December 13, 2016
Leonard S. Spector
Occasional Paper #25
Read the full Occasional Paper #25:
Outlawing State-Sponsored Nuclear Procurement Programs & Recovery of Misappropriated Nuclear Goods
State-sponsored illicit nuclear-procurement activities have played a crucial role in advancing the nuclear programs of Iran and North Korea and will undoubtedly be used by the next country that seeks to pursue a nuclear-weapon capability. Such repeated state-sponsored abuse of other states’ export-control systems undermines a key objective of UN Security Council Resolution (UNSCR) 1540, which requires all states to adopt such controls. However, as this study details, this dangerous conduct has never been condemned as a distinct offense against international norms and rules sufficient to trigger sanctions or other punitive action against the offending state.
This study proposes to outlaw state-sponsored illicit nuclear-procurement programs through the accretion of declarations by international and multilateral bodies condemning this conduct and expressing the intention to consider punitive measures in future cases where this conduct is observed. Even if consensus on such a declaration cannot be reached in every relevant forum, repeated, well-publicized demands for such action by a group of diplomatically influential aggrieved states can have a significant deterrent effect. Importantly, with illicit procurement activities often serving as an early indication of a clandestine nuclear-weapon program, establishing this activity as an offense against international norms would set the stage for early, concerted action against the next offending state, well before its nuclear program might approach its goal.
Establishing this conduct as an international wrong would also create a solid foundation for the second major proposal set out in this study: the development of a carefully crafted set of measures to pursue the recovery of illegally acquired nuclear goods, beginning with parallel demands by aggrieved states and including an international registry of illegally acquired nuclear goods.
In support of this approach, the study highlights several past cases of such “nuclear recovery” and points out that the concept is embedded in the Convention on the Physical Protection of Nuclear Material, in US agreements for nuclear cooperation, and, implicitly, in the 2015 Iran nuclear agreement. Moreover, demands for restitution of illegally acquired goods are the standard approach in many other inauspicious settings.
Even if unsuccessful, the study argues, demanding the return of purloined nuclear goods would underscore the gravity of such illegal activity; vindicate the principles embodied in UNSCR 1540, the Treaty on the Non-Proliferation of Nuclear Weapons, and the Guidelines of the Nuclear Suppliers Group; and delegitimize the nuclear program of the offending state.