The US has tried to fit the PSI into international law by dressing it up in the language of international law and later by claiming it constitutes “self-defense” but few are buying that. Even some in the US worry that it could just as easily be applied to the US.

Since the PSI is selectively applied to
states which are designated (by whom?) of “proliferation concern” this raises even more doubts that the PSI constitutes a general norm or standard of international law. It is at best a multilateral agreement which is enforceable only among its participants but which is otherwise contrary to international law.

I think it’s more than fair to include the IAEA in the list of “institutions” that Rumsfeld was talking about.

No. The PSI does not empower countries to do anything they couldn’t already do within existing international law.

Take Japan for example, which has an advanced nuclear program that is capable of supplying fissionable material for nuclear weapons. Japan could probably weaponize in a matter of months if they so desired. However, Japan is still under US military protection in many respects, so weapons would not benefit them. However, if Japanese-US relations soured, and Japan was left on its own to defend itself and its interests against North Korea and China, I think Japan would have to seriously consider a weapons program for deterrence. As old Cold War alliances and interdependencies change, more countries will consider a nuclear weapon capability to ensure their security against real and perceived threats.

The NPT itself is a problem from a proliferation standpoint. It guarantees access to “peaceful” nuclear technology without defining what is peaceful and what is not. As we see with Iran, interpretation of the NPT largely comes down to intent – what is a particular country’s purpose in pursuing nuclear technology and particularly dual-use technology like enrichment? This is at the heart of the argument in Iran, with the Iranians insisting their intentions are peaceful and the US and others insisting that they are not. How is it possible to definitively determine one way or another? Safeguards agreements are largely useless against a covert program based on technology gained from a civilian program. Iran was able to hide its so-called “civilian” infrastructure for years. Once it masters the full fuel cycle, I don’t have much faith that the current agreement will detect or prevent a covert enrichment program.

Article V is a curious and, in my view, archaic provision of the NPT which allows non-nuclear countries access to peaceful applications of nuclear explosions. I don’t how it’s possible to, on one hand, call for complete disarmament (art. VI) while permitting “peaceful” nuclear explosions. How is one to have peaceful nuclear explosives without having weapons?

Finally, technology has advanced to the point where developing covert programs is easier than during the Cold War. Although the IAEA has a decent record of monitoring, it didn’t discover the Iraqi EMIS program until after the first Gulf War, and were it not for Libyan cooperation, the extent of AQ Khan’s proliferation might still be secret today. It’s impossible to say if other hidden programs are yet undiscovered, but it’s certainly a possibility, even a probability depending on your faith in the system of safeguards.

So I would like to see a newer, much stricter NPT, but that is probably a fantasy. It’s doubtful the non-nuclear countries would agree to greater limits on their current rights to nuclear technology. Unless the NPT is strengthened, however, I fear that we are now seeing the beginning of a downward trend as more countries obtain the capability to develop nuclear weapons along with the desire to possess them.

Apparently this report is filed by State to Congress regularly. Wonder what’s in it.