. invasion of Iraq in 2003 was waged on the premise of removing WMD from Iraq. 81. Lewis 2013, supra note 13, at 435; Lewis & Potter, supra note 78, at 8. 82. Lewis 2013, supra note 13, at 435. The Israeli committee was formed in the hope of forestalling Israel’s acquisition of nuclear weapons, however, it was disbanded in the wake of the Six Day War of 1967. Id. 83. Lewis 2013, supra note 13, at 435; Mohammed Kadry Said, Middle East weapons of mass destruction free zone: regional security and non-proliferation issues, in BUILDING A WEAPONS OF MASS DESTRUCTION FREE ZONE IN THE MIDDLE EAST:GLOBAL NON-PROLIFERATION REGIMES AND REGIONAL EXPERIENCES 123, 127 (UNIDIR ed., 2004). 84. Establishment of a nuclear weapon free zone in the region of the Middle East, G.A. Res. 3263 (XXIX), U.N. Doc. A/RES/3263 (Dec. 9, 1974) available at http://www.un.org/en/ga/ search/view_doc.asp?symbolϭA/RES/3263(XXIX)&LangϭE&AreaϭRESOLUTION; Kathleen Teltch, Iran asks UN action to keep region free of nuclear arms, N.Y. TIMES, at A7, July 13, 1974, http://www.iranaffairs.com/.shared/image.html?/photos/uncategorized/2007/08/20/iran nuclearfreezone.jpg; see WMD-Free Middle East Proposal at a Glance,ARMS CONTROL ASS’N (July 2013), http://www.armscontrol.org/factsheets/mewmdfz; Lewis 2013, supra note 13, at 436; Nabil Fahmy & Patricia Lewis, Possible Elements of an NWFZ Treaty in the Middle East,2DISARMAMENT FORUM 39, 39 (2011) [hereinafter Fahmy & Lewis 2011].

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Middle East,”85 was adopted by a vote of 128 to zero, with only Israel and Burma abstaining.86 Since then, a version of the Egyptian-Iranian resolution of 1974 has been passed by the UNGA without a vote almost every year and has been frequently endorsed in resolutions by the U.N. Security Council (UNSC).87 Recalling the NPT and the 1967 Treaty of Tlatelolco, the current UNGA resolution calls upon all states in the region to immediately accede to the NPT; place all of their nuclear activities under IAEA safeguards; and, pending the establishment of the zone, not “develop, produce, test or otherwise acquire nuclear weapons or permit the stationing on their territories, or territories under their control, of nuclear weapons or nuclear explosive devices.”88 In 1990, Egyptian President Hosni Mubarak suggested that the proposal for a Middle East NWFZ be expanded to include all WMD—an idea that could be pursued in parallel with the earlier proposal.89 Mubarak judged that a more comprehensive approach to disarmament could be attractive to the full range of Middle East states, as long as a bargain could be struck between the Arab states and Israel.90 Since then, Egypt has aggressively pursued the WMDFZ initiative at NPT review conferences held every ﬁve years;91 however, as this Section discusses, the proposal has yet to produce a successful result. In 1991, in the wake of Iraq’s use of chemical weapons against Iran between 1980 and 1988 and against the Kurds during the Gulf War, the UNSC passed Resolution 687, which noted that Iraq was required to take “steps towards the goal of establishing in the Middle East a zone

85. G.A. Res. 3263 (XXIX), supra note 84. 86. U.N. BIBLIOGRAPHIC INFO.SYS., http://unbisnet.un.org/ (last visited Apr. 9, 2014). Israel abstained from voting on such UNGA resolutions from 1974 to 1979 because it opposed some of the wording and claimed that the modalities proposed by the resolutions’ sponsors were not practical and did not require negotiation between all states concerned. NAMIRA NEGM,TRANSFER OF NUCLEAR TECHNOLOGY UNDER INTERNATIONAL LAW 264 (2009). 87. See e.g., Resolution on the establishment of a nuclear-weapon-free zone in the region of the Middle East, G.A. Res. 68/27, U.N. Doc. A/RES/68/27 (Dec. 5, 2013). After the Egypt-Israel peace agreement of 1979, Israel voiced its support for the NWFZ idea, meaning that at least since 1980, there has been a consensus, in principle, among Middle East states that “the establishment of a nuclear-weapon-free zone in the region of the Middle East would greatly enhance international peace and security.” Lewis 2013, supra note 13, at 436; WMD-Free Middle East Proposal at a Glance, supra note 84. 88. G.A. Res. 68/27, ¶¶ 1, 2, 6, U.N. Doc. A/RES/68/27 (Dec. 5, 2013). 89. WMD-Free Middle East Proposal at a Glance, supra note 84; Lewis 2013, supra note 13, at 437; HAMEL-GREEN 2005, supra note 37, at 17. 90. Fahmy & Lewis 2011, supra note 84, at 39. 91. See Egypt: Nuclear, NTI, http://www.nti.org/country-proﬁles/egypt/nuclear/ (last visited Apr. 4, 2014).

330 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST free from WMD and all missiles for their delivery and the objective of a global ban on chemical weapons.”92 That same year, the Middle East Arms Control and Regional Security (ACRS) working group was established—a multilateral regional body formed as part of the Arab-Israeli multilateral peace process in Madrid.93 The ACRS, which met between 1992 and 1995, was set to host discussions on a WMDFZ, though the working group did not include Iran and Iraq as parties.94 In the context of the ACRS talks, even Israel reportedly agreed to consider a NWFZ two years after peace agreements had been signed with all of its neighbors.95 However, the ACRS talks collapsed in 1995 over disagreements about the agenda and sequencing of wider peace process steps, and the ACRS has been indeﬁnitely on hold ever since.96 That year was not marked by disappointment alone. At the 1995 NPT Review and Extension Conference, the three NPT depository states (the Russian Federation, the United Kingdom, and the United States) co-sponsored a carefully crafted Resolution on the Middle East, later adopted by all NPT parties. The resolution endorsed a Middle East WMDFZ and called on states to “take practical steps” to make progress in “the establishment of an effectively veriﬁable Middle East zone free

92. S.C. Res. 687, ¶ 14, U.N. Doc. S/RES/687 (Apr. 3, 1991). The year 1991 also saw the U.N. Secretary General release a “Study on Effective and Verifiable Measures which Would Facilitate the Establishment of a NWFZ in the Middle East” outlining, among other things, a number of confidence building steps that could contribute to the establishment of the zone. U.N. Office for Disarmament Affairs, Effective and Verifiable Measures Which Would Facilitate the Establishment of Nuclear-weapon-free Zone in the Middle East: Rep. of the Secretary-General, U.N. Doc. A/45/435 (1991), available at http://www.un.org/disarmament/HomePage/ODAPublications/DisarmamentStudy- Series/PDF/SS-22.pdf [hereinafter UNODA 1991]. In addition, the IAEA General Conference passed resolution on “the Application of IAEA safeguards in the Middle East,” which reiterated the need for all Middle East states to accept all IAEA safeguards as “an important confidence- building measure” and as a necessary step toward the establishment of a NWFZ in the region.” IAEA, Application of IAEA Safeguards in the Middle East, ¶ 1, Gen. Conf. Res. 571 IAEA Doc. GC (XXXV)/RES/571 (Sept. 20, 1991). The resolution has since been passed annually without objections. See generally IAEA, Application of IAEA Safeguards in the Middle East, Gen. Conf. Res. 15, IAEA Doc. GC (57)/RES/15 (Sept. 2013), available at http://www.iaea.org/About/Policy/GC/ GC57/GC57Resolutions/English/gc57res-15_en.pdf. 93. Lewis 2013, supra note 13, at 438; Chen Kane, The role of civil society in promoting a WMDFZ in the Middle East, in DISARMAMENT FORUM NO.2:NUCLEAR-WEAPON-FREE-ZONES 51 (UNIDIR ed., 2011) [hereinafter CHEN KANE 2011]. 94. WMD-Free Middle East Proposal at a Glance, supra note 84. 95. Id. 96. Chen Kane 2011, supra note 93, at 52. By 1995, the ACRS talks were put on hold indefinitely in light of a stalemate over the peace process, the 1995 Review and Extension Conference on the Treaty on the Non-Proliferation of Nuclear Weapons, and the ongoing disagreement between Israel and Egypt over the agenda for discussing the nuclear issue. Id.

2014] 331 GEORGETOWN JOURNAL OF INTERNATIONAL LAW of WMD, nuclear, chemical and biological, and their delivery systems.”97 The resolution set forth the following objectives: (1) creation of a Middle East NWFZ; (2) accession to the NPT of any state in the region yet to do so; and (3) application of full scope IAEA safeguards to all nuclear facilities in the Middle East.98 In addition, the 1995 resolution called on all NPT parties, especially NWS to “extend their cooperation and to exert their utmost efforts with a view to ensuring the early establishment by regional parties of a Middle East zone free of nuclear and all other WMD and their delivery systems.”99 Thus, from then on, the notion of either a NWFZ or a WMDFZ in the Middle East became intrinsically tied to the goals of the NPT regime.100 No further substantive progress was made on a Middle East zone proposal at the 2000 and 2005 NPT Review Conferences besides en- dorsing the goals of the 1995 resolution.101 However, this changed at the 2010 NPT Review Conference, where over 190 state parties agreed by consensus to a series of practical steps toward implementing the 1995 NPT Review Conference’s Middle East resolution.102 The ﬁnal report called for the U.N. Secretary-General, the co-sponsors of the 1995 resolution, and all the states of the region to convene a conference in 2012 to discuss and advance “the establishment of a Middle East zone free of nuclear weapons and all other WMD on the basis of arrangements freely arrived at by the States of the region, and with the full support and engagement of the nuclear-weapon States.”103 The 2010 report also mandated that a facilitator be appointed to aid in the implementation of the 1995 resolution and undertake preparations for the 2012 Middle East conference.104 Subsequently, Finnish diplomat Jaako Laajava was appointed to serve as facilitator for the conference, which would take place in December 2012 in Helsinki, Finland.105

97. 1995 NPT Review Conference, supra note 18, ¶ 5; Mideast Nuclear Weapon Free Zone (MENWFZ),FED’NOFAMERICAN SCIENTISTS, http://www.fas.org/nuke/control/menwfz/ index.html (last visited March 15, 2014); HAMEL-GREEN 2005, supra note 37, at 17. 98. See generally 1995 NPT Review Conference, supra note 18. 99. 1995 NPT Review Conference, supra note 18, ¶ 6. 100. Lewis & Potter, supra note 78. 101. Lewis 2013, supra note 13, at 238-39; WMD-Free Middle East Proposal at a Glance, supra note 84. 102. 2010 NPT Review Conference, supra note 18, at 29-31; Lewis 2013, supra note 13, at 439; WMD-Free Middle East Proposal at a Glance, supra note 84. 103. 2010 NPT Review Conference, supra note 18, at 30. 104. Id. 105. FORADORI &MALIN 2012, supra note 2, at 4.

