Global Lockdown: Moving the Needle on Nuclear Security November 2010 Dr

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Global Lockdown: Moving the Needle on Nuclear Security November 2010 Dr. Elizabeth Turpen Dr. Elizabeth “Libby” Turpen is a Lead Associate at Booz Allen Hamilton where she is involved in the nonproliferation policy and programmatic efforts at the Department of Defense, Department of Energy, and Department of Homeland Security. From 2001 to 2009, she was the codirector of the Cooperative Nonproliferation Program at the Stimson Center and director of the Security for a New Century Program. Prior to joining Stimson, she served in the Office of Senator Pete V. Domenici (R-NM) as a legislative assistant responsible for defense, nonproliferation and foreign affairs. Dr. Turpen has taught at Georgetown University and is currently an adjunct professor at George Washington University’s Elliott School of International Affairs. She holds a Ph.D. from the Fletcher School of Law and Diplomacy at Tufts University and a BA from the University of New Mexico.

From Prague Commitment Communiqué to the DC Communiqué The communiqué sets forth the broad objectives regarding nuclear security catalyzed by the summit. The commu- President Obama’s historic address on April 5, 2009, niqué begins by stating the shared goals of summit partic- announcing his vision of a world free of nuclear ipants: nuclear disarmament, nuclear nonproliferation, weapons was met with applause and a serious dose of and peaceful uses of nuclear energy. This commitment skepticism. Proponents and skeptics alike agreed, mirrors the “three pillars” of the nonproliferation regime however, that his commitment to secure vulnerable embodied in the Nuclear Non-Proliferation Treaty (NPT). fissile materials would amount to a great leap In the same line, however, the participating states also forward for US national security and would assuage declare their shared objective of “nuclear security,” essen- mounting international concerns regarding nuclear tially adding this dimension to the nuclear agenda terrorism. The speech outlined many steps toward amongst a formidable grouping of states.4 The commu- fulfilling the vision of a world free of nuclear niqué also encompassed the following: weapons in light of this threat, including the president’s commitment to host a Nuclear Security Summit • Efforts to improve security and accounting of mate- (NSS) within the year. This objective culminated in an rials and strengthen regulations—with a special focus unprecedented summit of leaders from 46 countries, on plutonium and highly enriched uranium (HEU). including 38 heads of state, and representatives of the United Nations, the International Atomic Energy • Consolidation of HEU and plutonium stocks and a Agency, and the European Union in Washington, DC, reduction in the use of HEU. on April 13, 2010.1 • Promotion of the “universality” of key treaties on The April 2010 summit also featured numerous bilateral nuclear security and nuclear terrorism. meetings between President Obama and heads of state, including those of China, India, Ukraine, Kazakhstan, • The role of the Global Initiative to Combat Nuclear and Pakistan, in addition to other meetings between US Terrorism (GICNT) in capacity building among law officials and their counterparts.2 The meeting resulted enforcement, industry, and technical personnel. in a communiqué, a work plan, and numerous unilateral declarations setting forth countries’ commitments • A call for additional resources affording the to meeting the four-year goal of securing vulnerable International Atomic Energy Agency (IAEA) to fissile materials and responding to the threat of develop and facilitate implementation of nuclear nuclear terrorism.3 security guidelines.

Policy Analysis Briefs are thought-provoking contributions to the public debate over peace and security issues. The views expressed in this brief are those of the author and not necessarily those of the Stanley Foundation. The author’s affiliation is listed for identification purposes only. 2 • A push for the nuclear industry to share best dimension” (i.e. personnel capacity and security practices. culture) of the nuclear terrorism threat.

Significantly, in terms of instituting a process to When viewed in tandem, the NSS Communiqué maintain momentum on this agenda, South Korea and Work Plan establish an embryonic but evolving agreed to host a summit in 2012, and the NSS framework for an international nuclear security sherpas are scheduled to meet again in November regime based largely on existing treaties and multi- of 2010. lateral instruments, some of which have yet to enter into force and others that are still being negotiated. Work Plan As high-level US officials noted prior to the summit, The NSS Work Plan details the specific facets of the international community has no appetite for source security and nuclear controls being creating a “new regime” to specifically address sought in order to achieve and sustain the nuclear material security. In light of nuclear security communiqué’s overarching objectives. The work being a closely held issue of national sovereignty, plan also sets forth nonspecific commitments and the lack of desire for a new regime specific to related to various efforts and initiatives to nuclear materials, the efficacy of the administra- promote progress while connoting shared tion’s approach in this context is a critical issue. responsibility. It stipulates that all participating After a brief review of the preexisting instruments states will work to ratify, implement, and ensure and initiatives encompassed by the summit docu- compliance with the numerous conventions, ments, the discussion will turn to the remaining resolutions, and multilateral mechanisms perti- gaps within this architecture and an assessment of nent to nuclear security. The shared responsi- potential measures to promote progress and close bility comes in the form of an ill-defined those gaps. commitment of requests for, and offers of, assistance amongst the states in attendance. The Instruments and Initiatives conventions, resolutions, and initiatives that The following offers a brief description of the received mention include: treaties and instruments mentioned in the commu- niqué and work plan in order to delineate the obli- • International Convention for the Suppression of gations encompassed by the Nuclear Security Acts of