Well, now that it’s happened for a third time, what now?  A third strike, and you are out?  One wonders, a day after the third North Korean test, if, in particular, one is worried about the day after Iran’s first test, just what are we to do?

Joe Cirincione, made a statement:  “I still think we’re years away from North Korea having a capability to deliver a nuclear warhead on a missile even to a country as close as Japan or South Korea….And they’re even further away from having a long-range missile that could hit the United States.”

There are many who will not agree with Joe for a lot of varying reasons.  My own include a recent rocket test that had more to do with ballistic missiles than modern telecommunications.  Even if the DPRK satellite tumbles, its tests are or are not of a more advanced design, or for that matter an Iranian launch of a primate of some sort did not result in “success,” the intent is clear.  The view often taken about the DPRK or Iran is that they are “not yet a threat” justifying the use of force.  My concern with such statements is that while they may be intended to allay concerns, they often underestimate dangers and do overlook the tougher questions that sit between a present situation and/or a future war.  The public is often subjected to a kind of nuclear Prisoner’s Dilemma–engage or attack; accept it or remove it.  Separating signals from noise is not a complicated a matter in these cases.  Trying to get folks to act on the signals in time is.

I’ve been working for a long time on a longer essay that may be published in the year on the continuing problems posed by noncompliance, but more importantly, what happens after noncompliance, both in U.S. law and international practice, taking into account what is and is not known about state-level intentions both before and after noncompliance is revealed, and how and when it is revealed in certain cases.  Plainly, it looks at laws (at home and abroad) and responses to the question of “After Detonation–What?”

I doubt I’ll get much past the classic formulation–“After Detection–What?”–but for those concerned with the state of affairs in the DPRK, or Iran, it wouldn’t hurt them to turn back to Iklé’s iconoclastic thinking on the matter–if you have time to think about, rather than simply react to, current events.

I was at a conference in London over two years ago at which a former IAEA official bluntly told me “The NPT is ending.”  That admonition, done not in the open but in a hallway conversation, got me thinking.  It’s an easy thing to dismiss problems that seem intractable or are long-standing.  The problem of benefits that any Non-Nuclear Weapon State Party to the NPT obtains before leaving it are well understood.  I suspect any answers to the present situation will sit somewhere between the modern phenomenon of “the new normal” and some new or novel norms that are not going to amend or replace the NPT but will all have to rely on it for authority.  I also doubt we are smarter about conflict than the generation that gave us the NPT–after all, they fought World War II.  Most folks today don’t think much about wider war among states with nuclear weapons, unless in symposia, and even their dialogue has little to do with what those in government do and say.  To most, nuclear terrorism seems more plausible than nuclear war.  (There are now treaties for both situations.)

Everyone has their favorite articles in the NPT.  (Article VI is au courant, these days).  They are the catechism for the nonproliferation faithful, with various schisms arising, of late.  Some folks have advanced some good ideas regarding NPT noncompliance before a withdrawal is asserted, and others, how rules might be made better or stronger.  Folks spending time with the NPT are often called “purists,” “ayatollahs” or worse.

Some contend that the DPRK’s withdrawal was not “effective,” within the meaning of the treaty.  But the broader and bigger problem sits within Article X of the NPT.

Recall what Iklé wrote:

[The violator] will stand to gain if his violation remains undiscovered or ignored; and he will gain if the violated part of the agreement is cancelled, because the residual agreement will then be more to his advantage.

Iran and North Korea are not being ignored.  But they have been allowed to get away with all the benefits of NPT membership while being in breach of its obligations.  What portion of the NPT gets “cancelled” are peaceful uses of the atom.  But that dual-use equipment and material is something the withdrawing party has obtained and the injured party has usually given them.

Condemnation is unlikely to matter even in a world where such messages are now made more available and faster than ever before.  As Iklé noted in 1960, “One reason world opinion is so impotent is that its memory is short.”  Condemnation will no doubt obtain in the President’s State of the Union Address this evening.  It is my view that it is dangerous to call things “unacceptable” when with each utterance of the adjective there is not a sufficient degree of action demonstrating that something is unacceptable, or that such action and/or information related to it cannot be shared with the public (Op. cit., Iklé, at p. 5).  In such cases, what is unacceptable should not necessarily become unmentionable but rather unadorned with that word.  So too must we do away with portrayal of certain actions as “crippling” that may only be complicating, even if they are still usefully delaying.

How far have we come in the sphere of international relations, in the public realm, on the matter of noncompliance with the NPT?

One of the accomplishments of the George W. Bush Administration was United Nations Security Council Resolution 1540.  The resolution, its implementing committee and the reports made to and by it are good reading.

In 2009, the Obama Administration went to the United Nations to find out what could be done about these problems.  What it got was United Nations Security Council Resolution 1887 (2009), adopted by the Security Council at its 6191st meeting on September 24, 2009.  It was hailed by the Administration as a major accomplishment in dealing with safeguards noncompliance and NPT withdrawal.

When reading over the record, one wonders:  Were there better ideas?

Operative paragraph (18) of UNSCR 1887:

Encourages States to require as a condition of nuclear exports that the recipient State agree that, in the event that it should terminate, withdraw from, or be found by the IAEA Board of Governors to be in non-compliance with its IAEA safeguards agreement, the supplier state would have a right to require the return of nuclear material and equipment provided prior to such termination, non-compliance or withdrawal, as well as any special nuclear material produced through the use of such material or equipment.