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The 2010 final report was not well received, however, by the United States and Israel (which, as a non-signatory to the NPT, did not attend the 2010 Review Conference). Both countries took issue with the fact that the document explicitly singled out Israel in calling for “all States in the Middle East that have not yet done so to accede to the [NPT] as non-nuclear weapons States,”106 yet failed to even mention Iran’s illicit nuclear weapons program and compliance failures.107 Perhaps in light of U.S. and Israeli objections to the 2010 report, in November 2012, after extensive negotiations on the agenda of a future Middle East WMDFZ conference, the three depository states announced that the 2012 Helsinki conference would be postponed indefinitely.108 The U.S. State Department’s statement explained that the “conference cannot be convened because of present conditions in the Middle East,” “Iran’s continuing defiance of its international nonproliferation obligations,” and disagreement between the regional states over core issues, suggesting that more attention needed to be given to achieving consensus on the agenda of the conference.109 Russian and British statements echoed the U.S. concern over the lack of agreement among Middle East states, but also stated that the conference should be held in 2013.110 The

106. 2010 NPT Review Conference, supra note 18, at 29-30. 107. Press Release, The White House, Statement by the National Security Advisor, General James L. Jones, on the Non-Proliferation Treaty review conference (May 28, 2010), available at http://www.whitehouse.gov/the-press-ofﬁce/statement-national-security-advisor-general-james-l- jones-non-proliferation-treaty-; Lewis 2013, supra note 13, at 439; FED’NOFAMERICAN SCIENTISTS, supra note 97. 108. FORADORI &MALIN 2012, supra note 2, at 4; Kelsey Davenport & Daniel Horner, Meeting on Middle East WMD Postponed,ARMS CONTROL ASS’N (Dec. 2012), http://www.armscontrol.org/act/ 2012_12/Meeting-on-Middle-East-WMD-Postponed. 109. Victoria Nuland, 2012 Conference on a Middle East Zone Free of Weapons of Mass Destruction (MEWMDFZ), U.S. DEP’TOFSTATE (Nov. 23, 2012), http://www.state.gov/r/pa/prs/ps/2012/11/ 200987.htm. 110. Press Statement on the 2012 Conference on the Establishment of a Middle East Zone Free of Weapons of Mass Destruction,MINISTRY OF FOREIGN AFFAIRS OF THE RUSS.FED’N (Nov. 24, 2012), http://www.mid.ru/bdomp/brp_4.nsf/e78a48070f128a7b43256999005bcbb3/fdb6a81ff09d276a 44257ac2004d9362!OpenDocument; Middle East Weapons of Mass Destruction Free Zone Conference, U.K. FOREIGN &COMMONWEALTH OFFICE (Nov. 24, 2012), https://www.gov.uk/government/news/ middle-east-weapons-of-mass-destruction-free-zone-conference; see also Helsinki Middle East Confer- ence,MINISTRY FOR FOREIGN AFFAIRS OF FIN. (Nov. 24, 2012), http://www.formin.ﬁ/public/ default.aspx?contentidϭ263448&contentlanϭ2&cultureϭen-US. Securing attendance by both Israel and Iran seems to have been the key obstacle. Israel has not publicly committed to attending the meeting, stressing that it would not participate in a conference where its nuclear weapons would be the primary focus. Davenport & Horner, supra note 108; FORADORI &MALIN 2012, supra note 2, at 4. And, while Iran did say during a Track Two conference in early November 2012 that it would participate in a conference, it is unclear whether Iran made the announcement because it

2014] 333 GEORGETOWN JOURNAL OF INTERNATIONAL LAW

Helsinki conference was again postponed in 2013, which prompted Egypt to walk out of the NPT Preparatory Committee in April 2013 in frustration.111 As of this writing in 2014, little substantive progress has been made on an agenda or setting a firm date for Helsinki. Despite the deadlock of formal diplomacy, in the backchannels, various Track Two diplomacy meetings112 have been held as informal and non-binding ways to discuss regional arms control and security, explore possible disarmament initiatives, and familiarize members with each other’s threat perceptions and concerns.113 For example, the European Union and the IAEA Director General hosted forums in 2011 and 2012, where parties from the Middle East met to examine possible regional confidence-building measures.114 In addition, exploratory talks between official Middle East state envoys have also continued, including as recently as June 2014 when Israeli and Arab envoys met in Switzerland to discuss an agenda for regional talks about a possible WMDFZ.115 Prospective talks between Israel and Arab states were also convened a few months earlier in February 2014 by Ambas- sador Laajava despite concerns by Israel that it would be singled out during the discussion by the Arab governments.116 Iran had also

already knew the December 2012 meeting would not take place. Davenport & Horner, supra note 108; WMD-Free Middle East Proposal at a Glance,ARMS CONTROL ASS’N, supra note 84. 111. See Kelsey Davenport, No Date Set for Middle East Zone Meeting,ARMS CONTROL TODAY, Nov. 2013, http://www.armscontrol.org/act/2013_11/No-Date-Set-For-Middle-Eas-Zone- Meeting; WMD-Free Middle East Proposal at a Glance, supra note 84. 112. Track Two diplomacy involves dialogue between influential military and government officials (current and former) and non-official experts, academics, and individuals, whereas Track One diplomacy involves negotiations between government officials. Chen Kane 2011, supra note 93, at 53 n.8; see DAVID ALBRIGHT,MARK DUBOWITZ,ORDE KITTRIE,LEONARD SPECTOR & MICHAEL YAFFE,THE PROJECT ON U.S. MIDDLE EAST NONPROLIFERATION STRATEGY, U.S. NONPROLIFERA- TION STRATEGY FOR THE CHANGING MIDDLE EAST 84-85 (2013) [hereinafter ALBRIGHT ET AL.]. 113. Chen Kane 2011, supra note 93, at 53-56 (explaining that many of these “civil society” initiatives have been sponsored or hosted by non-profit organizations such as the Center for Middle East Development, the UCLA Center for Middle East Development, the Near East and South Asia Center for Strategic Studies, the Peace Research Institute Frankfurt, and UNIDR). 114. EU NON-PROLIFERATION CONSORTIUM, http://www.nonproliferation.eu (last visited Mar. 17, 2014); IAEA, IAEA Forum on Experience of Possible Relevance to the Creation of a Nuclear-Weapon- Free-Zone in the Middle East, at 6 (Nov. 21, 2011) [hereinafter IAEA 2011 Forum], available at http://www.iaea.org/newscenter/statements/misc/2011/petersen221111.pdf. 115. Elaine M. Grossman, Mideast Talks Held on WMD-Free Zone Prior to Ramadan Break,GLOBAL SECURITY NEWSWIRE (July 11, 2014), http://www.nti.org/gsn/article/mideast-talks-held-wmd-free- zone-prior-ramadan-break/. 116. Jay Solomon, Israel, Arab States Attended Meeting on Nuclear Disarmament,WALL ST.J. (Mar. 10, 2014, 6:30 AM), http://blogs.wsj.com/washwire/2014/03/10/israel-arab-states-attended- meeting-on-nuclear-disarmament/; Israel, Arab Nations Reconvene Talks on Mideast WMD Ban,

334 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST dispatched a low-ranking dignitary to “observe” a meeting prior to that of February 2014, but no Iranian delegate joined subsequent meetings.117 Although such Track Two conferences and prospective dia- logues have at the least kept discussion over regional disarmament alive, they are still limited by their informal nature and cannot replace formal negotiations or produce binding obligations.118 Additionally, many Track Two meeting organizers have found it difﬁcult to even convene sessions in the Middle East, because Israelis often cannot enter Arab countries other than Egypt and Jordan, meaning that most Track Two sessions have been held in Europe, making the entire process quite expensive.119

B. Broader Obstacles in the Current Impasse Although a number of successful NWFZs are currently in force, as detailed earlier in this Note, their enactment required overcoming a series of barriers, many of which still simmer despite the implementation of the ﬁnal treaties.120 Similar barriers have existed with the Middle East, which suffers today from uncertainty over internal politics, deep mistrust between states over each other’s intentions, disagreement over linking and sequencing of issues, a perceived utility of maintaining non-conventional weapons stockpiles, and, under it all, the lack of an effective regional institution to facilitate formal dialogue.121 First, the Arab Spring has signiﬁcantly changed the political and security context of the Middle East. As many states face internal and external threats from non-state actors, many have lost the short-term

GLOBAL SECURITY NEWSWIRE (Mar. 10, 2014), http://www.nti.org/gsn/article/israel-arab-nations- convene-talks-mideast-wmd-ban/. 117. Solomon, supra note 116. 118. See Chen Kane 2011, supra note 93, at 58; see also Edith M. Lederer, UN chief urges meeting on nuclear-free Mideast,ASSOC.PRESS, Aug. 14, 2014, http://m.startribune.com/?idϭ271312391 (reporting that UN Secretary-General Bank Ki-moon urged future WMDFZ parties to ﬁnalize arrangements for a Mideast conference to be held as soon as possible in 2014 and that he “‘remains concerned’ that a failure to convene the Mideast weapons-free-zone conference before the 2015 NPT review conference ‘may frustrate the ability of states to conduct a successful review of the operation of the (NPT) treaty and could undermine the treaty process and related non-proliferation and disarmament objectives’”). 119. Chen Kane 2011, supra note 93, at 58-59. 120. For a deeper discussion of these barriers within existing NWFZs, see HAMEL-GREEN 2005, supra note 37, at 25-27. 121. FORADORI &MALIN 2012, supra note 2, at 1, 5; see MARK FITZPATRICK, U.N. ASSOC. OF THE U.K., TOWARDS A MORE SECURE AND WMD-FREE MIDDLE EAST 11 (2013).

2014] 335 GEORGETOWN JOURNAL OF INTERNATIONAL LAW capacity and will to engage in regional nonproliferation and disarmament initiatives.122 As Paolo Foradori and Martin Malin of Harvard Kennedy School’s Project on Managing the Atom explain, “[t]he internal revolts have not only potentially created a popular base for the pursuit of WMD, but also have lowered the priority of work on a regional WMD-free zone, and called into question the participation of several key states in arms control and cooperative security discussions.”123 Shifting allegiances and rising populist sentiment on the Arab street have also proven to be strong obstacles to achieving non-proliferation and disarmament goals.124 A second barrier is the ever-persistent schism between Sunni and Shi’ite governments. Sunni states, especially Saudi Arabia, have remained skeptical (if not fearful) of Iran’s nuclear and regional ambi- tions, with some reports indicating that certain Gulf States have even held secret talks with Israel to discuss shared concerns over Iran,125 and that Saudi Arabia and Egypt are considering pursuing their own nuclear programs if the Iranian program is not halted.126 On the other hand, various Iranian experts and former government ofﬁcials argue that the current controversy over the Iranian nuclear program has not changed Tehran’s support of a Middle East WMDFZ, since Iran ﬁrst

122. SAMEH ABOUL-ENEIN, Making Progress on the Middle East Nuclear- and WMD-Free Zone: Egypt’s NPT Pillar, in A WMD-FREE ZONE IN THE MIDDLE EAST:REGIONAL PERSPECTIVES 9 (Paolo Foradori & Martin B. Malin, eds., 2013). 123. FORADORI &MALIN 2012, supra note 2, at 12. 124. FORADORI &MALIN 2012, supra note 2, at 12. A recent poll conducted in Egypt for example, showed a growing popular interest in the acquisition of nuclear weapons. Josh Rogin, New poll: Egyptians turning toward Iran, want nuclear weapons,FOREIGN POLICY:THE CABLE (Oct. 19, 2012), http://thecable.foreignpolicy.com/posts/2012/10/19/new_poll_egyptians_turning_ toward_iran_want_nuclear_weapons. 125. Dan Williams, Israel says close to forging new ties across Arab world,REUTERS (Apr. 14, 2014), http://uk.reuters.com/article/2014/04/14/uk-israel-arab-ties-idUKBREA3D0TT20140414 (reporting that the Israeli Foreign Ministry has been in contact with Saudi Arabia and Kuwait). 126. See, e.g., Dennis Ross, Next test for Obama: Soothing the Saudis, L.A. TIMES (Mar. 26, 2014), http://www.latimes.com/opinion/commentary/la-oe-ross-saudi-arabia-obama-20140325,0, 4405842.story#axzz2x4mSmrCu (explaining that “[l]ike the Israelis, [the Saudis] are convinced Iran is determined to acquire nuclear arms but see it as an instrument in its pursuit of regional hegemony”); Eli Lake & Josh Rogin, Saudi Arabia May Go Nuclear Because of Obama’s Iran Deal,THE DAILY BEAST (Feb. 14, 2014), http://www.thedailybeast.com/articles/2014/02/14/saudi-arabia- may-go-nuclear-because-of-obama-s-iran-deal.html (explaining that Western and Israeli intelli- gence services are seeing more serious signs of Saudi Arabia’s interest in nuclear enrichment as a deterrent to Iran); TURKI AL FAISAL, The Proposed WMD-Free Zone in the Middle East: A Saudi Perspective, in A WMD-FREE ZONE IN THE MIDDLE EAST:REGIONAL PERSPECTIVES 35 (Paolo Foradori & Martin B. Malin eds., 2013); May al-Shafei, Egypt considers nuclear power,AL-MONITOR (Dec. 22, 2013), http://www.al-monitor.com/pulse/security/2013/12/egypt-nuclear-energy-interview.html.