Nuclear Terrorism (ICSANT). Summit documents and to expose potential limita- tions or opportunities for progress in achieving • Convention on the Physical Protection of Nuclear the summit’s nuclear security objectives. Material (CPPNM). International Convention on • UN Security Council Resolution 1540 (Resolution Suppression of Nuclear Terrorism 1540). Arising from a 1996 report of the UN secretary- general and a draft convention proposed by the • Global Initiative to Combat Nuclear Terrorism Russian Federation, an ad hoc committee was (GICNT). established to close substantial gaps in the 1980 Convention on the Physical Protection of Nuclear In addition, the work plan includes strong support Materials in countering potential acts of nuclear for the work of the IAEA in providing technical terrorism and responding to an act of nuclear assistance to states and promulgating best practices, terrorism. The Russian Federation’s explanatory including a call for quick completion of the fifth note to the draft convention claimed it was the revision of Information Circular 225 on “The first international legal instrument designed as a Physical Protection of Nuclear Material and “pre-emptive instrument” in addressing nuclear Nuclear Facilities,” (INFCIRC/225). The work plan terrorism. Adopted on April 13, 2005, by the UN further promotes consolidation of materials, secure General Assembly, ICSANT has been ratified by transport, and reduction in HEU use. It also places 67 of the 115 states parties to the convention and special emphasis on separated plutonium and other entered into force with the first 22 states’ ratifica- radioactive substances. Finally, highlighted in the tion in July of 2007.5 Specifically, ICSANT includes document is the need for a robust, independent a broader definition on materials and facilities regulatory infrastructure, the critical role of the covering both military and peaceful applications nuclear industry, as well as attention to the “human than the one in the Convention on the Protection of Nuclear Materials; criminalization of plan- these important additional measures in the 3 ning, threatening, or carrying out acts of nuclear amended convention, it has been ratified by only terrorism through domestic legislation and the 26 parties—far shy of the two-thirds necessary for establishment of penalties proportionate to the its entry into force.11 gravity of such crimes; conditions under which states may establish jurisdiction for offenses and UN Security Council Resolution 1540 guidelines for extradition and other measures of The events of September 11, 2001, ushered in an punishment; and a requirement for states to take acute and widespread awareness of the potential all practicable measures to prevent and counter destructive means available to nonstate actors and preparations for offenses inside or outside of gave rise to multiple new initiatives. Less than three their territories.6 weeks later, on September 28, 2001, the UN Security Council passed Resolution 1373 requiring The convention is specific to the acts of individ- all UN member states to take steps to combat uals and, therefore, does not cover the activities terrorism. Resolution 1373’s passage marks the of armed forces during a military conflict or exer- first time since its formation in 1945 that the cise. Although it does not include a definition of Security Council invoked its Chapter VII authority terrorism, the convention’s provisions include to legislate a functional, rather than state-specific, acts with nuclear and radiological sources or threat to international peace and security. The those pertaining to the use or threat of use to measures called for in Resolution 1373, however, damage to nuclear facilities or installations. were insufficient to close loopholes in the treaty regime regarding the potential role of nonstate Convention on the Physical actors. The ensuing revelations about the A. Q. Protection of Nuclear Material Khan network throughout 2003 and early 2004 The CPPNM was the first attempt to address the offered additional impetus for actions to target risk of diverted or stolen materials. Momentum WMD terrorism, and on April 28, 2004, the UN for an international agreement on the physical Security Council unanimously adopted Resolution protection of nuclear materials began with the 1540.12 This was followed by Resolutions 1673 NPT’s entry into force in 1970. This early and 1810, both of which reaffirmed the original momentum culminated in the signing of the obligations of Resolution 1540 and placed partic- CPPNM on March 3, 1980, and its entering into ular emphasis on the need for implementation. force nearly seven years later. Currently, 141 states are parties to the original convention.7 The Resolution 1540 attempted to compensate for key provisions of the original convention require the inadequacies of existing treaty measures and states to take appropriate measures to protect the specific challenge of WMD proliferation by civilian nuclear material while in international nonstate actors in a single all-encompassing transport. The convention also requires states to directive. It includes 12 points obligating all UN make the theft, misuse, or threats of misuse of member states to legislate and enforce laws nuclear material criminally punishable offenses which prohibit any nonstate actor from manufac- and either prosecute or extradite for prosecution turing, acquiring, possessing, developing, trans- alleged offenders. It also obligates states to desig- porting, transferring, or using nuclear, chemical, nate a point of contact to provide information or biological weapons and their means of should any material be stolen or diverted.8 delivery, and it also calls on them to develop and maintain effective physical protection measures, The original convention’s failure to address border controls, and law enforcement efforts to domestic use, storage, and transport of nuclear address illicit trafficking as well as the export of materials led states to question its efficacy at the sensitive items from their territory. In short, the CPPNM 1992 Review Conference.9 Three years Security Council legislated on every UN member of negotiations resulted in the July 2005 amend- state in the world extensive supply-side obliga- ment to the convention, which requires the tions to prevent WMD proliferation.13 enforcement of a physical protection regime for nuclear material to prevent theft, diversion, or Global Initiative to Combat Nuclear Terrorism sabotage and which expands nuclear security Launched jointly by Presidents Bush and Putin in provisions to include nuclear storage facilities 2006, GICNT encompasses an array of commit- and nuclear materials not in transport.10 Despite ments, such as securing nuclear material, detecting 4 illicit trafficking, interdicting diverted nuclear parallels the efficacy-to-expediency spectrum that items, and responding to nuclear terrorist inci- will be discussed below. Whereas Resolution dents, as well as criminalization and enforcement. 