Averting Catastrophe: Why the Nuclear Nonproliferation Treaty is Losing Its Deterrence Capacity and How to Restore It

94 Pages Posted: 28 Jun 2007

See all articles by Orde F. Kittrie

Orde F. Kittrie

Arizona State University (ASU) - Sandra Day O'Connor College of Law


The nuclear nonproliferation regime worked well for its first 25 years, converting the spread of nuclear weapons from an act of national pride into an act of international outlawry. Today, however, the nuclear nonproliferation regime is on the verge of collapse.

Drawing from six case studies (India, Pakistan, Iraq, Libya, Iran and North Korea) and historical data that has recently become available, this Article derives three key lessons applicable to restoring the nuclear nonproliferation regime's capacity to prevent proliferation. The Article illustrates how the regime's weak verification authorities have caused it persistent difficulty in catching violators, and it suggests how to strengthen these authorities. The Article also demonstrates how strong sanctions have in the past succeeded in stopping or slowing the progress of illicit nuclear weapons programs (including those of Libya, Iraq and, for twenty years, India).

In addition, the Article describes the international community's recent failures to seriously sanction states caught violating the nuclear nonproliferation regime. The Article analyzes in detail the weaknesses of Security Council Resolution 1718 (imposed on North Korea in October 2006), Security Council Resolution 1737 (imposed on Iran in December 2006) and Security Council Resolution 1747 (imposed on Iran in March 2007). It points out that the sanctions imposed on North Korea and Iran by these resolutions are far weaker than the sanctions which stopped the Iraqi and Libyan nuclear weapons program. Indeed, the sanctions imposed by these resolutions are weaker than those the Security Council had previously imposed in response to many lesser threats to international peace and security. For example, they are weaker than the sanctions imposed on South Africa in response to apartheid and on Liberia and Cote D'Ivoire during their civil wars, and far weaker than those imposed on Libya in response to its downing of Pan Am flight 103, Sierra Leone in response to its May 1997 military coup, the Federal Republic of Yugoslavia during the Bosnian crisis, and Haiti in response to its 1991 military coup.

The nuclear nonproliferation regime as it exists now has little remaining capacity to coerce, contain, or deter violations. If the regime is not soon enhanced, it is likely to collapse, with grave consequences for international peace and security.

In light of the exceptional difficulty of amending the Nuclear Nonproliferation Treaty (NPT), this Article proposes that enhancements to the International Atomic Energy Agency (IAEA) verification and monitoring authorities be made through a UN Security Council resolution, and it identifies precedents for such an approach. The Article also addresses the two major motivations driving the opposition to sanctions of many states that are avowedly opposed to nuclear proliferation. It argues that humanitarian opposition to strong sanctions on nuclear proliferators may be based on outdated information, including with respect to the impact of sanctions on Iraq, and contributes to updating the historical record. The Article also draws attention to and analyzes the blocking by Moscow and Beijing of Security Council adoption of serious sanctions against proliferators because of the short-term cost to Russia and China of such sanctions, even though the sanctions costs are a good long-term investment for the international community as a whole. The Article concludes by suggesting several directions in which a solution to this problem might be found, including pre-set sanctions, a P-5 cost-shifting agreement, and case-by-case negotiations within the P-5.

Keywords: nuclear, nonproliferation, weapons, Iran, Iraq, Libya, North Korea, sanctions, United Nations, Security Council

JEL Classification: K33, K42

Suggested Citation

Kittrie, Orde F., Averting Catastrophe: Why the Nuclear Nonproliferation Treaty is Losing Its Deterrence Capacity and How to Restore It. Michigan Journal of International Law, Vol. 28, pp. 337-430, 2007, Available at SSRN: https://ssrn.com/abstract=996953

Orde F. Kittrie (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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