336 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST promoted the idea in the 1974 UNGA Resolution.127 Meanwhile, however, at the time of this writing, discussions between Iran and the P5ϩ1 of the UNSC (the United States, Russia, China, the United Kingdom, France, plus Germany) have not concluded, and Iran continues to possess the largest number of deployed ballistic missiles in the Middle East.128 Another obstacle to a Middle East WMDFZ is the lack of a single intergovernmental organization of any kind in the region.129 There is the League of Arab States, one of the longest surviving regional organizations, and the organization with the largest membership, however, it is tainted by deep internal divisions between Shi’a and Sunni powers and does not include Israel or Iran.130 In addition, while the Madrid Peace Conference of the early 1990s did establish the ACRS as the region’s only forum to discuss regional arms control initiatives, so far it has failed to produce any productive outcomes.131 Last and most complicated of the political obstacles is the difference in conceptual approaches between Israel and the Arab States. The issue primarily boils down to sequencing: whereas Israel argues that any zone effort must be a final stage of a comprehensive and durable Middle East Peace plan (“peace first, zone second”), Arab states and the Iranians argue the opposite, linking a future NWFZ or WMDFZ as a precondi- tion to any peace settlement or normalization of diplomacy with Israel (“zone first, peace second”).132

127. See, e.g.,NASSER HADIAN &SHANI HORMOZI, A WMD-Free Zone in the Middle East: Iran’s Security Imperatives, in A WMD-FREE ZONE IN THE MIDDLE EAST:REGIONAL PERSPECTIVES 14, 14-16 (Paolo Foradori & Martin B. Malin, eds., 2013); NASSER SAGHAFI-AMERI, WMD-Free Zone in the Middle East Encounters New Challenges: A View from Tehran, in A WMD-FREE ZONE IN THE MIDDLE EAST: REGIONAL PERSPECTIVES 18, 20-22 (Paolo Foradori & Martin B. Malin, eds., 2013). 128. For an overview of the Iranian nuclear program and its military capability, see Country Proﬁles: Iran, NTI, http://www.nti.org/country-proﬁles/iran/ (last visited Mar. 18, 2014). 129. FORADORI &MALIN 2012, supra note 2, at 15; FITZPATRICK, supra note 121, at 11; HAMEL-GREEN 2005, supra note 37, at 16. 130. FORADORI &MALIN 2012, supra note 2, at 15; HAMEL-GREEN 2005, supra note 37, at 16. 131. HAMEL-GREEN 2005, supra note 37, at 16-17; Chen Kane 2011, supra note 93, at 51-52 (noting “[t]he failure of the ACRS also revealed the deep disagreements between Egypt (which took upon itself to represent the Arab position) and Israel on priorities, the sequencing of the peace process versus WMDFZ negotiations, threat perceptions and the nuclear issue. The process also deepened mistrust and rivalries among different Arab states.”). 132. PAOLO FORADORI, Conclusion: Keep the Ball Rolling, in A WMD-FREE ZONE IN THE MIDDLE EAST:REGIONAL PERSPECTIVES 50 (Paolo Foradori & Martin B. Malin, eds., 2013); EMILY B. LANDAU & SHIMON STEIN, Where Do We Go From Here? A New Israeli Approach to Tension-Reduction in the Middle East, in A WMD-FREE ZONE IN THE MIDDLE EAST:REGIONAL PERSPECTIVES 23 (Paolo Foradori & Martin B. Malin, eds., 2013) [hereinafter LANDAU &STEIN 2013]; Lewis 2013, supra note 13, at 436;

2014] 337 GEORGETOWN JOURNAL OF INTERNATIONAL LAW

Any long-term hopes of a feasible Middle East zone would certainly require Israel’s active participation, as it is the region’s only presumed nuclear weapons-capable state.133 However, Israel has yet to ratify the NPT,134 which most Arab states see as a necessary condition for their own accession to relevant WMD treaties.135 Yet, Israeli leaders have long been openly skeptical about the utility of even a conference on WMDFZ. For example, at the September 2012 IAEA General Confer- ence in Vienna, Shaul Chorev, head of the Israeli Atomic Energy Commission, said that “[a]ny initiative to promote the 2012 conference on the Middle East under the banner of the NPT review conference, or the General Conference of the IAEA in complete disregard to the present regional somber realities, is futile.”136 Given the region’s long history of conﬂict with Israel and of noncompliance with WMD nonproliferation regimes, it is understandable that the Jewish state would be

WMD-Free Middle East Proposal at a Glance,ARMS CONTROL ASS’N, supra note 84; see, e.g., Israel yet to make decision on ME nuclear summit,JERUSALEM POST (Mar. 31, 2012), http://www.jpost.com/Middle- East/Israel-yet-to-make-decision-on-ME-nuclear-summit (quoting Israel’s ambassador to the United States, Ron Prosor, stating that “Israel would only be willing to join a nuclear free zone when there will be comprehensive peace in the region. Before that we feel that this is something that is absolutely not relevant.”). 133. See FORADORI &MALIN 2012, supra note 2, at 7 (noting that although the size of Israel’s nuclear arsenal is unknown, estimates range from 60 to some 400 weapons that can be delivered from land, sea, and air); see also Country Profiles: Israel, NTI, http://www.nti.org/country-profiles/ israel/ (last visited Mar. 18, 2014). For further discussion on Israel’s presumed nuclear program and the country’s deterrence policy, see generally URI BAR-JOSEPH, Taking Israel’s security interests into account: Deterrence policy in a changing strategic environment, in ARMS CONTROL AND MISSILE PROLIFERATION IN THE MIDDLE EAST 89-103 (Bernd W. Kubbig & Sven-Eric Fikenscher eds., 2012); AVNER COHEN,THE WORST-KEPT SECRET:ISRAEL’S BARGAIN WITH THE BOMB (2010); GAWDAT BAHGAT, PROLIFERATION OF NUCLEAR WEAPONS IN THE MIDDLE EAST 87-108 (2007). 134. U.N. OFFICE FOR DISARMAMENT AFFAIRS, supra note 15. 135. FORADORI &MALIN 2012, supra note 2, at 14 (noting that this disagreement led to the collapse of the ACRS talks in 1991). 136. Shaul Chorev, Statement given at the 56th General Conference of the IAEA, Vienna, Austria 6 (Sept. 19, 2012), available at http://www.iaea.org/About/Policy/GC/GC56/Statements/ israel.pdf. Chorev explained further that the WMDFZ process “can only be launched when peaceful relations exist for a reasonable period of time in the region, and the neighboring states have established sufficient confidence among themselves.” Id. at 8. Israeli Prime Minister Benjamin Netanyahu expressed his own view of the prospects for a Middle East WMDFZ in a 2010 television interview, stating that “[a]s far as a nuclear weapons-free zone...when the lion lies down with the lamb, and you don’t need a new lamb every day to satisfy the lion, then we might have this kind of transformation in the Middle East.” Chris Wallace, Benjamin Netanyahu on Alleged Rift with President Obama, Mideast Peace Process,FOX NEWS SUNDAY (July 11, 2010), http:// www.foxnews.com/on-air/fox-news-sunday-chris-wallace/transcript/benjamin-netanyahu-alleged- rift-president-obama-mideast-peace-process#p//v/928653608001.

338 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST skeptical of relying on treaties for security.137 For example, in response to the 2013 UNGA Resolution on the establishment of a Middle East zone, the Israeli mission stressed that effective arms control measures can only be achieved and sustained in a “region where war, armed conﬂict, terrorism, political hostility, and incitement are not features of everyday life.”138 With persistent threats along its borders by terrorist organizations such as Hezbollah, Hamas, al-Qaeda, and the Islamic State of Iraq and al-Sham (ISIS), Israel claims that any process toward achieving a WMDFZ will only come about through a modest series of CBMs between parties until Israel feels sufﬁciently secure to give up its nuclear deterrence.139 To be sure, disarmament agreements can sometimes be achieved in quick, dramatic fashion.140 Nonetheless, considering both the physical scope of a future Middle East WMDFZ and the myriad political obstacles in the way, a tempered approach seems most appropriate for ever achieving the necessary regional support for such a treaty.

V. BREAKING THE DEADLOCK As evidenced by the failed efforts merely to organize a Middle East WMDFZ conference, full implementation of a Middle East zone is

137. FORADORI &MALIN 2012, supra note 2, at 32. From a cultural perspective, Israel worries about the history of deception by Middle East leaders in violating WMD commitments, evident by Saddam Hussein, Muammar Qadaffi, Bashar al-Assad, and the Ayatollahs of Iran. See LANDAU & STEIN, supra note 132, at 23; Chorev, supra note 136, at 6 (“[T]he Middle East has long been characterized...bythepursuit of weapons of mass destruction by despotic regimes, in violation of every legally binding international commitment and obligation.”). For information on past and current WMD use and development by Middle East countries, see country profiles compiled by the Nuclear Threat Initiative (NTI) in partnership with the James Martin Center for Nonprolifera- tion Studies. James Martin Center for Nonproliferation Studies, Country Profiles,NUCLEAR THREAT INITIATIVE, http://www.nti.org/country-profiles/ (last visited Mar. 16, 2014). 138. Permanent Mission of Israel to the United Nations, The Secretary-General report: Establish- ment of a nuclear-weapon-free zone in the region of the Middle East: Response by the State of Israel,¶5 (Oct. 3, 2013), available at https://unoda-web.s3.amazonaws.com/wp-content/uploads/2013/10/ Israel_Submission_Est_of_ME_NWFZ_3OCT2013.pdf (submission to Part I still to be used as addenda). 139. Id.;LANDAU &STEIN, supra note 132, at 23; Ariel Levite, SECOND EU NON-PROLIFERATION CONSORTIUM,REFLECTIONS ON ‘THE REGIONAL SECURITY ENV’T AND BASIC PRINCIPLES FOR THE RELATIONS OF THE MEMBERS OF THE ZONE’ 7 (2012), available at http://www.nonproliferation.eu/ documents/backgroundpapers/levite.pdf [hereinafter Levite 2012] (explaining that in light of the Arab Spring, it is “counterproductive...toexpect and demand rapid progress anytime soon towards the construction of an MEWMDFZ”). 140. Syria’s September 2013 agreement to eliminate its chemical weapons is an example. See Timeline of Syrian Chemical Weapons Activity, 2012-2014,ARMS CONTROL ASS’N, supra note 26.

2014] 339 GEORGETOWN JOURNAL OF INTERNATIONAL LAW unlikely to be a realistic objective in the short term. This is especially true as long as political instability continues in several key countries (namely Syria and Egypt) and as comprehensive Arab-Israeli peace remains elusive.141 However, the past experiences of negotiating existing NWFZs, as discussed in Section III of this Note, indicate that a successful outcome can be attained even despite regional mistrust, hardened security disagreements, and geopolitical complexities.142 Additionally, the fact that Track Two dialogue continues and that all key Middle East governments have endorsed WMDFZ as a long-term goal143 underscores the notion that, at the least, attempting to make short-term progress toward that goal is worthwhile.