Operative paragraph (20) of UNSCR 1887:

Urges States to require as a condition of nuclear exports that the recipient State agree that, in the event that it should terminate its IAEA safeguards agreement, safeguards shall continue with respect to any nuclear material and equipment provided prior to such termination, as well as any special nuclear material produced through the use of such material or equipment.

Neither requirement is unique to UNSCR 1887—they have existed in U.S. statute for many years (42 U.S.C. 2153 (a)(4) and (a)(1), respectively).   Paragraph 20 is the international version of a U.S. legal term “fall-back safeguards”–in an uncharitable interpretation, the position to which a Nuclear Weapon State would repair if and when, after a test or some significant event or information became public, someone accuses it of encouraging or assisting a Non-Nuclear Weapon State’s acquisition of nuclear weapons, so as to claim compliance with its NPT obligations.  Paragraph 18 is the internationalization of the U.S. requirement for a “right of return” in cases of noncompliance.  They are both attenuated matters, to say the least, particularly after a right of withdrawal from the NPT, and IAEA safeguards, is asserted.

Is either paragraph actually being implemented by nuclear supplier states under UNSCR 1887, and how effective a remedy are such exhortations when the record of U.S. implementation of its own law is reviewed?

Has the United States ever invoked the “right of return” specified under section 123 a. (4) of the Atomic Energy Act in any case in which a country with which it maintained peaceful nuclear cooperation terminated, withdrew from, or was found by the IAEA Board of Governors to be in non-compliance with its IAEA safeguards agreement?  (A colleague often used to tell stories about a particular NRC Commissioner asking the Commission if the United States could “send in the Marines” after a particular U.S. agreement went south, Buddha smiled, Uncle Sam frowned and Congress amended U.S. law to deal with future, similar situations.)

The “right of return” sounds very powerful, until one wonders how it would be implemented.  I am sure any number of people have considered how it would be done, but when conditions of clear and existential threats to international security are present, the setting becomes a difficult one in which to imagine it happening given how hard it is to “return” reactors and/or spent fuel, let alone knowledge gained in their operation.  Even if the noncompliant party wasn’t a threat to a supplying party, it could be to another country.  One can imagine any number of diplomatic pleas to enforce the right of return if you live next to the violating party and also maintain relations with the supplying nation.  If so, are we proposing some form of “uncooperative” threat-reduction assistance for such situations if one of the parties to such a dispute is the United States?

Does the “right of return” in both the statute, and by extension, in UNSCR 1887, envision only severe cases of safeguards noncompliance—such as those that would constitute conduct resulting in the termination of nuclear exports under section 129 of the Atomic Energy Act (42 U.S.C. 2158)?

How is UNSCR 1887 an effective remedy in respect of its requirement for “fall-back” safeguards, given that the plain terms of INFCIRC/153 relate to NPT safeguards only while a state is a Party to the NPT?  (The author will not bother the reader with the ambiguities of INFCIRC/66.)

Given UNSCR 1887, how many states are currently negotiating or renegotiating nuclear supply arrangements to require bilateral fall-back safeguards, other than the United States (which must do so, pursuant to its own law)?

What do “fall-back safeguards” actually constitute once a state is no longer a party to the NPT?

What effective multilateral verification mechanisms (not national technical means) could exist in a scenario wherein a withdrawal has been asserted, a weapon has been tested, and neither the IAEA nor a supplier country is in a position to affirm whether any safeguards remain in place on nuclear material, equipment and technology in the noncompliant recipient state (where applicable and required)?

Would such a situation result, for a Nuclear Weapon State, in a legitimate claim that it had “encouraged or assisted” proliferation of nuclear weapons if it had any reasonable basis for believing or knowing that the recipient state might engage in activities leading to nuclear weapons when it entered into a supply arrangement with the violating state?

This long set of questions all relate back to the bigger point:  What are we doing presently under international practice and world opinion that is not some iteration of a new normality wherein noncompliance is, de facto, tolerated?  Yes, North Korea and Iran are under sanctions.  But such sanctions did not happen over night, nor did they on the day of the DPRK’s withdrawal from the NPT or the first IAEA Director General’s report on Iranian noncompliance (and yes, those are both very different situations).  Both Bush and Obama opposed more sanctions when in certain cases, whether in Iran or North Korea, the prospect of a deal was in reach.  In each case, there were missteps even after intention and violation were established.  A critical one in Iran’s case was the 2004 agreement to let it continue UF4 production, which put it a step closer to UF6 for “safety reasons.”  Now, we hear of red lines, and there is no ability to confirm much of anything in Iran in any way that can be used to sway successfully public opinion (among the P5+1–which took the baton from the EU 3 after more than a few IAEA reports and reinterpretations of its own authorities) toward a course of action that might engender a solution, let alone thinking about the proliferated world we shall inhabit the day after Iran’s first, second or third nuclear test.

I often recall a famous Russian question:  Что делать?–What is to be done?  Well, if you are Russian, go sell something to someone else.  That’s their present, and past, answer.

But for the United States, setting the world ablaze is not one of our goals, and it is time we considered what our new norms are, and if UNSCR 1887 is one of them, what they really mean, before we simply, tacitly or otherwise accept the new normality, or call it day for the NPT and go to war, or threaten to go to war.

Fred McGoldrick (who has forgotten more about the Nuclear Suppliers Group (NSG), the NPT and U.S. law than most of know) has a good piece out on these matters.

It’s awfully messy to get into these questions.