1540 is the most comprehensive instrument to The 82 partner states within the global initiative address the role of nonstate actors in WMD also commit to collaborate with civilian nuclear proliferation, GICNT reflects an expeditious power producers as well as with the IAEA and other “coalition of the willing” approach to advancing multilateral institutions involved in addressing the the agenda. Unfortunately, the UN- and US- safety and security of nuclear materials. Many driven efforts share four weaknesses: lack of stan- GICNT activities also emphasize the capacity- dards, questionable legitimacy, low priority, and building requirements through exchange of tech- a governance gap. nical capabilities and best practices to enhance capacities to deter, detect, prevent, and respond to Lack of Standards nuclear terrorist threats.14 Concerns over the diversion or theft of nuclear materials, the physical security of materials or GICNT relies on an Implementation and facilities, and anything associated with nuclear Assessment Group (IAG) as a coordinating body security beyond existing IAEA safeguards to facilitate implementation. IAG participants are commitments, including enforcement, has expected to take concrete measures, and, in some remained the prerogative of either the facilities cases, to assist other states in implementing the themselves or the sovereign terrain of individual GICNT Statement of Principles.15 The Statement governments. As mentioned, ICSANT and the of Principles16 lists eight core objectives: CPPNM represent the most traditional and legitimate approach, but these took 11 and 17 years, • Develop and improve accounting, control, respectively, to negotiate and bring into force. and physical protection of nuclear and other With agreement on the 2005 CPPNM amend- radioactive materials. ment, 80 states consented to new standards for protection of nuclear materials, but the standards • Enhance security for civilian nuclear facilities. agreed to are largely discretionary.17

• Improve the ability to detect nuclear and other The nontreaty approaches confront the same radioactive materials. problem. Resolution 1540 calls on states to implement “appropriate effective physical protection • Bolster capabilities to search, confiscate, and measures” to ensure security of nuclear material control unlawfully held nuclear materials. and facilities but, unfortunately, these measures remain undefined. The Statement of Principles • Deny safe haven and financial resources to poten- under the GICNT specifies goals and targets tial nuclear terrorists. potential types of activities to be undertaken, but offers no baseline regarding the level of standards • Strengthen national legal and regulatory frame- or the desired degree of participation. works against nuclear terrorism. Questionable Legitimacy • Improve capabilities to investigate, analyze, and The conventions represent the most traditional respond to an incident involving nuclear and and legitimate means to create an international other radioactive materials. nuclear security regime. Lengthy multilateral negotiation of obligations and the ratification • Augment information sharing among partici- requirements of a predetermined number of pants while protecting confidential data and states parties prior to entry into force are neces- sources. sary to achieve a truly legitimate international regime. However, such an approach is anything Impediments to Progress but expeditious. In the “race between coopera- The instruments selected as focal points for the tion and catastrophe,” as former Senator Sam NSS commitments run the gamut—from tradi- Nunn has termed it, this traditional approach tional treaty-based efforts to UN Security has taken a back seat to more expeditious, Council-legislated obligations to an initiative largely cooperative, means to address an void of an institutional framework. This range emerging and evolving challenge.18 Resolution 1540, as only the second iteration of nuclear security are a ploy to curtail others’ civil 5 the Security Council legislating functional obliga- nuclear ambitions. With all of their existing prob- tions under its Chapter VII authority, confronts a lems and other critical development priorities, legitimacy deficit. Under Chapter VII, the Security many wonder why they should divest resources to Council is given the explicit authority to decide deal with WMD proliferation. matters that constitute “a threat to the peace, a breach of the peace, or an act of aggression.” The Governance Gap However, prior to September 11, 2001, this The governance gap pertains not only to the authority was used to address state-specific chal- chronic systemic issues that plague much of the lenges to international peace. While Resolution developing world but also to donor states’ 1373, as the first iteration, has been impeded by an inability to take a holistic approach where they inability to reach consensus within the political adequately prioritize and systematically address dialogue at the United Nations on a definition of those needs. On the one hand, initiatives such as “terrorism,” Resolution 1540, in its specific GICNT list over 80 participating states, but a targeting of WMD proliferation by nonstate quick review of those listed readily indicates that actors, is not impeded by such definitional chal- many lack any real capacity to contribute to lenges. Instead, it suffers from backlash related to actual activities in the Statement of Principles. So preexisting treaty obligations, specifically those while the effort may attain near-global coverage relevant to nuclear weapons states encompassed in of “buy-in” regarding the principles, many states’ Article VI of the NPT. These claims are losing wherewithal to contribute is circumscribed by the ground over the course of time—with two subse- priority assigned to