A. A Nuclear or a WMD Free Zone? Along with the political hurdles, one of the most basic issues to overcome in establishing a WMDFZ in the Middle East is the lack of precedent. Existing regional treaties deal only with nuclear weapons, while other categories of WMD (chemical and biological weapons) are technically out of their scope.144 However, this does not mean that a proposal for a WMDFZ should be ignored. As touched on in Section IV of this Note, when Egypt proposed an expanded WMDFZ in 1980, it

141. See Levite 2012, supra note 139, at 7. 142. For example, the Treaty of Tlatelolco was negotiated amid the Cuban missile crisis and involved two nuclear-capable and archrival states, Argentina and Brazil. FORADORI &MALIN 2012 supra note 2, at 19; FITZPATRICK, supra note 121, at 9; IAEA 2011 Forum, supra note 114, at 5. The Treaty of Bangkok took nearly twenty-four years to complete due to unfavorable political conditions. Southeast Asian Nuclear-Weapon-Free-Zone (SEANWFZ) Treaty (Bangkok Treaty), NTI, supra note 51. Establishing the African NWFZ took thirty-two years, including South Africa’s abandonment of its nuclear weapons program. IAEA 2011 Forum, supra note 114, at 2. And, the Central Asian NWFZ was negotiated despite the region having hosted thousands of former nuclear weapons; continuing to have signiﬁcant stocks of nuclear material; being surrounded by the NWS (Russia, China, Pakistan, India, and presumably Israel); and being so close to the Middle East and South Asia—both regions of high nonproliferation concern. FORADORI &MALIN 2012, supra note 2, at 45. 143. See, e.g., Solomon, supra note 116 (noting that both Iran and Israel have taken part in exploratory talks and that Israel has said that it “support[s] the formal establishment of a nuclear-weapons free zone in the Mideast”); Permanent Mission of Israel to the United Nations, supra note 138, ¶ 6 (stating that despite its reservations, “Israel has joined the consensus on the [UNGA NWFZ] resolution for almost thirty years”); SHAI FELDMAN,NUCLEAR WEAPONS AND ARMS CONTROL IN THE MIDDLE EAST 315 (MIT Press, 1997) (quoting then Israeli Foreign Minister Shimon Peres at the 1993 signing of the CWC, saying, “Israel suggests to all countries of the region to construct a mutually veriﬁable zone, free of surface-to-surface missiles and of chemical, biological and nuclear weapons”). 144. FORADORI &MALIN 2012, supra note 2, at 45.

340 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST calculated that covering the various categories of WMD in the proposal would be indispensable to attract the support of Israel and the United States.145 The theory was that perhaps Israel could be per- suaded to join a process in which it eventually abandoned its presumed nuclear weapons capability in return for all other states in the region giving up or forgoing offensive chemical and biological weapons through their joining of key nonproliferation treaties—namely the CWC and BWC.146 There are certainly disadvantages to pushing for a more complex Middle East WMDFZ over just a NWFZ. First, an expanded zone adds further complications, especially with regard to a verification mechanism to address the “dual use” nature of chemical and biological materials and equipment.147 Second, many commentators believe that first achieving a regional nuclear ban, considered the most difficult of the bans, is instrumental for later securing obligations against chemical and biological weapons.148 Despite these disadvantages, the added complexity of a WMDFZ is not an insurmountable obstacle. Although it is true that parties to existing NWFZ have engaged in little discussion of extending their own zones to WMDFZs,149 it is also evident that each new NWFZ since the Treaty of Tlatelolco has been more complex than the last, including different legal mechanisms crafted to address the needs of the particular regions.150 Most importantly, the Middle East, given its volatile history, demands a different zonal framework for several reasons. First, existing treaties do not have sufficient protections against the proliferation threats posed by non-state actors, arms dealers, and black-market WMD material suppliers.151 Second, although a future WMDFZ may overlap with prior obligations under the CWC and the BWC, neither

145. FORADORI &MALIN 2012, supra note 2, at 45; Lewis & Potter, supra note 78. 146. Lewis & Potter, supra note 78. 147. FORADORI &MALIN 2012, supra note 2, at 45; see Brief Description of Chemical Weapons,ORG. FOR THE PROHIBITION OF CHEMICAL WEAPONS, https://www.opcw.org/about-chemical-weapons/what- is-a-chemical-weapon/ (describing the difficulty of determining whether genuinely dual-use chemicals are chemical weapons as defined by the CWC). 148. See, e.g., Fahmy & Lewis 2011, supra note 84, at 41 (“It is a widely shared contention that if and when nuclear weapons are addressed to the satisfaction of the regional states, a commitment to disarm and refrain from acquiring chemical and biological weapons (and their means of delivery) by regional states would either swiftly follow or at least be addressed for an NWFZ to be finalized.”). 149. HAMEL-GREEN 2011, supra note 31, at 10-11. 150. FORADORI &MALIN 2012, supra note 2, at 46; see IAEA 2011 Forum, supra note 114. 151. See, e.g.,HAMEL-GREEN 2011, supra note 31, at 10.

2014] 341 GEORGETOWN JOURNAL OF INTERNATIONAL LAW convention has attained universal acceptance (or compliance), especially in the Middle East.152 Therefore, successful negotiations over a WMDFZ may encourage (or require) regional holdouts to accede to the CWC and BWC.153 Building off of that possibility, and the difficulty of achieving a nuclear ban, one useful and perhaps more practical idea would be to start with a regional ban only on chemical and biological weapons before seeking regional denuclearization.154 Recent developments in the region may actually make this proposal feasible. In February 2014, Libya announced that it had completed the destruction of its usable chemical weapons and that it would complete the destruction of precursor chemicals by the end of 2016.155 And Syria, which once possessed what was considered the largest chemical weapons stockpiles, has acceded to the CWC and is allegedly placing its entire stockpile under the control of the Organization for the Prohibition of Chemical Weapons (OPCW).156 In addition, Israel, which has often indicated that it uses its nuclear arsenal to deter chemical, biological, and conventional weapons attacks by its Arab neighbors and Iran,157 has hinted that it might be willing to ratify the CWC as long as its Arab neighbors do the same.158 To be sure, focusing first on chemical and biological weapons could raise some red flags. A preliminary difficulty is that with inspections of biological weapons, countries such as Israel—with government-funded pharmaceutical industries—would likely be hesitant to open the door

152. Id.; see supra notes 23, 26-27 (discussing BWC and CWC parties). 153. Greene, supra note 79. 154. Id. 155. Jomana Karadsheh, Libya destroys chemical weapons, CNN (Feb. 4, 2014), http:// www.cnn.com/2014/02/04/world/africa/libya-chemical-weapons/. 156. Patrick J. McDonnell, Chemical Weapons Removal from Syria Nearly Complete, L.A. TIMES (Apr. 22, 2014), http://www.latimes.com/world/middleeast/la-fg-syria-chemical-weapons- 20140423,0,3798910.story (reporting that the Assad regime has shipped almost ninety percent of its chemical weapons materials out of Syria). But see Rick Gladstone, Claims of Chlorine-Filled Bombs Overshadow Progress by Syria on Chemical Weapons, N.Y. TIMES (Apr. 22, 2014), http://www. nytimes.com/2014/04/23/world/middleeast/syria-chemical.html?_rϭ0. 157. FORADORI &MALIN 2012, supra note 2, at 45. 158. Peres: Israel Will Consider Joining Chemical Weapons Ban Treaty,REUTERS (Sept. 30, 2013), http://www.reuters.com/article/2013/09/30/us-israel-chemical-idUSBRE98T0CS20130930. De- spite not having acceded to the CWC or BWC, Israel still has declared its support for the Conventions’ principles and signed the 1969 Geneva Protocol (prohibiting the use of chemical and bacteriological weapons in war). DAVID FRIEDMAN,SECOND EU NON-PROLIFERATION CONSOR- TIUM,TOWARDS WMDFZ IN THE MIDDLE EAST:BIOLOGICAL CONFIDENCE-BUILDING MEASURES 4 (2012), available at www.nonproliferation.eu/documents/backgroundpapers/friedman.pdf.

342 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST for inspection that could expose trade and government secrets.159 That said, if a functional regional veriﬁcation system were created with a sufﬁciently limited inspections mandate, such apprehension to a chemical and biological ban by the holdout parties could perhaps be overcome. Alternatively, others may argue that a regional ban on chemical and biological weapons may be unnecessary if Middle East zonal states yet to join the CWC and BWC merely agreed to do so. Such an argument, however, would overlook the value in the process of building a regional ban, in which the negotiations between regional players could generate greater cooperation on security issues and set the foundation for more intense discussion of an eventual nuclear ban.

B. Confidence-building Measures Although enacting a WMDFZ will likely remain a distant aspiration until a better level of trust is established between Middle East parties, there are various interim steps that can and should be taken to create that confidence. In 1991, the U.N. Office of Disarmament Affairs (UNODA) published a study on “effective and verifiable measures which would facilitate the establishment of a nuclear-weapon-free zone in the Middle East,” explaining that the process of creating a Middle Eastern zone should be preceded by a series of CBMs both by future zonal states as well as external NWS.160 Generally in arms control settings, CBMs have served as initial means to build trust between parties, reduce the risk of war, and create conditions for agreement on fundamental issues.161 Such measures have frequently been used in arms controls treaties, yet in the Middle East, many of the governments remain suspicious of CBMs as being merely delay tactics for real negotiations or serving as means to impose further pre-conditions on

159. Nahal Kazemi, Ill at Ease: The Precarious State of Biological Weapons Convention’s Proposed Enforcement Regime,17FLA.J.INT’L L. 137, 141 (2005). The question over inspections of government and private biological research facilities has been a signiﬁcant point of contention with regard to creating an enforcement protocol for the BWC. Id. at 141. In 2001, for example, the United States rejected a draft BWC compliance protocol due in large part to heavy pressure from the American pharmaceutical industry, which was concerned with protecting conﬁdential industry information. Id. at 142, 155-56; Biological Weapons Convention (BWC) At A Glance,ARMS CONTROL ASS’N, available at http://www.armscontrol.org/factsheets/bwc (last visited Apr. 9, 2014) (“[T]he United States rejected the draft and any further protocol negotiations, claiming such a protocol could not help strengthen compliance with the BWC and could hurt U.S. national security and commercial interests.”). 160. See UNODA 1991, supra note 92, ¶¶ 112-32. 161. FORADORI &MALIN 2012, supra note 2, at 21.

2014] 343 GEORGETOWN JOURNAL OF INTERNATIONAL LAW future security arrangements.162 Despite this, there are still certain interim actions that could establish a more productive environment for reaching the ultimate WMDFZ goal.

