University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 1995 Law and the H-Bomb: Strengthening the Nonproliferation Regime to Impede Advanced Proliferation Richard L. Williamson Jr. Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the International Law Commons Richard L. Williamson, Jr. * Law and the H-Bomb: Strengthening the Nonproliferation Regime To Impede Advanced Proliferation Introduction .................................................... 72 I. Background to the Advanced Proliferation Problem ....... 77 A. Definition of Advanced Proliferation .................. 77 B. The Science and Technology of Nuclear Weapons ..... 77 C. Reasons for Concern with Advanced Proliferation ..... 82 1. Increased Risk of Widespread Casualties ........... 87 2. Increasingly Serious Consequences in the Event of Accidental Nuclear War, Nuclear Civil War, or Nuclear Terrorism ................................ 89 3. Reduction in the Relative Strength of the Major Powers ........................................... 89 4. Harm to Prospects for Greater Reliance on International Peacekeeping ....................... 90 5. Diminished Prospects for Further Arms Control ... 90 6. Increased Pressure for Destabilizing, Expensive, or Dangerous Responses ............................. 91 7. Possible Decline in Civil Liberties ................. 91 D. Elements of Advanced Proliferation ................... 93 1. Increases in Arsenal Size .......................... 93 2. Increases in Explosive Power ...................... 97 3. Reduced Requirements for Special Nuclear M aterial .......................................... 101 4. Enhanced Deliverability ........................... 102 5. Greater Safety and Survivability ................... 103 * Professor of Law, University of Miami. J.D., Harvard Law School, 1984; MA, The American University, 1977; A.B., University of Southern California, 1967. This article deals with the law and policy of nuclear nonproliferation. In that regard, the author formerly was Chief of the International Nuclear Affairs Division of the U.S. Arms Control and Disarmament Agency (ACDA) and for six years dealt personally with a number of the issues and incidents discussed in this article. The author has had no access to classified information for over twelve years, and to the best of his knowledge, this article contains none. The author would like to thank the many individuals in the federal government who provided information under assurances of anonymity. He would also like to express his special appreciation to Thomas W. Graham of the Rockefeller Foundation and his colleague, Bernard H. Oxman, for their invaluable suggestions, and to his research assistants on this project, Jennifer Jones, Olga Kazakevitch, and Irit Tamir. 28 CORNE. INT'L LJ. 71 (1995) Cornell InternationalLaw Journal Vol 28 6. Acquisition of Better Delivery Systems ............. 103 II. The Nuclear Nonproliferation Regime and International Law ..................................................... 109 A. The Legality of Advanced Proliferation ................ 109 B. Nature of the Existing Nonproliferation Regime ....... 117 C. Vitality of the Nonproliferation Regime ............... 122 I. Legal Instruments To Restrain Advanced Proliferation ..... 128 A. Strengthening the Existing Nonproliferation Regime To Deal with Advanced Proliferation .................. 130 1. Obliging All States Not To Assist the Acquisition of Nuclear Weapons ................................. 131 2. Information Controls for Boosted and Thermonuclear Weapons .............. : .......... 133 3. Special Export Controls for Advanced Proliferation ............................................. 135 4. Developing a New International Crime: Mercenary of Weapons of Mass Destruction .................. 140 5. Adopting a System of Challenge Inspections ....... 145 B. Adopting Additional Restraints on Strategic Delivery Systems .............................................. 146 1. Multilateral Treaties To Constrain Ballistic Missile Development and Deployment .................... 146 2. Strengthening the Missile Technology Control Regim e .......................................... 147 3. Forbidding the Transfer of Other Strategic Delivery System s .......................................... 150 a. Ban the Sale of All Bombers .................. 151 b. Ban the Sale of Nuclear Submarines and of Missile Submarines ........................... 153 c. Limit the Transfer of Aircraft Carriers ......... 154 C. New Arms Control Initiatives To Freeze Threshold Nations' Nuclear Weapons Capabilities in Place ....... 155 1. A Treaty Banning Production of Nuclear Materials for W eapons ..................................... 