nuclear terrorism and the quent Security Council resolutions bolstering 1540 allocation of resources that follows, never mind objectives since its passage in 2004 and growing the tiered system already embedded in the effort. momentum to tackle the threat of nuclear terrorism—but the legitimacy deficit remains, even The work plan’s litany of the different dimen- if the argument is political rather than legal. sions—from legal and regulatory infrastructure to the nuclear security culture—can only be GICNT continues to gain additional participants achieved by donor states providing holistic and and its staying power and relevance are certainly properly coordinated assistance. Recognition that elevated through inclusion in the NSS documents. fundamental governance requirements may need However, it reflects a “tiered membership” of to be addressed in order to assure the viability of those participating states within the IAG and the technical assistance is a first-order priority. those outside that mirrors the debilitating reality Second, formulating partnerships to address of the nuclear nonproliferation regime itself. In mutually identified needs that are directly perti- addition, it is void of any institutional framework nent to nuclear security objectives creates requi- upon which to build a universal and obligatory site ownership of the outcomes and maximizes basis for fulfillment of its principles. donor states’ return on investment. The requirements for effective nuclear security in many Low Priority regions of the world will not be easily attainable. For a vast majority of states, the threat of nuclear Without a long-term commitment and a compre- terrorism is remote and concern about the phys- hensive approach, however, donor states’ assis- ical protection of materials or facilities is esoteric tance will not be sustainable. at best. For states in the “have not” camp regarding nuclear technology, the continuous A Framework for Assessment: trickle of UN reporting requirements and correl- Expediency, Efficacy, and Sustainability ative obligations to implement measures to Within the framework of international law, the address farfetched threats cannot garner the efficacy of the NSS hinges on two long-term priority the United States, among others, might factors: its enforceability and the establishment of desire. Worse yet, some states view UN activities some standards or practices as customary norm. on nonproliferation, such as Resolution 1540, as As an example, some scholars posited that the another exercise driven by the North’s security activities practiced under the Proliferation Security interests to the detriment of the Global South. Initiative (PSI), while currently questionable under Importantly, there remains a substantial degree of international law, would eventually achieve the suspicion amongst some states that US efforts on 6 level of customary norm through the continued crossing many months or years to arrive practice of interdiction targeting illicit transfers of at a solution to this danger [emphasis WMD-related items.19 Based on the current state of added].20 play with respect to established and enforceable standards, the nuclear security regime is a long In light of vulnerable stockpiles spanning the globe way from meeting the requirements for standing in and the metastasizing threat of nuclear terrorism, international law. Without entirely elevating the negotiating a treaty over 11 to 17 years is not an evaluation to that of a legal international frame- option. However, any avenue taken—short of work, but instead relying on less rigid assumptions inclusive negotiations of a new treaty instrument pertaining to an embryonic international nuclear that then requires several years of ratification prior security regime, the picture becomes, at once, less to entry into force—seems illegitimate. And onerous and strikingly similar. whereas in other iterations of international legal frameworks, the five permanent members of the Expediency has dictated the need for several UN Security Council also provide the “power instruments in the toolkit to address the concern filter” for what achieves global coverage (or sets related to nonstate actors and proliferation. forth the obligation), in this case they also consti- Those efforts suffer from a legitimacy deficit, tute the treaty-based legitimate nuclear weapons even though their objectives and potential impact states. This creates an additional bifurcation are laudable. The other dimension is that the within the international system for politically effort’s efficacy (i.e. legitimacy), is assumed to viable outcomes and an additional hurdle to help create a foundation for sustainability. Only attaining legitimacy in the nuclear domain. given consensus regarding the threat, baseline standards formulated by consensus, and an In some respects, expediency has severely under- enduring and widespread commitment to address mined efficacy and, therefore, sustainable outcomes it, can we assume that the effort will take root, are highly unlikely. On the other hand, to the endure, and evolve to respond to the challenge. extent that even the most legitimate form of an initiative—e.g. treaty-based instruments—remains Several issues play into an assessment of the ulti- within the confines of sovereign equality, the most mate efficacy and sustainability of “global lock- legitimate exercise in nuclear security hinges on down” based on the results of the NSS. In this political will. A Security Council resolution or a particular domain, the most expedient approaches US-launched initiative that attempts to prescribe to the threat of nuclear terrorism, such as standards and dictate obligations on nuclear Resolution 1540 and the GICNT, appear to fall security will elicit suspicion and be deemed illegit- far short. US initiatives to address nuclear imate. Although the Obama administration has terrorism have run headlong into this conundrum. offered plenty of signals regarding the US This international context and the conundrum commitment to its own treaty obligations, were depicted most accurately by former Principal whether verbalized or realized, such will be insuf- Deputy Assistant for Nuclear Nonproliferation, ficient to overcome these international divisions Andrew Semmel, regarding US support for anytime soon. UNSCR 1540: Within this context and along the efficacy- Over the three years since 9/11, the expediency spectrum, the