1. Treaty Adoption, Declarations, and Transparency As previously discussed in Section II of this Note, one of most difficult negotiations for a Middle East zone concerns regional ratification of the major WMD-related treaties. While Egypt and some other Arab states have refused to ratify WMD conventions before Israel ratifies the NPT, Israel has hesitated to ratify the treaties until its Arab neighbors remove their chemical and biological weapons stockpiles.163 To overcome this impasse, one idea could be for Middle East nations yet to sign or ratify the key WMD weapons-bans to merely commit to doing so by a given time prior to the entry into force of a final zonal treaty.164 Once countries, including Israel, become NPT parties, this could lead to the unilateral submission of nuclear facilities to IAEA safeguards.165 In addition, Middle East states could proclaim that before the entry into force of the WMDFZ, all state parties will declare the existence of any current and past WMD programs and eventually submit to the IAEA and OPCW to supervise disarmament.166 A successful example of this was with South Africa, which, after dismantling its nuclear weapons program in 1989, was confirmed to have done so by

162. See PATRICIA LEWIS,TIPTOE,STRIDE AND LEAP:STEPS TOWARDS A WMD-FREE MIDDLE EAST 7 (2012), available at http://www.nonproliferation.eu/documents/backgroundpapers/lewis.pdf [hereinafter Lewis 2012]. For example, as Nabil Fahmy, Egypt’s former Ambassador to the United States (1997-1999) explained, Israel generally supports CBMs, but handles them cautiously, while Arab countries see CBMs “as a process of Arab–Israeli political normalization, on which they refuse to embark until Arab-Israeli peace is achieved.” NABIL FAHMY,SECOND EU NON- PROLIFERATION CONSORTIUM,THE REGIONAL SECURITY ENVIRONMENT AND BASIC PRINCIPLES FOR THE RELATIONS OF THE MEMBERS OF THE ZONE 7 (2012), available at http://www.nonproliferation.eu/ documents/backgroundpapers/fahmy.pdf. 163. FORADORI &MALIN 2012, supra note 2, at 14; Ariel Levite, Global Zero: An Israeli Vision of Realistic Idealism,33WASH. Q. 2, 157-68 (Apr. 2010), available at https://csis.org/files/publication/ twq10aprillevite.pdf. The recent exception to this is Syria, which acceded to the CWC in 2013. See Timeline of Syrian Chemical Weapons Activity, 2012-2014, supra note 26. 164. FITZPATRICK, supra note 121, at 16; Fahmy & Lewis 2011, supra note 84, at 45. 165. FAHMY, supra note 162, at 8; see Said, supra note 83, at 130-32 (proposing a three-step strategy with states: (1) adopting CBMs and issuing “no-first-use” declarations; (2) capping existing WMD stocks and freezing production of fissile materials; and (3) the actual establishment of a WMDFZ following the normalization of relations between Israel and its neighbors). 166. See Fahmy & Lewis 2011, supra note 84, at 45.

344 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST the IAEA in 1993.167 Of course, the actual destruction of the WMD stockpiles would be at a later stage in the overall treaty process, but, in the interim, such forward-looking declarations may be more acceptable to Israel.

2. Regional Security Forum and Information Sharing

Given the lack of consistent regional dialogue, Middle East states should formally establish an institutional forum to discuss mutual security issues and cooperative arrangements.168 This could be accomplished through the revival of the ACRS framework or by establishing a new organization modeled on other regional security forums such as the ASEAN Regional Forum or the Organization for Security and Co-operation in Europe.169 Along with hosting discussion of a future WMDFZ, the regional forum could allow Middle East countries to establish regular communications and exchange reports on each other’s respective national security outlooks. In particular, member states could focus on counterterrorism measures and implementing domestic legislation of UNSC Resolution 1540, regarding procedures to combat non-state WMD proliferation.170 Countries could also use the forum to organize multilateral and bilateral training exercises, arrange for observations of non-WMD weapons systems, and hold workshops speciﬁcally focused on preventing and responding to chemical and biological weapons attacks.171

167. IAEA, The Denuclearization of Africa: Report to the Director General, ¶¶ 21-32, Gen. Conf. 1075, IAEA Doc. GC (XXXVII)/1075 (Sept. 9, 1993), available at http://www.iaea.org/About/ Policy/GC/GC37/GC37Documents/English/gc37-1075_en.pdf. 168. FORADORI &MALIN 2012, supra note 2, at 37-38. See LANDAU &STEIN, supra note 132, at 24 (explaining that Israel has proposed establishing a forum for conducting a “regional security dialogue” on both comprehensive regional security and the issue of a WMDFZ). 169. See generally CHEN KANE 2011, supra note 93; About The ASEAN Regional Forum, ASEAN REG’L FORUM, http://aseanregionalforum.asean.org/about.html (last visited Mar. 30, 2014); ORG. FOR SEC. AND CO-OPERATION IN EUROPE, http://www.osce.org (last visited Mar. 30, 2014). 170. See ALBRIGHT ET AL., supra note 112, at 83; FITZPATRICK, supra note 121, at 15; Lewis 2012, supra note 162, at 7. 171. See Lewis 2012, supra note 162, at 8; FAHMY, supra note 162, at 8; see also FRIEDMAN, supra note 158, at 8-9 (discussing joint law enforcement exercises on biological weapons attack); ALBRIGHT ET AL., supra note 112, at 86-87 (suggesting a regional action plan for biosafety and biosecurity collaboration).

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3. Mutual Recognition As a further measure, Iran and the relevant Arab states should publicly recognize each other’s sovereignty, including Israel’s right to exist.172 Although Arab and Israeli envoys have attended numerous security conferences together, and Egypt and Jordan already have peace treaties with the Jewish state, it may prove difﬁcult for those states (including the Arab League) that still do not recognize Israel to engage in substantive negotiations.173 Admittedly, mutual recognition between Israel and Arab states will not be easy to attain, and for Israel, this may be the most important outcome it seeks throughout the entire WMDFZ negotiation process. However, establishing normalized diplomatic relations could dramatically reduce the levels of mistrust between key Middle East players.

4. External Support Progress toward the realization of a Middle East WMDFZ will require express backing by key external NWS and major military powers.174 At the political level, NWS and the P5ϩ1 could all publicly reiterate their support for the creation of a WMDFZ in the Middle East.175 At the legal level, NWS could then offer interim negative assurances—similar to those likely to be in a ﬁnal zone treaty—whereby the NWS commit not to use or threaten to use nuclear weapons against any future zonal state during the treaty negotiations, until the treaty comes into force, and until any additional protocols are signed and ratiﬁed.176 Taking it further, both Middle Eastern states and external powers could commit not to mount attacks on civil nuclear, chemical, or biological sites during negotiations and until the treaty enters into force.177 The

172. FITZPATRICK, supra note 121, at 15. 173. See id. This issue may still prove difﬁcult given that Arab states may seek to link recognition to the Israeli-Palestinian conﬂict, in which Israel believes the Palestinians must recognize Israel as a Jewish state, whereas Palestinians worry such recognition would preclude resolution of the refugee issue and lead to discrimination against Israel’s Arab minority citizens. See, e.g., Arab League declares ‘total rejection’ of Jewish state recognition,THE JERUSALEM POST (Mar. 26, 2014), http://www.jpost.com/Diplomacy-and-Politics/Arab-League-states-total-rejection-of-Jewish- state-recognition-346543. 174. UNODA 1991, supra note 92, ¶ 133. 175. FAHMY, supra note 162, at 8. 176. Id.; Lewis 2012, supra note 162, at 7; see UNODA 1991, supra note 92, ¶¶ 112-74 (laying out a step-by-step strategy for attaining a Middle East NWFZ, including various negative nuclear security assurances by NWS and positive security assurances by other external powers). 177. Lewis 2013, supra note 13, at 445.

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United States will need to play a large role in this process and can demonstrate its commitment to a Middle East zone by ratifying the additional protocols of existing NWFZs, especially those still pending in the Senate.178 Of the existing NWFZs, ratifying the protocols of the Treaty of Pelindaba could be particularly noteworthy because several Middle East states are already parties to that zone.179 Lastly, to foster more regional communication and spur creative problem-solving in the formal negotiations, the United States, the EU, and all P5ϩ1 members, should signiﬁcantly increase funding for Track Two efforts, where unofﬁcial state delegations and experts could meet and discuss threat perceptions and challenges in achieving a WMDFZ.180

VI. ELEMENTS OF A FUTURE MIDDLE EAST WMDFZ This Section of the Note draws from the history and context discussed in previous Sections to outline a preliminary framework of the central elements and modalities of a future Middle East WMDFZ. Although, much like the existing NWFZ treaties, any future Middle East treaty would invariably require several other components, the attempt here is merely to conceptualize and highlight what should be the elements of a future zone that would constitute the core of future regional negotiations on the subject. Current zone treaties, though tailored to some extent based on specific regional needs, all contain five main components that would be of particular importance to a future Middle East WMDFZ encompass- ing nuclear, chemical, and biological weapons: (1) a definition of the

178. See supra note 77. In the 2010 Nuclear Posture Review (NPR), the United States declared that it is prepared to “strengthen its long-standing ‘negative security assurance’ by declaring that [it] will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the [NPT] and in compliance with their nuclear non-proliferation obligations.” U.S. DEP’TOFDEF., NUCLEAR POSTURE REVIEW REPORT 15, 46 (2010). Although such statements presumably cover the majority of the world, the NPR is not legally binding, and thus actual ratiﬁcation of negative protocols can set a stronger precedent for future free zone treaties. See U.S. “Negative Security Assurances” at a Glance,ARMS CONTROL ASS’N (Sept. 2012), http://www.arms control.org/factsheets/negsec (last visited Mar. 30, 2014); Negative Security Assurances,REACHING CRITICAL WILL, http://www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/5442- negative-security-assurances (last visited Mar. 30, 2014); Edith M. Lederer, Central Asian nations get assurances of no nukes,ASSOC.PRESS (May 6, 2014), http://news.yahoo.com/central-asian-nations- assurances-no-nukes-165319951.html (explaining that “Russia’s U.N. Ambassador Vitaly Churkin and China’s U.N. Ambassador Li Baodong expressed hope that [the NWS signing of the Central Asian NWFZ protocol] will spur efforts to hold a Mideast conference soon”). 179. See supra note 57 and accompanying text. 180. ALBRIGHT ET AL., supra note 112, at 84-85.

2014] 347 GEORGETOWN JOURNAL OF INTERNATIONAL LAW zone’s territorial application; (2) basic non-conventional weapons obligations; (3) veriﬁcation systems; (4) compliance and dispute resolution mechanisms; and (5) additional protocols that bind NWS and external states to negative—and sometimes positive—security assurances. The following thus draws upon the experience of the NWFZs already in existence to envision the core elements of a future Middle East WMDFZ.

A. Scope of the Zone The first issue that must be addressed is the geographical limits of the zone. The difficulty, though, with the Middle East is that the region has no clearly defined geographic boundaries.181 Despite this, there are generally three approaches that could address the zone’s geographic application. The first approach, similar to that employed by the Southeast Asian and Central Asian NWFZ treaties, would explicitly name each of the parties to the treaty.182 A second option would draw borders based on the territories of state parties within the zone, modeled after the Treaty of Pelindaba, of which several Middle Eastern states are already parties.183 The third, but perhaps most difficult option for the Middle East, would be to delineate the zone by latitude and longitudinal coordinates, similar to the treaties of Tlatelolco and Rarotonga.184 Regardless of the approach, a future Middle East WMDFZ should apply to Iran, Israel, and most Arab states.185 For example, a 1989 IAEA technical study assumed the zonal region would cover states extending from Libya in the west to Iran in the east, and from Syria in the north to Yemen in the south.186 The subsequent 1991 UNODA study expanded

181. Lewis 2013, supra note 13, at 446 (explaining that there are states in the Arab League that are not considered in the Middle East, and other states, such as Turkey that are generally considered in the region, but would not consider themselves politically afﬁliated). 182. See Treaty of Bangkok, supra note 50, arts. 1-2; Treaty of Semipalatinsk, supra note 66, art. 2; see also Lewis 2013, supra note 13, at 446; Fahmy & Lewis 2011, supra note 84, at 41-42. 183. Lewis 2013, supra note 13, at 446; Fahmy & Lewis 2011, supra note 84, at 41; see Treaty of Pelindaba, supra note 56, art. 1; see also supra text accompanying note 57 (discussing parties to the Treaty of Pelindaba). 184. See Treaty of Tlatelolco, supra note 36, art. 4; Treaty of Rarotonga, supra note 43, Annex 1. 185. The full list of states could be Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, the Palestinian Authority, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen. See Fahmy & Lewis 2011, supra note 84, at 42. 186. IAEA, Technical Study on Different Modalities of the Application of Safeguards in the Middle East, at 1, IAEA Doc. GC (XXXIII)/887 (Aug. 29, 1989).