157 2. A Comprehensive Test Ban Treaty ................ 161 Conclusion ...................................................... 166 Introduction Suppose that in 1996, a virulently anti-Western, antisecular, anti-Christian, anti-Jewish Islamic extremist group takes over Saudi Arabia, Yemen, the United Arab Emirates, Oman, Qatar, and Bahrain in rapid succession. It fuses them into a new federation following elections which are reasonably fair, albeit carried out in an atmosphere of fundamentalist religious fervor. The new state successfully avoids the excesses of many recent revolu- tions-taking no foreign hostages, violating the immunity of no embassies, and seizing no neighboring territory. In short, it takes no steps which would give the other regional powers, the West, or the world community 1995 Law and the H-Bomb at large any handy pretext, let alone justification under international law, to intervene. Then, applying its enormous wealth to the acquisition of advanced military capabilities, it strives to become a major regional mili- tary power.' Now consider two different scenarios. In the first, the lessons of Iraq's nearly successful efforts to acquire nuclear weapons are forgotten, and efforts to improve the control of weapons of mass destruction languish. The new federation has only modest difficulty obtaining materials, parts, and expertise relevant to the indigenous construction of nuclear weapons and is able to purchase long range delivery systems. By 2015, the federa- tion has 500 nuclear weapons of a proven, tested design, each powerful enough to destroy a large city. It can deliver these weapons on regional targets or at intercontinental range with purchased state-of-the-art bomb- ers and nuclear submarines, both carrying indigenously produced but ade- quate cruise missiles. In the second case, the world's nations continue to build on the Nuclear Nonproliferation Treaty2 (NPT) and to supplement it with bold, new, and legally binding instruments constraining nuclear weapons and delivery systems.3 As a result, despite its enormous resources, by 2015 the 1. This is a hypothetical, not a prediction; as should be clear from the recent civil war in Yemen, the bigger challenge in the Arabian peninsula is keeping countries from falling apart, not creating new federations. In putting forward this hypothetical, no implication is intended that behavior threatening to the international community is the exclusive province of the Gulf region or of Islamic fundamentalists. Indeed, the most serious current concern is with North Korea, which is seeking nuclear weapons and which has shown itself both willing and capable of carrying out extraordinarily bizarre and dangerous acts. See infra note 38. 2. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter Nonproliferation Treaty or NPT]. 3. As this Article is being written, Saudi Arabia, Qatar, Bahrain, and Yemen are currently NPT parties; Oman and the United Arab Emirates are not. That raises the question of whether, under prevailing state succession doctrine, such a federation would have the option of succeeding to the NPT party status of its former members or the nonparty status of the others. The current state of international law on succession to treaty rights has been properly described as "murky." Stefan A. Riesenfeld & Freder- ick M. Abbott, A U.N. Dilemma: Who Gets the Soviet Seat on the Security Coun6 CHRISTIAN SCI. MONrroR, Oct. 4, 1991, at 19. In U.S. practice, a state succeeds to the treaty obliga- tions and rights of the predecessor state only if it accepts those agreements and the other party or parties agree or otherwise acquiesce in the acceptance. See, e.g., In re Extradition of Tuttle, 966 F.2d 1316 (9th Cir. 1992) (quoting RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAw OF THE UNrrED STATES § 210(3) (1987)). For a more sophisticated view than that of the Restatement, see George Bunn & John B. Rhine- lander, The Arms Control Obligations of the Former Soviet Union, 33 VA. J. INT'L L. 323 (1993). In any case, most discussion concerning the doctrine in recent years has dealt with the break-up of the Soviet Union and Yugoslavia, and not with the fusion of states into a new federation. In this hypothetical, the new federation would not accept obliga- tions of the NPT. Of course, assuming that decision is the new federation's legal right, it could still have political ramifications and bring into question the willingness of the United States and the European Union to recognize the new entity. The EU has made "[a] cceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability" one of the requirements for recognition.