Nuclear Security United States has looked through fresh Summit represents a hybrid. Although initiated eyes at the nonproliferation “toolbox.” by the United States, the 46 states at the summit After a frank review, we assessed that the represented broad regional coverage, advanced nonproliferation architecture… needed to nuclear states as well as civil nuclear power aspi- be reinforced and fortified by new meas- rants, the five nuclear weapons states, and those ures. We did not identify any “quick nuclear weapons states not party to the Nuclear fixes” or simple solutions for this threat. Non-Proliferation Treaty. Achieving this degree of We recognized starkly that, when it comes diversity would have been highly improbable in to the WMD threat and its correlation anything other than an ad hoc international with terrorism, time is not on our side. forum. In addition, the communiqué includes the We simply did not believe that we had the appropriate and sufficiently “legitimate” instru- luxury of our predecessors for negotiation ments from the menu of different options, and the work plan clearly recognizes the manifold facets responsibility to states and individuals for the 7 and critical actors in implementing sustainable potential damages or actual harm inflicted by measures for protecting nuclear materials and either intentional or inadvertent leakage or use of combating nuclear terrorism. Importantly, imple- nuclear materials.21 If states were held accountable mentation need not await ratification and entry for the potential or actual damage wrought by a into force of ICSANT and CCPNM in light of the nuclear or radiological device, this would spur fact that repeated Security Council resolutions them to better protect any vulnerable materials have mandated all UN member states to imple- under their authority.22 Similarly, nuclear security ment the full menu of obligations found in the personnel with access to materials would not flirt treaty-based approaches, even though the resolu- with diversion of materials for financial gain if tion’s “appropriate, effective” standard lacks defi- they could be held responsible for the material nition and its passage has yet to catalyze sufficient they handle. From this perspective, nuclear foren- action toward implementation. Now the question sics would form a means of compelling states to is: how do we spur aggressive action from here? apply all available means toward prevention, including severe punishment of individuals who Moving the Needle contribute to acts of nuclear terrorism. The legitimacy hurdle remains too high to address the nuclear material challenge at a pace Compelling states to get serious about their commensurate to the threat. In order to overcome nuclear security obligations through nuclear attri- the interrelated impediments to progress and the bution raises two major dilemmas. First, interna- gaps in the framework, creative approaches must tional efforts to create a framework for holding be found, either to offer better incentives or states accountable based on attribution are too threaten laggards with consequences for failure to nascent to provide an incentive anytime soon. comply. A brief exploration of the options for This includes formulation of a legitimate interna- promoting progress reveals some obvious pitfalls tional framework for decision making that would and potential opportunities to address these render actionable conclusions regarding the impediments and move the nuclear security source of the materials as well as what and how needle between now and the summit in South punishment would be meted or liability assessed. Korea slated for 2012. Some of these solutions, Second, the incentive to cooperate in such an however, will take much longer to show real endeavor confronts countervailing pressures impact, and there is little doubt that while taking related to eventual liability for the information stock of the progress at the 2012 summit should gained through that cooperation. In the forensics be part of the agenda, it will take many years to domain, the state asked to cooperate in forming achieve sustainable implementation of the meas- the foundation for mechanisms to make nuclear ures resulting from the 2010 summit. attribution a reality must weigh the value of that cooperation against the possibility that the mate- Although some suggest that nuclear forensics can rial interdicted or used may have originally come play a role in compelling states to take their from or transited that state. Thus, early coopera- 23 nuclear security obligations seriously and commit tion may result in future punishment. the preventive resources required, an approach focused on incentivizing political will through Whereas nuclear forensics is a critical piece of the cooperative efforts to close the governance gap future international framework for addressing and surmount the legitimacy hurdle would appear potential weaknesses in the nuclear material secu- more effective and enduring for achieving the rity domain, and certainly could play a role in objectives sought. Simultaneously, the interna- deterring states from complicity in an act of nuclear tional context would seem to preclude the estab- terrorism, its current relevance in compelling lishment of treaty-based standards at this time and compliance with NSS commitments seems ques- must rely instead on negotiating and promoting tionable. Beyond these two key dilemmas, such best practices to address this facet of the agenda. activities could again, based on technical capabilities, fall into a have and have not framework—such Nuclear Forensics: Compellence or Deterrence? as the IAG under GINCT—creating additional Policymakers and international relations theorists hurdles to achieve the level of legitimacy necessary posit that nuclear attribution via robust forensics to have impact. Given that attempts to compel capabilities would offer a means of assigning implementation would likely only generate greater 8 animosity and resistance to realization of the projects such as nuclear security and infrastructure summit’s objectives, providing incentives would destruction, CTR 2.0 will include efforts to appear, in the vast majority of cases, to be the more promote industrial chemical and biological safety effective means by which to facilitate progress. and security; counter-smuggling; counter-piracy; counter-trafficking; export controls; border secu- Synergistic