348 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST the zone to include all Arab League states, plus Iran and Israel.187 The Arab League has endorsed this idea, and Israel has not objected, other than to stress that all countries in the eventual zone should be publicly accepted as an integral part of the treaty.188 In addition, it has been suggested that the zone should include Pakistan and/or Turkey.189 However, including either would add unnecessary complexity to the treaty because Pakistan already has between 90 and 110 stockpiled nuclear warheads,190 and Turkey has mutual security obligations through its membership in the North Atlantic Treaty Organization.191 Ultimately however, an incremental method to deﬁning a Middle East zone may make most procedural sense, especially in light of some of the Middle Eastern states’ hesitancy to join such a treaty. This was suggested by the 1991 UNODA report, which proposed that “a zone can be developed in stages, beginning with the core countries and later extended to include additional [s]tates.”192 A somewhat similar approach was taken in the Treaty of Tlatelolco, which stipulates that the treaty would not come into force until ratiﬁed by certain zonal countries (delineated by longitude and latitude),193 yet allows countries to waive that limitation and bring it into force for themselves immediately.194 Applied to the Middle East, states such as Egypt, Syria, Jordan, Saudi Arabia, Iraq, Israel, the United Arab Emirates, and Iran could be required to join at the outset for the treaty to enter into force, whereas more peripheral states, such as Afghanistan as well as Arab League states furthest to the south and west, could be eligible to join but not required to do so for the treaty to enter into force.195 This could be feasible, at least for a nuclear ban, given that several of the Arab League

187. UNODA 1991, supra note 92, ¶ 133. 188. WMD-Free Middle East Proposal at a Glance, supra note 84. 189. Mohamed I. Shaker, Key Elements of a WMD-Free Zone in the Middle East, in A WMD-FREE ZONE IN THE MIDDLE EAST:REGIONAL PERSPECTIVES 42, 43 (Paolo Foradori & Martin B. Malin eds., 2013). 190. Pakistan, NTI, http://www.nti.org/country-proﬁles/pakistan/ (last updated July, 2014). 191. Shaker, supra note 189, at 43; FITZPATRICK, supra note 121, at 12; UNODA 1991, supra note 92, ¶ 67. 192. UNODA 1991, supra note 92, ¶ 66. 193. Treaty of Tlatelolco, supra note 36, arts. 25, 28(1). 194. Id. art. 28(2); Treaty for the Prohibition of Nuclear Weapons in the Caribbean (LANWFZ) (Tlatelolco Treaty), supra note 41 (noting that the last state to ratify the treaty, Cuba, deposited its instruments of ratiﬁcation in October 2002). 195. Shaker, supra note 189, at 42; FITZPATRICK, supra note 121, at 12; see UNODA 1991, supra note 92, ¶¶ 66-72.

2014] 349 GEORGETOWN JOURNAL OF INTERNATIONAL LAW states are already parties to the African NWFZ.196 Turkey and Pakistan could also later join the zone, but in the short-term, they could sign an additional protocol to the treaty guaranteeing negative security assurances to the zonal states.197

B. Basic Obligations Based on Article 1 of the U.N. Charter, a future Middle East WMDFZ should be established pursuant to the goal of achieving international security through collective measures.198 With that backdrop, the overall commitment of a zone treaty should be for state parties not to possess, acquire, manufacture, test, use, or station nuclear weapons (per Articles I and II of the NPT199), chemical weapons (per Article I of the CWC200), and biological weapons (per Articles I and II of the BWC201).202 The deﬁnitions of such non-conventional weapons could be modeled on current international treaties on nuclear, chemical, and biological weapons, as well as the 1948 U.N. Commission for Conventional Armaments.203 Middle East states should declare all WMD facilities204 and agree to place them under appropriate safeguards, including those of the IAEA

196. See supra note 57 and accompanying text. 197. See FITZPATRICK, supra note 121, at 12. 198. See U.N. Charter art. 1. 199. See NPT, supra note 5, arts. I, II. 200. CWC, supra note 21, art. I. 201. BWC, supra note 20, arts. I, II. 202. WMD-Free Middle East Proposal at a Glance, supra note 84; FAHMY, supra note 162, at 4-5; see 1995 NPT Review Conference, supra note 18. For further discussion of what should be required for a WMDFZ to cover chemical and biological weapons, see JEZ LITTLEWOOD, Strengthening the Role of the BTWC and CWC, in BUILDING A WEAPONS OF MASS DESTRUCTION FREE ZONE IN THE MIDDLE EAST: GLOBAL NON-PROLIFERATION REGIMES AND REGIONAL EXPERIENCES 25, 31-46, U.N. Sales No. GV.E/ A.04.0.30 (2004). 203. WMD-Free Middle East Proposal at a Glance, supra note 84. The term “weapons of mass destruction” was first defined by the U.N. Commission for Conventional Armaments as “atomic explosive weapons, radio-active material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.” U.N. Doc. S/C.3/32/Rev.1 (Aug. 18, 1948), as quoted in U.N. OFFICE OF PUB.INFO., THE UNITED NATIONS AND DISARMAMENT, 1945-1965 28 (1967). For further discussion on defining nuclear weapons, materials, and facilities in a free zone, see Fahmy & Lewis 2011, supra note 84, at 42-44. 204. See Treaty of Pelindaba, supra note 56, art. 6 (requiring states “[t]o declare any capability for the manufacture of nuclear explosive devices”).

350 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST for nuclear material, prior to the treaty’s entry into force.205 States should further agree to dismantle and destroy any remaining WMD stockpiles, capabilities, or facilities under appropriate international verification systems prior to the treaty entering into force.206 Such a provision could be similar to that of the Treaty of Pelindaba, the only NWFZ treaty to specifically deal with the dismantling of existing nuclear weapon-related facilities.207 Any nuclear explosive and other WMD testing in the territories of zonal states should also be proscribed, and states should undertake not to assist or encourage such testing by any state anywhere.208 As with the Treaty of Semipalatinsk, the Middle East treaty could also require compliance with the CTBT.209 However, the WMDFZ should not prevent the peaceful use of nuclear, chemical, and biological science, technology, and energy.210 Such use surely would need to meet stringent verification standards, given the possibility of countries developing WMD under the guise of “peaceful purposes.”211 Next, the treaty should stipulate that state parties would not permit the stationing of any WMD by any state within or outside the zone.212 As for transit, like most NWFZs, the Middle East zone should allow for

205. See Fahmy & Lewis 2011, supra note 84, at 45; see generally IAEA, Technical Study on Different Modalities of the Application of Safeguards in the Middle East, supra note 186. 206. See Fahmy & Lewis 2011, supra note 84, at 45. 207. See Treaty of Pelindaba, supra note 56, art. 6 (committing each party to dismantle and destroy any nuclear explosive device that it manufactured prior to the coming into force of the treaty; to destroy facilities for the manufacture of nuclear explosive devices or, where possible, to convert them to peaceful uses; and to permit the IAEA to verify the processes of dismantling and destruction of the nuclear explosive devices, as well as the destruction or conversion of the facilities for their production). 208. See Treaty of Tlatelolco, supra note 36, art. 1; Treaty of Rarotonga, supra note 43, art. 3; Treaty of Bangkok, supra note 50, art. 3; Treaty of Pelindaba, supra note 56, art. 5; Treaty of Semipalatinsk, supra note 66, art. 5; see also Lewis 2013, supra note 13, at 447; Fahmy & Lewis 2011, supra note 84, at 44. 209. See Treaty of Semipalatinsk, supra note 66, art. 5. 210. See 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶ 37; NPT, supra note 5, art. IV. 211. See, e.g., Michael R. Gordon, Kerry Presses Iranians to Prove Nuclear Work is for Peaceful Purposes, N.Y. TIMES, Jan. 24, 2014, http://www.nytimes.com/2014/01/25/world/middleeast/kerry- presses-iranians-to-prove-nuclear-work-is-for-peaceful-purposes.html?_rϭ0. 212. See Lewis 2013, supra note 13, at 447; Fahmy & Lewis 2011, supra note 84, at 44; 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶ 33 (referring to stationing of nuclear explosive devices within a future Middle East NWFZ by external states). Under the terms of the Treaty of Semipalatinsk, “stationing” is deﬁned as “implantation, emplacement, stockpiling, storage, installation and deployment” of nuclear weapons. Treaty of Semipalatinsk, supra note 66, art. 1(c).

2014] 351 GEORGETOWN JOURNAL OF INTERNATIONAL LAW zonal states to decide for themselves whether to allow visits by foreign ships or aircrafts carrying WMD to ports and airﬁelds within the zone’s territory.213 One seemingly contentious issue could be how to handle U.S., Russian, and other foreign air force bases scattered across the region, many of which presumably can accommodate nuclear-capable bombers. This issue, however, could possibly be resolved either through additional bi-lateral agreements with the foreign powers or through the negative security assurances contained in future protocols to the WMDFZ treaty. Along with providing for safe disposal of radioactive material214 and chemical and biological weapons waste, the treaty should also address concerns over the transfer of WMD to non-state actors. Similar to the Treaty of Rarotonga, the Middle East treaty should prohibit the transfer of WMD technology to all external states, unless the transfer is of equipment and materials for peaceful purposes.215 A similar provision would also ban the transfer of all WMD technology to non-state actors.216 This could reiterate the obligations of UNSC Resolution 1540, which commits parties to implement and enforce appropriate and effective controls against the proliferation of WMD and their delivery systems to non-state actors.217 Such a provision would be of particular importance to Israel, which has frequently confronted Iranian and Syrian arms shipments to Hezbollah and Hamas.218 Finally, to calm fears over attacks on nuclear sites, much like the

213. See Treaty of Rarotonga, supra note 43, art. 5; Treaty of Bangkok, supra note 50, art. 7; Treaty of Pelindaba, supra note 56, art. 4; Treaty of Semipalatinsk, supra note 66, art. 4; see also Lewis 2013, supra note 13, at 447; Fahmy & Lewis 2011, supra note 84, at 47. For example, the relevant language in the Treaty of Pelindaba allows each state to “decide for itself whether to allow visits by foreign ships and aircraft to its ports and airfields, transit of its airspace by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic waters in a manner not covered by the rights of innocent passage, archipelagic sea lane passage or transit passage of straits.” Treaty of Pelindaba, supra note 56, art. 4. 214. See, e.g., Treaty of Rarotonga, supra note 43, art. 7. 215. See Treaty of Rarotonga, supra note 43, art. 4. 216. The scope of the terms “transfer” and “non-state” actors would require further clarifica- tion, however, this is beyond the scope of this Note. 217. S.C. Res. 1540, ¶¶ 1-3, U.N. Doc. S/RES/1540 (Apr. 28, 2004); see also Shaker, supra note 189, at 43. 218. See, e.g., Ruth Eglash, Israel says it stopped Iranian arms shipment destined for Gaza Strip, WASH.POST (Mar. 5, 2014), http://www.washingtonpost.com/world/middle_east/israel-says-it- stopped-iranian-arms-shipment-destined-for-gaza-strip/2014/03/05/0614bd20-a46f-11e3-8466- d34c451760b9_story.html; Ilan Ben Zion, Israeli jets reportedly struck arms shipment en route to Hezbollah, TIMES OF ISRAEL (Feb. 24, 2014), http://www.timesofisrael.com/israeli-jets-reportedly- strike-targets-near-lebanon-syria-border/.

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Treaty of Pelindaba, the Middle East treaty should prohibit states from taking, assisting, or encouraging any action aimed at an armed attack by conventional or other means against nuclear installations in the region.219 As has occurred between India and Pakistan, to aid in the enforcement of this provision, Middle East states could exchange lists of their respective civilian nuclear-related facilities, which could be veriﬁed by the IAEA.220

C. Verification For effective implementation of a Middle East zone, the member states must have confidence that their neighbors will not cheat and secretly develop the proscribed weapons. Strict verification provisions will therefore be necessary. Current NWFZ treaties envision verification mechanisms carried out at two levels: adherence to international verification instruments as well as reliance on new regional institutions. Both forms of verification will be key to a Middle East WMDFZ.221 However, given that Israel presumably has a nuclear stockpile, Iran is steadily marching toward a nuclear weapon, and the history of violence between Middle Eastern states is more recent and deadly than between any dyad in the current zones, verification and enforcement in a Middle East zone must be more ambitious and comprehensive than those for any existing NWFZ. At the first level, participating zonal states should be required to cooperate with existing international organizations for verification and enforcement in order to destroy WMD or, at least in the interim period before destruction, place the weapons under sufficient controls. This concept was recognized in a 1975 UNGA resolution, which defined NWFZs as requiring, “[a]n international system of verification and control...toguarantee compliance with the obligations deriving from

219. Lewis 2013, supra note 13, at 448; Fahmy & Lewis 2011, supra note 84, at 47; see Treaty of Pelindaba, supra note 56, art. 11; Stott, supra note 65, at 17. Precedent for such a provision can be drawn from the 1988 India-Pakistan “non-attack” agreement for nuclear facilities, which prohibits attacks against “nuclear power and research reactors, fuel fabrication, uranium enrichment, isotopes separation and reprocessing facilities as well as any other installations with fresh or irradiated nuclear fuel and materials in any form and establishments storing signiﬁcant quantities of radioactive materials.” Agreement Between India and Pakistan on the Prohibition of Attack Against Nuclear Installations and Facilities, India-Pak., ¶ 1, Dec. 31, 1988, available at http:// cns.miis.edu/inventory/pdfs/aptindpak.pdf. 220. See India-Pakistan Non-Attack Agreement, NTI, http://www.nti.org/treaties-and-regimes/ india-pakistan-non-attack-agreement/ (last visited Apr. 4, 2014). 221. FORADORI &MALIN 2012, supra note 2, at 23.

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[the NWFZ treaty].”222 For nuclear verification, turning to the IAEA for safeguarding should be required.223 This means mandating adherence to full-scope IAEA safeguards,224 supplemented by regular exchanges of information.225 The treaty could also explicitly require adherence to the IAEA Additional Protocol,226 as does the Treaty of Semi- palatinsk.227 The IAEA could also be called on to assist with verifying the dismantling of Israel and Iran’s current nuclear facilities, similar to the verification that occurred in South Africa and Libya.228 And, once (or if) the CTBT enters into force, the Comprehensive Test Ban Treaty Organization could be relied upon to verify the ban on nuclear tests.229 For chemical weapons, the OPCW should oversee verification of CWC declarations, facilitating inspections and monitoring of zonal states’ chemical weapons destruction, facilities, and activities as it has done with Syria and Libya.230 And should an international biological weapons verification organization be established, it too could assist in verification. Along with international organizations, integrated monitoring and

222. G.A. Res. 3472 (XXX)(B), supra note 18. 223. 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶ 34 (“A nuclear- weapon-free zone should provide for the effective verification of compliance with the commitments made by the parties to the treaty, inter alia, through the application of full-scope IAEA safeguards to all nuclear activities in the zone.”); FITZPATRICK, supra note 121, at 13; Fahmy & Lewis 2011, supra note 84, at 46. 224. IAEA, The structure and content of agreements between the Agency and states required in connection with the Treaty on the Non-Proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/153 (corrected), June 1972. 225. See Treaty of Tlatelolco, supra note 36, arts. 13-14; Treaty of Rarotonga, supra note 43, art. 8, Annex 2; Treaty of Bangkok, supra note 50, arts. 5, 10-11; Treaty of Pelindaba, supra note 56, arts. 12-13, Annex II; Treaty of Semipalatinsk, supra note 66, art. 8. 226. IAEA, Model protocol additional to the agreement(s) between states(s) and the International Atomic Energy Agency for the application of safeguards, IAEA Doc. INFCIRC/540 (corrected) (Sept. 1997). 227. Treaty of Semipalatinsk, supra note 66, art. 8. 228. FITZPATRICK, supra note 121, at 13; Ollie Heinonen, The Middle Eastern Weapons of Mass Destruction Free Zone (WMDFZ)—Nuclear Verification, paper presented at the workshop on “Verifica- tion in the 21st Century,” Wilton Park, U.K., July 16, 2012; FORADORI &MALIN 2012, supra note 2, at 25. South Africa’s dismantlement was conducted unilaterally, but verified by the IAEA after the NPT safeguards agreement entered into force. FORADORI &MALIN 2012, supra note 2, at 25. Similarly, verification of Libya’s 2004 nuclear disarmament was based on the NPT safeguards agreement and the additional protocol. Id. A similar approach should be considered for a Middle East WMDFZ verification process. Id. 229. See Comprehensive Nuclear-Test-Ban Treaty (CTBT), NTI, http://www.nti.org/treaties-and- regimes/comprehensive-nuclear-test-ban-treaty-ctbt/ (last visited Apr. 4, 2014). 230. See FITZPATRICK, supra note 121, at 13.

354 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST verification of a WMDFZ treaty should also come from a regional body.231 As previously discussed in Section V.B.2 of this Note, the foundations for such an organization could perhaps be established via a regional security forum that is created during negotiations leading up to the WMDFZ.232 Existing NWFZs and other security arrangements can serve as instructive models. For example, the Latin American zone created the inter-governmental Agency for the Prohibition of Nuclear Weapons in Latin America (OPANAL), tasked with overseeing additional verification mechanisms and ensuring that the obligations of the treaty are met.233 Similarly, Article 12 of the Treaty of Pelindaba founded the African Commission on Nuclear Energy (AFCONE) to verify compliance with that treaty (though the commission is not yet fully operation).234 Similar models for regional nuclear verification are the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials (ABACC)235 and the European Atomic Energy Community (EURATOM),236 though these agencies may not be directly applicable given that they were not designed to confirm the absence of unde- clared nuclear material and activities.237 Building on the aforementioned experiences, a “Middle East Re- gional Security Commission” (MERSC) should work closely with the IAEA and the OPCW to oversee regional verification of WMD disarmament.238 In addition to monitoring, gathering information, and orga- nizing on-site inspections (either independently or in cooperation with the IAEA and OPCW), the MERSC could facilitate joint exercises and serve as the institutional body for regional security dialogue.239 The organization could also be tasked with verifying that zonal states do not

231. Lewis 2013, supra note 13, at 448; Heinonen, supra note 228; FORADORI &MALIN 2012, supra note 2, at 23; Fahmy & Lewis 2011, supra note 84, at 47; HAMEL-GREEN 2005, supra note 37, at 18. 232. Shaker, supra note 189, at 44. 233. Treaty of Tlatelolco, supra note 36, art. 7. 234. Treaty of Pelindaba, supra note 56, art. 12, Annex III; see Stott, supra note 65, at 21-23. 235. ABACC, http://www.abacc.org.br/?page_idϭ5&langϭen (last visited Apr. 4, 2014). 236. Nuclear Energy: European Atomic Energy Community (EURATOM),EUR.COMM’N, http:// ec.europa.eu/energy/nuclear/euratom/euratom_en.htm (last visited Sept. 28, 2014); see Gre´goire Mallard, Can the EURATOM Treaty Inspire the Middle East? The Political Promises of Regional Nuclear Communities,15NONPROLIFERATION REV., no. 3, 459-477 (2008). 237. Heinonen, supra note 228. 238. Shaker, supra note 189, at 44. 239. See Fahmy & Lewis 2011, supra note 84, at 47-48 (proposing a “Commission on Nuclear Energy in the Middle East” as a substantive body to gather information, interact with the IAEA, and be able to call for IAEA clariﬁcation, technical visits, and inspections).

2014] 355 GEORGETOWN JOURNAL OF INTERNATIONAL LAW stockpile certain components of nuclear, chemical, or biological materials in sufficient quantities such that they could quickly be converted for military use, as well as ensuring that dual-capable components are used exclusively for peaceful purposes.240 Finally, either the MERSC or a subcommittee should be established to foster regional efforts to combat terrorism and WMD nonproliferation to non-state actors. Such a system could be modeled after the UNSC Resolution 1540 Committee241 or the Global Initiative to Combat Nuclear Terrorism (GICNT).242 Although requiring all of these verification mechanisms at once may be too ambitious,243 the more measures that can be implemented to instill confidence between the deeply suspicious Middle Eastern states, the more feasible it is for a WMDFZ treaty to gain sufficient acceptance.

D. Compliance and Dispute Resolution A related, and equally important, issue to veriﬁcation is the challenge of addressing non-compliance within the future WMDFZ. Article 52 of the U.N. Charter obliges states entering into treaties to “make every effort to achieve paciﬁc settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.”244 Article 53 further declares that any

240. As with the AFCONE, the MERSC should be funded by the parties to the treaty, though it could accept additional funds from outside sources “provided such donations are consistent with the purposes and objectives of the Treaty.” See Treaty of Pelindaba, supra note 56, Annex III, ¶4. 241. Composed of fifteen members, and assisted by a group of experts, the 1540 Committee provides awareness of Resolution 1540 and its requirement, responds to requests for assistance, and assesses the status of the resolution’s domestic implementation. Frequently Asked Questions on UNSC Resolution 1540 (2004), 1540 COMM., http://www.un.org/en/sc/1540/faq/facts.shtml#6 (last visited Apr. 17, 2014). 242. GICNT is an international partnership of eighty-five nations and four official observers, co-chaired by the United States and Russia, which collaborates on nuclear nonproliferation, counterproliferation, and counterterrorism strategy. U.S. DEP’TOFSTATE,FACT SHEET:GLOBAL INITIATIVE TO COMBAT NUCLEAR TERRORISM, http://www.state.gov/documents/organization/ 145499.pdf (last visited Sept. 28, 2014). Although GICNT already includes several Middle East countries, such as Israel, Jordan, and Saudi Arabia, one proposal would be to expand the scope of the partnership to include all relevant Middle East countries and to encompass all forms of WMD. ALBRIGHT ET AL., supra note 112, at 80. 243. During the Cold War, for example, the United States and Soviet Union frequently disagreed over whether verification measures should be implemented before or after negotiated arms control limits. See generally,JAMES A. SCHEAR, Cooperative Measures of Verification: How Necessary? How Effective?, in VERIFICATION AND ARMS CONTROL 7-35 (William C. Potter ed., 1985). 244. U.N. Charter art. 52, para. 2.

356 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST enforcement action taken under regional agreements must be done with UNSC authorization.245 All existing NWFZ treaties contain compliance and dispute settlement procedures with different levels of complexity.246 However, some may not be sufficiently robust for a Middle East WMDFZ. For example, the Treaty of Rarotonga relies only on dispute resolution between complaining parties, which can culminate in the regional “Consultative Committee” directing special inspections.247 Dispute resolution under the Treaty of Semipalatinsk is even less complex, wherein parties merely settle disputes through negotiations or “by other means as may be deemed necessary by the Parties.”248 Instead, what makes more sense for the Middle East is something more akin to the Bangkok and Pelindaba treaties, which rely on a combina- tion of bilateral dispute resolution, complaints before their respective regional organizations, and referral to the IAEA or the UNSC as a last resort.249 A complaints procedure in a Middle East WMDFZ treaty could take shape around the following outline. Any dispute would first be negotiated between the parties themselves. If this fails, the complaining party would bring the matter before the MERSC (or a regional dispute resolution organ), which could send its own emergency fact- finding mission or request that the IAEA or OPCW conduct special inspections along with MERSC representatives. If inspections indeed confirm that a treaty breach has occurred, zonal parties would convene an emergency conference and vote on whether the situation merits referral to the UNSC. Voting in the Middle East commission on compliance issues could also be a challenge in of itself. Although the United States would likely protect Israel at the UNSC (should disputes reach that stage), if the MERSC indeed could call for emergency inspections, or especially if it could punish parties found in breach of the WMDFZ treaty (such as through coordinating economic sanctions), Israel would likely voice concern that it would be singled out by the vast majority of Arab states. Therefore, to gain Israel’s support of a final treaty, a voting mechanism should be considered that would grant Israel more minority power

245. U.N. Charter art. 53, para. 1. 246. See Treaty of Tlatelolco, supra note 36, arts. 9, 20, 24; Treaty of Rarotonga, supra note 43, arts. 9-10, Annex 4; Treaty of Bangkok, supra note 50, arts. 8, 10, 12-14, 20; Treaty of Pelindaba, supra note 56, art. 15, Annex VI; Treaty of Semipalatinsk, supra note 66, arts. 10-11. 247. Treaty of Rarotonga, supra note 43, Annex 4. 248. Treaty of Semipalatinsk, supra note 66, art. 11. 249. See Treaty of Bangkok, supra note 50, arts. 8, 10, 12-14, 20; Treaty of Pelindaba, supra note 56, Annex VI.