Approaches? Carrot Compliance rity; maritime security; securing and eliminating In response to a 2008 congressional mandate, the excess conventional munitions; nuclear contami- National Academy of Sciences (NAS) convened a nation assessment; and emergency response plan- high-level panel to analyze “options for strength- ning and training.29 ening and expanding the Cooperative Threat Reduction (CTR) Program.”24 CTR, also known as CTR 2.0 will also aim to complement other multi- Nunn-Lugar, encompasses the efforts spurred by lateral nonproliferation efforts. The NAS study the Soviet Union’s collapse to address an array of specifically referenced Resolution 1540, PSI, and proliferation threats, physical protection of nuclear GICNT.30 Presumably, the NSS commitments weapons and materials being chief among them.25 provide a new foundation for aggressive rollout The NAS study, Global Security Engagement: A of CTR 2.0 partnerships and implementation New Model for Cooperative Threat Reduction, activities. The CTR 2.0 focus on mutually agreed- published in early 2009, praised CTR efforts by the upon objectives is a means by which to generate United States and various international partners incentives for states to implement the obligations and recommended an enhanced suite of threat set forth by the NSS documents. Such an reduction programs (known as CTR 2.0). NAS approach has the following benefits: engendering defines CTR 2.0 as “a set of programs and proj- “ownership” and therefore bolstering sustain- ects to be undertaken by the US government, as ability of the assistance rendered, focusing on the part of a cooperative network [emphasis added] capacity building that will afford states the where- that includes a wide range of countries, interna- withal to contribute more effectively to multilat- tional organizations, and nongovernment part- eral efforts in combating nuclear terrorism, and, ners, to prevent, reduce, mitigate, or eliminate most importantly, providing a critical incentive to common threats to US national security and help overcome the legitimacy deficit of existing global stability that have emerged since the end of initiatives, including the NSS objectives. the Cold War.26 While this may seem farfetched and impractical, While certain recommendations focus on US the obligations stipulated in the NSS documents governance of its programs, many suggested themselves offer key indicators of where to focus improvements apply to the global suite of threat in building partnerships to move implementation reduction activities and tools. Under CTR 2.0, forward. Effective implementation of the meas- “the preferred mechanism and long-term goal for ures set forth by the instruments highlighted in the cooperation is partnership.”27 These partner- the NSS documents includes the following essen- ships should focus on achieving mutually agreed- tial, high-level requirements: upon security goals.28 In addition to standard CTR

Source/ Legal/ Detection/ Human Policing/ Information Instrument Facility Regulatory Interdiction/ Capacity/ Enforcement Sharing Protection Infrastructure Forensics31 Culture32

ICSANT X X X X X

CPPNM X X X X X X

Resolution X X X X X 1540

GICNT X X X X X Across the suite of instruments referenced in Currently, the IAEA is providing advisory services 9 the NSS Communiqué, the underlying capacity to states on a voluntary basis to evaluate their requirements are astoundingly uniform. Obviously, infrastructure to protect materials and facilities as for effective nuclear security, these basic gover- well as to combat illicit trafficking. Additionally, nance capacities must be coupled with robust tech- the IAEA has issued 12 publications to date under nical competencies across each facet of the its Nuclear Security Series to complement and infrastructure. In light of this reality, the immediate provide further guidance to all of the instruments challenge is to make the leap from a traditional included in the NSS Communiqué. Given the focus on technology and training of immediate manifest resistance to establishing standards nuclear security personnel to taking a comprehen- within the context of international treaties or sive, integrated approach with each iteration of conventions, efforts to influence formulation of assistance. It is only through such a systems-wide baseline recommendations and promulgate best view of the relevant infrastructure, especially as it practices should focus on the role of the IAEA. pertains to the human dimension of these requirements, that sustainable results from our nuclear As one prominent example, the NSS Work Plan security assistance will be achieved. The NSS Work highlights INFCIRC/225 and urges prompt final- Plan clearly recognizes this reality in its extensive ization of its fifth revision. As a critical element of treatment of infrastructure (robust regulatory the international physical protection regime for capacity, including independent oversight and nuclear materials and facilities, INFCIRC/225 enforceable standards for industry) and its atten- provides the criteria by which physical protection tion to the “human dimension” that will support of nuclear material and facilities is evaluated by the and sustain that infrastructure. United States during assessment visits to countries holding US-obligated nuclear material and it also Real progress, both for implementation of provides the foundation for the IAEA’s International commitments made at the summit and eventual Physical Protection Advisory Service (IPPAS) effectiveness of initiatives such as GICNT, likely missions. Negotiations on the fifth revision are entails an approach that both recognizes good hoped to reach a conclusion by the end of 2010 and governance as a prerequisite to effective imple- would amount to achievement of the first goal set mentation and engenders ownership by the forth in the NSS Work Plan. The proposed participating state of the objectives sought. Such expanded scope of the revised INFCIRC/225 ownership of the obligations can be facilitated by includes: introduction of a physical protection forming partnerships to address mutually identi- regime; the rapid recovery of missing nuclear mate- fied needs, as indicated by the CTR 2.0 study, rial and mitigation of sabotage; strengthened among others. In light of the significant overlap performance testing versus prescriptive require- regarding governance capacities requisite to ments; introduction