2014] 357 GEORGETOWN JOURNAL OF INTERNATIONAL LAW when faced with complaint proceedings. Existing NWFZ treaties unfor- tunately offer no help, given that those that rely on regional voting bodies dictate one-vote per member, and require either simple or two-thirds majorities for major decisions.250 Similarly, a requirement of consensus, modeled after the UNSC,251 would be counterproductive, as it would stymie most decision-making through the power of the veto. Despite the inapplicability of many existing treaties, there are a few voting models that could potentially alleviate Israel’s concerns. One possible structure could draw from the Law of the Sea Conven- tion (LOSC)252 and the rules governing the International Seabed Authority (the Authority).253 There, the Authority’s decision making body (the Council) is set up on a chambered voting system in which any one of the four chambers of states, each composed of several states with similar characteristics (for example, there is a chamber of developed states), can block major actions by the Council (which requires the chambers to be unanimous).254 Instead of a “one nation one vote” system dominated by developing countries, the idea was that where the United States would not have a consensus veto, it, along with only a few developed nations could still veto decisions by the Authority.255 Such a system could be used in a Middle East WMDFZ commission, in which Israel could be granted similar “chamber” power for major decisions over compliance, yet not an explicit veto. Another model could be analogous to corporate equity voting,

250. See, e.g., Treaty of Tlatelolco, supra note 36, art. 9 (dictating voting for OPANAL’s General Conference as one vote per member, and requiring two-thirds majority for controls decision), art. 10 (requiring a simple majority for decisions by OPANAL’s Council); Treaty of Rarotonga, supra note 43, Annex 3 (requiring a two-thirds majority for decisions by the Consulta- tive Committee); Treaty of Bangkok, supra note 50, arts. 8-9 (requiring two-thirds majority for decisions by the Commission for the Southeast Asia NWFZ); Treaty of Pelindaba, supra note 56, Annex III (requiring two-thirds majority for decisions by AFCONE). 251. U.N. Charter art. 27, para. 2. 252. UNCLOS, supra note 76. 253. Agreement Relating to the Implementation of Part XI of the United Nations Conven- tion on the Law of the Sea of 10 December 1982, adopted July 28, 1994, 1836 U.N.T.S. 3 [hereinafter Part XI Implementation Agreement]. 254. Id. Annex § 3(2), (9)(a), (15)-(16); John E. Noyes, The Common Heritage of Mankind: Past, Present, and Future,40DENV.J.INT’L L.&POL’Y 447, 464 (2012). 255. United States Adherence to the Law of the Sea Convention: A Compelling National Interest: Hearing Before the H. Comm. on Int’l Relations, 108th Cong. 14 (May 12, 2004) (testimony of John Norton Moore, Professor, University of Virginia), available at http://www.virginia.edu/colp/ pdf/house-testimony.pdf. The chambered voting system was one of several changes to LOSC that was included in the Part XI Implementation Agreement in order to persuade developed states to accept the convention before it entered force. John E. Noyes, supra note 254, at 463.

358 [Vol. 46 HOW TO ACHIEVE A WMD-FREE ZONE IN THE MIDDLE EAST whereby corporations often issue different classes/tiers of stock (pre- ferred and common) to shareholders. Such a system allows different parties to have different voting rights and for certain minority shareholders (in this case Israel) to have disproportionate power to make decisions in certain contexts.256 Finally, a “qualiﬁed voting” mechanism could also be considered, similar to former and current systems used by the Council of the European Union that grant different voting weight to countries based on population.257 Although a population-based system would surely put Israel at a severe disadvantage, if the qualiﬁed system were instead based on Gross Domestic Product (GDP) per capita, Israel would have an advantage.258 Such a system perhaps could also give Middle Eastern countries with lower per capita GDPs incen- tives to improve their domestic economies.

E. Additional Protocols and Security Assurances In conjunction with interim security guarantees discussed in Section V.B.4, a future Middle East WMDFZ treaty should include protocols outlining legally binding negative and positive security assurances to be signed and ratiﬁed by external states and NWS.259 Negative guarantees would commit external states to respect the status of the WMDFZ, undertake not to use or threaten to use WMD (especially nuclear) against any state party to the treaty or any territory within the zone, and not to contribute to any act that would constitute a violation of the treaty or its protocols.260 Despite the current reticence of NWS to ratify the additional protocols of existing treaties, obtaining such external guarantees will be critical for securing necessary regional participation in a Middle East treaty—just as similar external security

256. See DEL.CODE ANN. tit. 8, § 151 (West 2014); MODEL BUS.CORP.ACT §§ 6.01, 6.02 (2008). 257. Glossary: Qualified Majority, EUROPA, http://europa.eu/legislation_summaries/glossary/ qualified_majority_en.htm (last visited Apr. 5, 2014). 258. See GDP per capita (current US$),THE WORLD BANK, http://data.worldbank.org/indicator/ NY.GDP.PCAP.CD/countries/1W?displayϭdefault (last visited Apr. 5, 2014). 259. See Shaker, supra note 189, at 44; Lewis 2013, supra note 13, at 449; FORADORI &MALIN 2012, supra note 2, at 27; Fahmy & Lewis 2011, supra note 84, at 48; 1999 Disarmament Commission Report, supra note 2, at Annex I, ¶¶ 14, 25, 36. 260. Shaker, supra note 189, at 44. Negative security assurances are included in all existing state NWFZ treaties. See Treaty of Tlatelolco, supra note 36, Additional Protocol II; Treaty of Rarotonga, supra note 43, Additional Protocols I-II; Treaty of Bangkok, supra note 50, Protocol to the Treaty on Southeast Asia Nuclear Weapon-Free Zone, arts. 1-2; Treaty of Pelindaba, supra note 56, Additional Protocols I-III; Treaty of Semipalatinsk, supra note 66, art. 3; see also G.A. Res. 3472 (XXX)(B), U.N. Doc. A/RES/3472 (Dec. 11, 1975) (defining NWFZs to include security assurances by NWS).

2014] 359 GEORGETOWN JOURNAL OF INTERNATIONAL LAW assurances were critical in achieving the existing NWFZs.261 In addition to negative guarantees, the Middle East treaty should encourage NWS and external powers to ratify positive assurances, whereby the external powers agree to come to the aid of a regional state under certain circumstances.262 Although the term “aid” could deliber- ately be left ambiguous in the treaty,263 in practice it could entail commitments to provide diplomatic support, humanitarian aid, or even military assistance to a state victim of an act of WMD aggression, as well as economic and trade sanctions against the attacker.264 It should be noted, however, that these guarantees could be more difficult to provide than negative guarantees, both because of the imposed affirma- tive obligations and because they involve commitments to assist a state facing future ill-defined and/or unpredictable situations.265 Further- more, such positive guarantees could risk violating the sovereignty of the receiving country if the external guarantor country perceives it as its right to pressure the receiving country to accept assistance.266

VII. CONCLUSION As it stands, it is hard to remain optimistic about the prospects for achieving a Middle East WMDFZ, let alone convening a substantive regional conference on the establishment of a zone. In many ways the process mirrors the status of the Israeli-Palestinian conﬂict, where mere agreement on the framework for negotiations is barely attainable.267

261. See Matthew Fuhrmann & Xiaojun Li, Legalizing Nuclear Abandonment: The Determinants of Nuclear Weapon Free Zone Treaty Ratification 2 (Harvard Kennedy School, Managing the Atom Working Paper, 2008), available at http://belfercenter.hks.harvard.edu/files/Legalizing %20Nuclear%20Abandonment.pdf (explaining that such negative guarantees are especially important for states that expect to be engaged in militarized conflict with external nuclear powers); FORADORI &MALIN 2012, supra note 2, at 28 (explaining that one of the reasons the 1992-1995 ACRS talks failed was because of the lack of sustained American and international commitment); IAEA 2011 Forum, supra note 114, at 5. 262. UNODA 1991, supra note 92, ¶¶ 134, 137; Shaker, supra note 189, at 44. 263. Deliberate ambiguity could prevent situations where, for example, the United States would technically be required to provide aid to less-than-favorable countries such as Iran. 264. See UNODA 1991, supra note 92, ¶¶ 137, 139. 265. See UNODA 1991, supra note 92, ¶ 137; Ibrahim Othman & Maha Abdulrahim, Establishment of a Zone Free of Mass Destruction Weapons in the Region of the Middle East: Requirements and Constraints, in BUILDING A WEAPONS OF MASS DESTRUCTION FREE ZONE IN THE MIDDLE EAST:GLOBAL NON-PROLIFERATION REGIMES AND REGIONAL EXPERIENCES 110 (UNIDIR ed., 2004). 266. Othman & Abdulrahim, supra note 265, at 110-11. 267. See Anne Gearan & William Booth, Kerry: Mideast peace talks need ‘reality check,’ WASH. POST (Apr. 4, 2014), http://www.washingtonpost.com/world/kerry-peace-talks-need-reality-check/ 2014/04/04/6d982352-bc01-11e3-96ae-f2c36d2b1245_story.html.

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The Middle East does not seem ready for a comprehensive, multilateral arms control regime, especially as the region’s political landscape seems to shift on a daily basis. However, a lack of readiness does not mean that change cannot and should not occur. Despite the sensitivities and complexities that have long plagued Middle East actors, there still is the chance that this Gordian knot can be broken at some point. When that point will occur is not clear; however, the goal of removing nuclear, chemical, and biological weapons from the Middle East is critically important. The governments and citizens of the region know well the risks and horrifying effects WMD impose on humanity. As has been clear from the recent Syrian conflict, as long as such weapons exist (especially in the hands of governments or extremist groups willing to use them) the next deadly crisis could only be a day away.268 Neutralizing this specter should thus serve as a powerful incentive for Middle East leaders to put aside historical rivalries and take bold steps toward eliminating WMD. The fact that all key governments in the region still continue to assert that attaining a WMDFZ is an appropriate aspiration is a sign that incremental progress can be accomplished. Although any agreement on the technical components of a final treaty is unlikely to be realized in the short-term, at a minimum, the parties (with the support of the NWS) should convene a regional conference to discuss the implementation of shorter-term CBMs and less-sweeping nonproliferation objectives. The negotiation process itself could reveal new avenues to progress. Behind it all, regional dialogue should continue (at least in a Track Two setting) about the elements and central questions of a future WMDFZ, especially a comprehensive verification and compliance system. Maintaining such a steady pulse of serious and concerted negotiations is crucial, because no matter how utopian a Middle East free of WMD may sound today, should the right opportunity, conditions, and forward-thinking leader- ship eventually emerge, the parties in the region should be able to seize them for the benefit of global peace and security.

268. See Elise Labott, U.S.: signs point to Syria using chlorine gas in attacks, CNN (Apr. 21, 2014), http://www.cnn.com/2014/04/21/world/meast/syria-chemical-u-s-/.

2014] 361