of a graded approach to take effective implementation of NSS obligations, into account the threat, relative attractiveness of including the operational capacities necessary to material, and potential consequences associated attain capable partners in adherence to GICNT with theft/sabotage; clarified use of Design Principles, closing the governance gap is essen- Basis Threat (DBT) and required use of DBT for tial. Most importantly, embracing good gover- high-consequence materials. Upon finalization, nance objectives and formulating partnerships to INFCIRC/225 should be leveraged as a baseline address these gaps will encourage ownership and for adherence to GICNT Principles and provide incentivize implementation to overcome the substantive guidance to CPPNM implementation. legitimacy deficit. The US and other NSS participants should Addressing the Standards Gap continue to promote the IAEA’s role as the stan- Recognition of the standards gap is also evident in dard bearer, even if this remains on a voluntary the NSS Work Plan’s extensive attention focused basis for the foreseeable future. This will require on the IAEA Nuclear Security Programme and the forbearance in the painstaking formulation of the guidance and recommendations being promul- recommendations and best practices that would gated through its Nuclear Security Series. The constitute baseline nuclear security standards for IAEA has deep-rooted legitimacy and is the the international community. Tighter collabora- appropriate international body to facilitate tion with the IAEA is already embedded under the formulation of nuclear security standards. GICNT, and the guidance and recommendations 10 put forward in the IAEA’s Nuclear Security Series Endnotes parallel the key instruments included within the 1 For the full list of attendees go to: http://thecable NSS Communiqué. Coupling adherence to IAEA .foreignpolicy.com/posts/2010/04/10/white_house_a recommendations, including potential IAEA nnounces_nuclear_summit_attendees. involvement in formulating a state’s nuclear secu- 2 For a full accounting see Josh Rogin, “So which rity plan, in implementation of NSS commitments world leaders scored Obama meetings next week?” would appear to be the only politically feasible Foreign Policy April 6, 2010 at: http://thecable first step in the slow march toward specific .foreignpolicy.com/posts/2010/04/06/so_which_worl nuclear security standards as a “customary d_leaders_scored_obama_meetings_next_week. 3 Significant declarations included Ukraine’s commit- norm.” Notably, this approach will also require ment to eliminate the remaining HEU within its greater capacity—financial and human—for the territory; Kazakhstan’s pledge to convert its research IAEA to tackle this dimension of the nonprolifer- reactor and eliminate HEU; Canada’s commitment ation agenda. However, it is the first best institu- to return HEU from its isotope production to the tional solution for addressing the standards gap in United States; and China and India’s commitments our efforts to tackle the threat of nuclear to establish regional nuclear security centers of terrorism. Moreover, the IAEA has made substan- excellence. For other unilateral commitments from tial contributions with insufficient means in the summit go to: http://www.fissilematerials.org addressing this aspect of the agenda. /blog/docs/100413_highlights%20of%20national% 20commitments%20at%20the%20nss.pdf. 4 This article continues to use “nuclear security” for Conclusion activities ranging from source security to detection, The NSS represents a well-thought-out and interdiction, and information sharing. This is executed experiment to strive for legitimacy with consistent with the summit documents and assumes a nontreaty, expedited forum of “like-minded” that measures targeting immediate lockdown of states. It was unilateral in its genesis, but broadly existing vulnerable materials must take into account multilateral and diverse in the collection of states the continued use and production of such materials for its delivery. The commitments it produced for the foreseeable future. For full text of the communiqué go to: http://whitehouse.blogs.foxnews provide the initial framework for an international .com/2010/04/13/nuclear-security-summit-commu- nuclear security regime in light of the overlapping nique-and-work-plan. and extensive obligations encompassed by the 5 An overview of the International Convention on the communiqué as well as the layered delineation of Suppression of Nuclear Terrorism is available in critical requirements detailed in the work plan. Inventory of International Nonproliferation These characteristics bode well for its efficacy Organizations and Regimes, Center for and, therefore, sustainability, if creative solutions Nonproliferation Studies, at: http://cns.miis.edu are found to remove the impediments to progress /inventory/pdfs/nucterr.pdf. 6 and close the remaining gaps. Ibid. 7 IAEA, The Convention on the Physical Protection of Nuclear Material, http://www.iaea.org/Publications As with any international framework, however, /Documents/Infcircs/Others/inf274r l .shtml. the efficacy of the effort boils down to the polit- 8 Maria de Lourdes Vez Carmona, “The International ical will and wherewithal of NSS participants to Regime on the Physical Protection of Nuclear aggressively implement the obligations set forth. Material and the Amendment to the Convention on Addressing the will and wherewithal can be one the Physical Protection of Nuclear Material,” and the same if taken as an opportunity to Nuclear Law Bulletin 76, 2005, 31-32. address mutually identified needs that can, at 9 Vez Carmona, “The International Regime on the once, help states address endemic governance Physical Protection of Nuclear Material and the challenges and provide the enduring foundation Amendment to the Convention on the Physical for the sustainable implementation of the obliga- Protection of Nuclear Material,” Nuclear Law Bulletin 76, 2005, 34. tions set forth by the NSS as well as preexisting 10 Twelve Fundamental Principles were also added, UN Security Council mandates. Consolidation, including physical protection should be based on elimination, and security of the most vulnerable “defense in depth,” be contingent on a Party’s eval- materials is an urgent priority. At the same time, uation of threats, and give due consideration to fulfilling the requirements for sustainable imple- security culture. IAEA, Nuclear Security - Measures mentation of the NSS commitments will help to Protect Against Nuclear Terrorism: Amendment ensure that “global lockdown” does not become to the Convention on the Physical Protection of a recurring theme in the decades to come. Nuclear Material, http://www.iaea.org/About 19 /Policy/GC/GC49/Documents/gc49inf-6.pdf. See John Yoo and Glenn Sulmasy, “The 11 11 IAEA, Nuclear Security - Measures to Protect Proliferation Security Initiative: A Model for Against Nuclear Terrorism: Amendment to the International Cooperation,” Hofstra Law Review, Convention on the Physical Protection of Nuclear Vol. 35, No. 2 (Winter 2006): 415-416. Material, http://www.iaea.org/About/Policy 20 See Remarks by Andrew Semmel regarding US /GC/GC49/Documents/gc49inf-6.pdf. support for 1540 at: http://www.nti.org/e_research 12 Olivia Bosch and Peter van Ham, “Global Non- /official_docs/dos/dos101204.pdf. Proliferation and Counter-Terrorism: The Role of 21 See Daniel H. Chivers, Bethany F. Lyles Goldblum, Resolution 1540 and Its Implications” in Global Brett H. Isselhardt, and Jonathan S. Snider, “Before Non-Proliferation and Counter-Terrorism: The the Day After: Using Pre-Detonation Nuclear Impact of UNSCR 1540 (Brookings Institution Forensics to Improve Fissile Material Security,” in Press, Washington, D.C., 2007): 2-3. Arms Control Today at: http://www.armscontrol 13 Braun and Christopher F. Chyba, “Proliferation .org/act/2008_07-08/NuclearForensics. Also, Rings: New Challenges to the Nuclear “Nuclear Terrorism: A Brief Review of Threats and Nonproliferation Regime,” International Security Responses” by Jonathan Medalia, Congressional 29, No. 2 (Fall 2004):43-44. Research Service, at: http://www.fas.org/irp/crs 14 WMD Insights, “Global Initiative to Combat /RL32595.pdf. Nuclear Terrorism: Steady, but Slow Progress,” 22 Debra Decker, “Who Pays when the Bomb Goes August 2008, accessed at: http://www.wmdin- Off?” Foreign Policy, December 2006, http://www sights.com/I26/I26_G2_GlobalInitiative.htm. .foreignpolicy.com/articles/2006/12/18/who_pays_w 15 Text of Terms of Reference for Implementation and hen_the_bomb_goes_off. Assessment, accessed at: http://collections.europ 23 Graham Allison and Debra Decker, “Before the archive.org/tna/20080205132101/fco.gov.uk/Files/k First Bomb Goes Off” (forthcoming). file/Terms%20of%20Reference%20for%20Implem 24 Congress, National Defense Authorization Act for entation%20and%20Assessment.pdf. Fiscal Year 2008, Section 1306(b)(1). 16 Specific activities for implementation may include: 25 Cooperative Threat Reduction formally applies encouraging other states to endorse the Statement only to the programs at the Department of of Principles; working to improve capabilities to Defense. Its usage in this analysis pertains to combat nuclear terrorism by providing and nonproliferation and nuclear security programs receiving assistance to partner states where appro- throughout the US government. priate to fill capability gaps; participating in or 26 Committee on Strengthening and Expanding the hosting expert-level scenario-based exercises to test Department of Defense Cooperative Threat capabilities, develop new operational concepts, and Program, National Academy of Sciences, Global enhance preparedness, as well as expert-level work- Security Engagement: A New Model for shops to share best practices and develop means for Cooperative Threat Reduction, 2009, ix. the rapid exchange of technical and operational 27 Global Security Engagement, 8. information among participating states under the 28 Global Security Engagement, 42. condition of appropriate protection of the confi- 29 Global Security Engagement, 102-104. dentiality of any information exchanged in confi- 30 Global Security Engagement, 10, 12. dence; ensuring regular reporting from relevant 31 Nuclear forensics capability and cooperation is departments and ministries regarding progress in highlighted only in the Nuclear Security Summit implementing the Statement of Principles in their documents. It was added as a dimension of desired respective areas of responsibility (this refers to interdiction and detection capabilities to enhance internal reports being prepared for national counterterrorism efforts. purposes in accordance with national procedures 32 This column was added as a dimension that receives and law); and reviewing and, as necessary, attention only in the amended CPPNM, which identi- strengthening on a continuous basis their relevant fies “security culture” as a priority, and the NSS Work national legal authorities to implement the Plan, but is an obvious requirement throughout the Statement of Principles. US Department of State, infrastructure and across all initiatives. “Statement of Principles,” accessed at: http://www.state.gov/t/isn/rls/other/126995.htm. 17 George Bunn, “Enforcing International Standards: Protecting Nuclear Materials From Terrorists Post- 9/11,” Arms Control Today. Available at: http://www.armscontrol.org/act/2007_01-02/Bunn. 18 See “The Race Between Cooperation and Catastrophe” by Sam Nunn presented to the American Academy in Berlin on June 12, 2008 at: http://www.nti.org/c_press/speech_Nunn_Germany 61208.pdf. The Stanley Foundation Stanley Foundation reports, publications, programs, The Stanley Foundation is a nonpartisan, private oper- and a wealth of other information are available on the ating foundation that seeks a secure peace with freedom Web at www.stanleyfoundation.org. and justice, built on world citizenship and effective global governance. It brings fresh voices and original ideas to The foundation encourages use of this report for debates on global and regional problems. The foundation educational purposes. Any part of the material may be advocates principled multilateralism—an approach that duplicated with proper acknowledgment. Additional emphasizes working respectfully across differences to copies are available at www.staneyfoundation.org. create fair, just, and lasting solutions. The Stanley Foundation The Stanley Foundation’s work recognizes the essential 209 Iowa Avenue roles of the policy community, media professionals, and Muscatine, IA 52761 USA the involved public in building sustainable peace. Its 563-264-1500 work aims to connect people from different back- 563-264-0864 fax grounds, often producing clarifying insights and innova- [email protected] tive solutions.

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